Water Resources Law [2nd edition.] 9780409337945, 0409337943, 9780409337952, 0409337951

Table of contents :
Dedication
Full Title
Copyright
Publisher’s Note
Preface
Table of Cases
Table of Statutes
Table of Contents
Part 1 Australian Water Resources and Water Access Policy
Chapter 1 Defining Water Resources in Australia
The nature and scarcity of the resources
The hydrological cycle in Australia
Human development of water resources and the effects
Existing use of water resources
Water quality issues
Potential impacts of climate change
Defining water resources in law
Traditional classification of terrestrial water resources
Statutory definitions of each jurisdiction
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
Northern Territory
Commonwealth
Summary of statutory definitions
Chapter 2 Historical Development of Water Access Rights and Legal Models for Sharing Water Resources
Introduction
Concepts of property and Anglo-American historical models of water access rights
Water resources as common property
Rights of access to water as a species of property
The riparian doctrine
The prior appropriation doctrine
Significance of the common law models of rights
Environmental sustainability
The absence of a common law concept in Australia
The legislative definition of sustainability
Chapter 3 National Water Law Reform Policy
Evolving perceptions of the constitutional reality
Evolving concerns of the Commonwealth
The 1994 CoAG Water Reform Framework
The 2004 Intergovernmental Agreement on a National Water Initiative
The 2007 National Plan for Water Security
The 2008 Agreement on Murray-Darling Basin Reform
Chapter 4 Objectives and Principles of Water Resources Law
Content of objectives and principles
Sustainability
Social and economic benefits
Water resource management principles
Nature of the implementing duty
The terms of the statutory duties
The duty to have regard to relevant considerations
The duty to give effect to the objectives and principles
Subsidiary instruments to define objectives
The precautionary principle in water resources law
Part 2 The Constitutional and Administrative Framework of Water Resources Management
Chapter 5 The Constitutional Framework for Water Resources
Introduction
State authority
‘Ownership’ powers of the states
Legislative powers of the states
Plenary legislative power
Limits under the Commonwealth Constitution
Other limits on legislative powers
Extraterritorial competence
Entrenchment
Commonwealth authority
Interstate and overseas trade and commerce power
Section 100 restriction
Corporations power
External affairs power
Defence
Implied nationhood power
Financial powers
Acquisition of property on just terms
Commonwealth places
Commonwealth capacity to override state authority
The legislative powers of the territories
Cooperative federalism
An overview
Water Act 2007 (Cth) — An analysis of the exercise of Commonwealth power
Conclusion
Chapter 6 The Administrative Framework of Water Resources Management
State and territory institutions
Water resource management
Regulatory agencies
Consultative and advisory bodies: state
Consultative and advisory bodies: regional and local
Water services regulation
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Northern Territory
Australian Capital Territory
Commonwealth institutions
The National Water Commission
The Water Act 2007 (Cth): new institutions and institutional roles
The Commonwealth Environmental Water Holder
Engagement of other Commonwealth agencies
Summary of the institutional role of the Commonwealth
Challenges to governmental decision making
Judicial review
Merits review of administrative decisions
Conclusion
Chapter 7 Interstate Arrangements
Riparian or common law rights of the states
The Murray-Darling Basin Agreements: 1914, 1992, 2008
Early history: the 1914 Agreement
The Murray-Darling Basin Agreement 1992
The institutions
Implementation and enforcement of the 1992 MDB Agreement
Critique of the 1992 MDB Agreement
The Murray-Darling Basin Agreement 2008
The Ministerial Council
The Basin Officials Committee
The Murray-Darling Basin Authority
The Basin Community Committee
Amendment of the Agreement
Enforcement of the Agreement
The Snowy Mountains Scheme
Other interstate arrangements
The New South Wales–Queensland Border Rivers Agreement
The South Australia–Victoria Groundwater Border Agreement
The Ord River Irrigation Scheme
The Lake Eyre Basin Intergovernmental Agreement
The Great Artesian Basin
Canberra water supply
Part 3 The Nature of Water Access Rights
Chapter 8 Common Law Rights to Water
Surface water in defined channels: the right of natural flow incidental to riparian land ownership
Rejected absolute ownership
The general principle: a correlative right to the natural flow
Foundation of riparian rights in ownership of riparian land
Watercourse
A natural watercourse
Seasonal flows
Artificial channels
Underground flows
Right to take and use
Right to natural quality of water: free from pollution
Right to dam, divert and drain
Dam
Diversion
Drain
Acquisition by grant or prescription
Actionable without proof of damage
Ground water — non-regulation
‘Rule of capture’: right to take and use
No cause of action against appropriation
Right to natural quality of water: free from pollution
Rejection of absolute ownership
Right in the surface landowner
Diffused surface water
‘Rule of capture’: right to take and use
Right to natural quality of water: free from pollution
No right to drain or unobstructed flow
Summation of common law rights
Rejection of absolute ownership
Distinct common law regimes
Water flowing in a known and defined channel: generally surface water
Water not flowing in a known and defined channel: diffused surface water and underground water
The problems presented by and the implications of the common law regimes for modern Australian society
Failure to treat water as a unified resource
Transfer barriers
No security
The amount of water and value of rights not measurable
A lesser proprietary status
Incompatible with development of industry, agriculture and infrastructure
Waste
Environmental sustainability and the natural flow
Right to be free from pollution
Recognition of problems and refusal to accept riparian doctrine in the United States
Legislative goals and structures to overcome common law deficiencies
Chapter 9 State Declarations of the Vesting of Rights to Property, Use, Flow and Control of Water
History: the introduction of state vesting clauses
Surface water
Ground water
Current provisions: foundation for water management
Declarations of state sovereignty and control of state ownership
The nature of water as a subject of control, not absolute ownership: imperium, not dominium
The historically uncertain extinguishment and divestment of private rights
The need for clear and plain language to extinguish private rights
Conflict in state Supreme Court decisions
The High Court and extinguishment and divestment of private rights
United States and Canada
State sovereignty and control, not ownership: divestment of private rights of use
Chapter 10 The Express Abolition and Statutory Displacement of Common Law Rights to Water
The problems of the common law
The effect of legislative declarations vesting all rights to control use and flow in the Crown
The express abolition and reservation of common law rights
Express abolition
Express reservation
Displacement of common law rights to take by imposition of licence or other statutory authority
Abolition or displacement of common law right to take in all jurisdictions, but retention of common law rights to flow and quality in some
Chapter 11 Landholder Rights: Rights Exercisable without a Licence by Landholders and Others
The common law problems
Rights exercisable without a licence
Who might exercise rights?
At common law
Owner and occupier: in all jurisdictions
Rights to domestic and stock uses in others: ‘public’ rights in those with rights of access
Permitted uses
Domestic purposes and watering stock
Limitations on use applied to both water flowing in a known and defined channel and ground water
Lesser controls on ground water use: Queensland, Western Australia and Tasmania
No right to ground water use without a licence in Australian Capital Territory
Generally no limits on use of diffused surface water unless prescribed
Use on the land
Emergencies and firefighting
A quantitative limit in Western Australia where supply augmented
Common law problems partially addressed
Chapter 12 Contemporary Access Entitlements
The reform process and contemporary access entitlements
Problems of the traditional water privileges system
The reform process and contemporary ‘unbundled’ water entitlements
The elements of a proprietary water access entitlement
National overview
The requirement for a water entitlement, licence, water share or other authorisation to take water
Overriding place of the water plan: allocation of water to entitlement must be consistent with the water plan
Nature of access entitlements, separation from land title and ‘unbundling’
Duration
Specification of entitlement and conditions
Quantity of entitlement specified
Conditions not the subject of discretionary change
Uncertainty arising from lack of clarity as to risk in the event of shortage of water
The Register and declaration of proprietary nature
The Mining and Petroleum Sectors and NWI cl 34
Conclusion — introduction to the proprietary nature of access entitlements
Chapter 13 Native Title and Indigenous Access to Water
Burden of proof of native title is extremely onerous
The frozen content of native title right to water
The widespread extinguishment of native title
Extinguishment of native title pre-1975
Water resources legislation
Inconsistent grants
Crown reservation
Water control works
Lakes and dams
Extinguishment 1975–1996 under the Native Title Act 1993 (Cth)
Water resources legislation
Grants of water licences and rights
Crown reservations and public works
Deemed extinguishment pre-1996
Compensation
Confirmation of Crown rights to water
Future water development: validation of future acts
Water resources legislation
Grant of water leases, licences, permits or authorities
Crown reservations and public works
Crown reservations
Public works
Compulsory acquisition
No protection of habitat under native title under s 211
Indigenous land use agreements
The National Water Initiative and Indigenous access
Native title
Planning processes
Indigenous access
Native title to water of limited significance
Part 4 Water Resources Planning
Chapter 14 An Overview of the History, Purposes and Effects of Water Resources Planning
The evolution of water resources planning
The era of perceived abundance
Perceptions of water scarcity
Development of statutory planning
Defining sustainability
Water access entitlements and local area management
Whole of catchment management
Foundation for water property rights regime
The need for legislative support for planning
National water policy principles on planning
Chapter 15 The Water Resources Planning System
Introduction
Overview
State plans, water resources assessment and water information
State plans: New South Wales and South Australia
Water resources assessment
The national water information regime
State and territory systems water allocation planning
When to make a plan
Discretionary powers to decide to make a plan
Duties to make plans
Area and water resources subject to a plan
Making a plan
Who prepares the draft plan?
Public notice and consultation on a draft plan
Common law procedural fairness
Approval of a plan
Who approves the plan?
The process of approval
Monitoring, reviewing and amending a plan
Duties to monitor implementation of a plan
Duration and review of plans
Powers and process for amending a plan
The Commonwealth’s System: from the Cap to the Basin Plan
Making and amending the Cap — Schedule F to the Murray-Darling Basin Agreement 1992
The Basin Plan and water resource plans under the Water Act 2007 (Cth)
When to make the Basin Plan or a water resource plan?
Area and water resources subject to Basin Plan and water resource plans
Procedure for making the Basin Plan and water resource plans
Adoption of Basin Plan and accreditation/adoption of a water resource plan
Monitoring, reviewing and amending the Basin Plan and water resource plans
Adjustment in the transition to the Basin Plan
Chapter 16 The Content of a Plan
Overview of state water allocation plans and their mandatory/optional content
New South Wales
Queensland
South Australia
Tasmania
Victoria
Australian Capital Territory
Key issues for state planning
Environmental water allocations
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
Basic rights, including native title
Basic rights to take and use water for domestic and stock watering purposes
Native title rights to take and use water
Allocating water to ‘consumptive use’ under access entitlements
Consumptive pool
Periodic allocations to entitlement holders
Dealing with over-allocation and over-use
Accounting for interceptions from changes of land use: plantation forestry
Assigning risk for future reductions in water availability
Commonwealth planning system: content of the MDB Cap and the Basin Plan
The MDB Cap
The Basin Plan
Overview and mandatory/optional content
Environmental water allocations
Basic rights, including native title
Allocating water to consumptive use
Assigning risk for future reductions in water availability
Chapter 17 The Legal Effect of a Plan
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
The Commonwealth: the Basin Plan
Conclusion — the effect of water allocation planning
Part 5 The Administration of Access Entitlements
Chapter 18 Defining Entitlements
The old form of entitlements
The new NWI form of entitlements
‘Unbundled’ NWI entitlements: access, allocation and use
Works entitlements
The reformed works entitlements
Extraction rates
Partial models of NWI unbundled entitlements: the Australian Capital Territory and Tasmania
The Australian Capital Territory
Tasmania
Environmental access entitlements
New South Wales
Victoria
Non-NWI and transitional forms of entitlements
Queensland and Victoria
Queensland
Victoria
Western Australia and the Northern Territory
Western Australia
Northern Territory
Emerging changes in regulated water resource activities
Summary and scope of the following chapters
Chapter 19 Powers and Procedures for Issuing Access Entitlements
Requirement for authorisation and power to grant
Requirements for statutory authorisation to take water
The power to grant a statutory authorisation
Who may apply for and hold access entitlements
The take and use licence
The NWI water access entitlement
Applications for access entitlements: process
Form of application and the information to be supplied
Notice of the application
Third party rights to object
Duty to determine an application
The duty
Undertakings to grant
Moratorium/embargo on applications
Chapter 20 The Determination of Applications
Criteria for determining applications
Factors to consider
Mandatory refusal or grant
Discretionary grounds of refusal
Priorities between competing applications
First in time to apply
Market mechanisms
Protection of ‘existing users’
On the introduction of statutory access entitlements
On grant of new statutory access entitlements
Chapter 21 Rights and Obligations Conferred by Access Entitlements
Rights of access: the share entitlement
Share entitlement
Tenure
Accounting for periodic (seasonal) allocations
The system for periodic (seasonal) allocations
Water accounting
Resource management conditions
For take and use licences
For NWI Water Access Entitlements
Fees and charges
Characterising the fees and charges
Authority to impose fees and charges
Water charge rules under the Water Act 2007 (Cth)
Chapter 22 Variation, Suspension and Cancellation of Entitlements and Claims for Compensation
Variation, suspension and cancellation
Variation
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Australian Capital Territory
Northern Territory
A comparative summary and potential principles
Suspension and cancellation
Compensation for variation or loss of entitlements
General propositions
Provisions for compensation
Compulsory and market acquisition
Part 6 Water Trading
Chapter 23 The Object of and Rationale for Transferability
Introduction
Failure of public administration system and the water management problem
The wider world stage
Environmental concerns come to the fore
Reform, transferability, trade and the market in Australia
Embracing the market
Transfers and CoAG
1994 water audit
Competition, transferability and other key policy documents embracing markets
Articulating objects and rationale
Transferability and the market: doubts or teething problems?
Environmental concerns
Volume of transfers/trade
Social effects
International trade agreements and domestic water governance
Cultural concerns
A sufficiently scrutinised rationale?
Conclusion
Chapter 24 The Historic Non-Transferability of Water Access Rights in Australia
Introduction
Indigenous rights to water in Australia
An inherited common law system — riparian and other common law rights to water
The doctrine of prior appropriation in the western states of America
Impediments of common law riparianism
The public administration of water
Background
Key legislation of the public administration era
Vesting the Crown with a right to use and control
Types of rights and privileges in the era of public administration
Statutory riparian rights
Statutory privileges/permissions
Rights in irrigation schemes
The introduction of limited transferability of water entitlements
Conclusion
Chapter 25 Contemporary Transferability
Introduction
Scope of rights that may be transferred
Overview of the water markets
New South Wales
The tradable entitlements
Provisions for transferability and ministerial consent
General dealings requiring ministerial consent
General dealings not requiring ministerial consent
Water allocation assignment dealings
The framework for determining consent
The interaction of dealing principles, Plan Rules and legislation
Trade of environmental access entitlements
The registration system
Queensland
The tradable entitlements
Provisions for transferability and ministerial consent
Resource operations licences and distribution operations licences
Water licences
Water allocations
Seasonal water assignments
The framework for determining consent
Resource operations licences
Water licences
Water allocations
Seasonal water assignments
The registration system
South Australia
The tradable entitlements
Licences
Water allocations
Delivery capacity entitlements
Provisions for transferability and ministerial consent
The framework for determining consent
The registration system
Tasmania
The tradable entitlements
Provisions for transferability and ministerial consent
Water licences and water allocations
Irrigation rights
The framework for determining consent
Water licences and water allocations
Special licences
Irrigation rights
The registration system
Victoria
The tradable entitlements
Provisions for transferability and ministerial consent
Water licences
Water shares
Water allocations
Delivery shares and extraction shares
Water-use licence and a water-use registration
Bulk entitlements and environmental entitlement
The framework for determining consent
Water licence transfer consent
Consent/approval to the transfer of a water share or water allocation
Consent to transfer of bulk entitlements
Consent to transfers of environmental entitlements and allocations
The registration system
Western Australia
The tradable entitlements
Licences
Water entitlements
Agreements with a licensee
Provisions for transferability and ministerial consent
Licences and water entitlements
Agreement with a licensee
Transfers to the Minister
The framework for determining consent
Licences and water entitlements
Agreements with licensees
The registration system
Australian Capital Territory
The tradable entitlements
Provisions for transferability and ministerial consent
Licences
Water entitlements
The framework for determining consent
The registration system
Northern Territory
The tradable entitlements
Provisions for transferability
The registration system
Interstate water trade and the Water Act 2007 (Cth)
The Pilot Interstate Water Trade Project
The MDB Agreement, Schedule D
The Water Act 2007 (Cth): principles relating to the Basin water markets and trading
Water charge rules
Water market rules
Water trading rules
The Commonwealth Environmental Water Holder
Conclusion
Part 7 Conclusion on Sharing Water Resources in Australia
Chapter 26 The Australian Model of Water Access Rights
Property rights in water and sharing scarcity
Defining the proprietary rights
An overview of the model of access rights for sharing water resources
The planning system and environmental sustainability
Chapter 27 The Minerals and Petroleum Sectors and Water Access Rights
Introduction
Common law and legislative history
Common law — water access aligned with mineral access
Legislative history — mining access to water resources
Western Australia
Queensland and New South Wales
Summary
Legislative history — petroleum access to water resources
Western Australia
Queensland
New South Wales
Summary
Current provisions for extractive industries’ access to water resources compared to the NWI model
Western Australia
Queensland
New South Wales
EPBC Act water trigger
Summary
Mechanisms for integrated decision making and adaptive management
Integrated decision making
Western Australia
Queensland
New South Wales
Adaptive management
Conclusion
Index

Citation preview

WATER RESOURCES LAW Second Edition

‘For my Dad, who taught me the love of work; for my Mum, who taught me the love of nature; and for my wife, Ping, who shares my love of both’. AG ‘To Maryrose and Jim’. RHB ‘To David, who taught me to see many things differently and to my children, who taught me unexpected things’. JSG ‘To those who give us life’. RLN

WATER RESOURCES LAW Second Edition A Gardner BA, LLB (Hons) (ANU), LLM (UBC) Professor, Faculty of Law, University of Western Australia Adjunct Professor, ANU College of Law, Australian National University Barrister and Solicitor of the Supreme Court of Western Australia

R H Bartlett LLB (Hons) (Leeds), LLM (Alberta), Ph.D (UWA) Professor of Law, University of Western Australia Director of the Centre for Mining Energy and Natural Resources Law, University of Western Australia

J Gray BA, LLB, (Grad) Dip Ed, MA (UNSW), Grad Dip Legal Prac (UTS), PhD (UEA) Solicitor of the Supreme Court of New South Wales Senior Lecturer, School of Law, UNSW Australia Affiliate, Connected Waters Initiative Research Centre, UNSW Australia

R Nelson BE (Environmental) (Hons)/LLB (Hons) (Melb), JSM (Stanford), JSD (Stanford) Senior Lecturer, Melbourne Law School, University of Melbourne Fellow (Non-Resident), Stanford Woods Institute for the Environment, Stanford University, Barrister and Solicitor of the Supreme Court of Victoria

M Wesson BA LLB (UKZN) BCL DPhil (Oxon) Senior Lecturer, Faculty of Law University of Western Australia

LexisNexis Butterworths Australia 2018

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PREFACE Australian water resources law is poised at a pass. Looking back, we can see over two decades of remarkable reforms that have garnered international interest and, generally, national approval during the climatic challenges of the Millennium Drought and the floods that followed. Looking forward, one might see a lush valley vista of productive activities amid ribbons of blue and patches of green — except for that haze of climate change and those parched stream beds where the water extractions have not been metered. Depending on your perspective, you may be appreciative or apprehensive about the effects of Australia’s national policy of water reform, the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’).1 According to Australia’s Productivity Commission: The NWI is a shared commitment by governments to: increase the efficiency of Australia’s water use; provide investment confidence and supply security for rural and urban communities; provide greater certainty for the environment; and ensure regular reporting and independent assessment of progress.2

The Productivity Commission has been tasked with monitoring the progress of the NWI. The September 2017 draft National Water Reform report says good progress has been made, but that progress has slowed to the extent that there are some signs of ‘backsliding’, even when there are unfinished reforms. Leading the list of unfinished reforms is the omission by Western Australia and the Northern Territory to introduce the NWI model of tradable water access entitlements supported by statutory water planning systems that secure both environmental and consumptive use values. The list also includes persistent issues about extractive industries’

impacts on water resources and the new proposals to incorporate ‘alternative’ water sources within a water management framework that will be more resilient to projected climate change impacts, especially in southern Australia. A key draft recommendation is for the Australian Commonwealth, state and territory governments to negotiate a renewed NWI by 2020 — a suggestion that harmonises with specialist scholarly opinion on the need for further water reform to manage the sharing of the water resources for a sustainable future.3 Water resources law provides the legal framework for sharing water resources, especially in times of scarcity. Australian water resources law is mostly state and territory law. It has been significantly reformed in the past 20 years to implement the national water reform policy agreements adopted by the Council of Australian Governments (‘CoAG’), especially in 1994 and in the 2004 NWI. These legislative reforms are the most significant since Australian water resources statutes were first enacted over a century ago. The Commonwealth has also greatly increased its national role by enacting the Water Act 2007, which authorises the making of the 2012 ‘Basin Plan’ to oversee water resources management in the Murray-Darling Basin (‘MDB’) and other nation-wide operations. While the legislative reforms and executive implementation have been extensive, there is still much to do to implement the Basin Plan,4 especially in the face of serious allegations of a culture of non-compliance with the NWI entitlement regime in parts of New South Wales and Queensland.5 Beyond the MDB, there is also a great need to enhance the understanding of water resources law and the NWI reforms. We hope this book will guide many people in that quest. This book gives a carefully researched and scholarly account of the legal history and policy development of the reforms, while also explaining in practical terms how the new water resources legislation endeavours to implement the national reform policies — or how it sometimes fails to do so. In particular, it explores the twin reform themes of the establishment of statutory water

resources planning to secure environmental sustainability, and the transition to a new water access rights regime centred on proprietary ‘water access entitlements’ that are tradable in regulated water markets. The book is comprehensive in that it discusses the law of each Australian jurisdiction. We also hope that it is accessible for both lawyers and non-lawyers who work with water resources. With its detailed referencing, it will be a valuable resource for the professional or scholarly reader wanting to delve deeper into the relevant common law, legislation and case law. In a general way, the structure of the book unfolds in the basic pattern of much of the water resources legislation. The book has seven parts, with 26 chapters, and a supplementary online chapter 27. Part 1 defines Australian water resources and gives an introductory overview of water access policy. It explains the historical development of water access rights and legal models for sharing water resources, before introducing the national water law reform policy and the guiding objectives and principles of water resources law. Part 2 explains the constitutional and administrative framework of water resources management, including the important interstate arrangements. The reader is introduced to the important institutions of water resources management, especially in the Murray-Darling Basin. Part 3 addresses the nature of water access rights, explaining their common law background and the evolution of the statutory foundations of contemporary water access rights. It explains the effect of state declarations of control over water resources, landholder rights, contemporary access entitlements and Indigenous rights of access. Part 4 is a detailed study of water resources planning, which provides the community perspective on water resources management. It begins with an overview of the history, purposes and effects of water resources planning. It then explains the

pertinent elements of national water reform policy and how it has been implemented in the statutory provisions for the process, content and legal effect of the water allocation planning system. Part 5 addresses the administration of individual access entitlements. It defines the legal character of access entitlements, especially the new water access entitlements, and explains the statutory provisions for administering them from the stage of grant to variation or cancellation. Part 6 is a detailed account of the law and policy of water trading in Australia. It commences with an analysis of the object of and rationale for water trading before exploring the history of the nontransferability of water access rights. It then examines the provisions for contemporary transferability and water market regulation. Part 7 concludes with a brief evaluation of the Australian model of water access rights and an exploration of the mining and petroleum sectors’ interaction and water access rights. We have generally revised the relevant law up to 31 July 2016, though most of Part 4 and chapter 25 are current to December 2016. As with the initial publication, the revision of this book has been a team effort. Alex has revised Parts 1, 2, 4, and 7, with the leading assistance of Murray on the constitutional chapter (chapter 5). Richard revised Part 3, with assistance from Alex and Janice on chapter 12. Rebecca revised Part 5. Janice revised Part 6, with considerable assistance from Rebecca and Alex on chapter 25. Madeleine Hartley and Rachel Rice helped greatly on, respectively, the New South Wales and Queensland sections of chapter 25. For this second edition, Alex thanks Fiona Lester for her extensive research and editorial assistance on Part 4; and Maria Riedl who keeps him informed with voluntary research on the Murray-Darling Basin. Most of all, Alex thanks his wife, Ping, for her unwavering support of his many long hours in the office. Janice Gray wishes to thank the Faculty of Law at the University

of New South Wales for its support and, in particular, Natalie Hodgson for her research assistance. She also thanks Alex Gardner for continuing to drive the project, and her husband, David, for his sacrifices and support. Rebecca Nelson acknowledges the invaluable research assistance provided by the Melbourne Law School Academic Research Service; in particular, by Robin Gardner, Fiona MacDowall and Abbey Lay. We all thank the truly wonderful staff of LexisNexis for their patience and professionalism, especially Jennifer Burrows and Georgina Gordon, who managed the revision process through the exigencies of our academic circumstances. We give particular thanks to our editors, India Lopez and Natasha Broadstock, who edited the chapters with skill and speed. Alex Gardner Richard Bartlett Janice Gray Rebecca Nelson November 2017

1.

Australian Government, Department of Agriculture and Water Resources, ‘National Water Initiative’: A copy of the NWI is available on the archived website of the National Water Commission: .

2.

Australian Government, Productivity Commission, National Water Reform, Draft Report, September 2017, p 3. The final report is due by 31 December 2017. C Holley, D Sinclair and 12 other participants in a water law workshop at the University of New South Wales Faculty of Law, ‘The Future of Water Reform in Australia — Starting a Conversation’ (2016) 31(4) Australian Environment Review 132.

3.

4.

5.

Australian Government, Murray-Darling Basin Authority (‘MDBA’), Report by the Murray-Darling Basin Ministerial Council to the CoAG, ‘Implementing the Basin Plan, March 2017, available on the MDBA website: and follow links to ‘About us’, ‘Governance’ and ‘Ministerial Council’. MDBA, ‘The Murray-Darling Basin-wide Compliance Review’, November 2017, available on the MDBA website: and follow links to

‘Basin Plan roll-out’ and ‘Compliance’.

TABLE OF CASES References are to paragraph numbers

A Acton v Blundell (1843) 13 LJ Ex 289; 152 ER 1233 …. 8.33, 8.35, 8.42 Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48 …. 12.17 Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 …. 21.25 Aisbett v City of Camberwell (1933) 50 CLR 154 …. 8.11 Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 204 FCR 1; 270 ALR 564; [2010] FCA 643 …. 24.8, 24.14, 24.15 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209; [2013] HCA 33 …. 13.3, 24.14, 24.16, 24.20 Alanvale Pty Ltd and AJ & KM Graham Pty Ltd v Southern Rural Water [2010] VCAT 480 …. 4.49, 20.5 Alliance to Save Hinchinbrook v The Chief Executive [2006] QSC 084 …. 4.43 Anderson v Western Australia [2000] FCA 1717 …. 13.3 Aoraki Water Trust v Meridian Energy Ltd [2005] 2 NZLR 268 …. 20.19, 20.31 Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242 …. 5.37, 5.63, 22.25

— v — [2014] NSWCA 386 …. 15.4, 15.39, 15.42 — v — [2015] HCASL 115 …. 15.4 — v — (No 6) [2013] NSWLEC 73 …. 15.4, 15.14, 15.20, 15.49 Ashworth v Victoria (2003) 125 LGERA 422; [2003] VSC 194 …. 8.34, 8.45, 10.4, 16.51, 19.7 Attorney General v Bradney (1903) 20 WN (NSW) 247 …. 9.23 Attorney-General (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (1976) 138 CLR 492 …. 5.29 Attorney-General for the Northern Territory v Chaffey; Santos Ltd v Chaffey (2007) 231 CLR 651 …. 22.25 Attwood v Llay Main Collieries Ltd [1926] Ch 444 …. 8.18, 8.19, 8.32 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 …. 5.31 Australian Fisheries Management Authority v Graham (2003) 127 FCR 437 …. 16.90 — v P W Adams Pty Ltd (1995) 61 FCR 314 …. 4.29

B Baarmutha Residents Association Inc v Indigo Shire Council (2005) 142 LGERA 204; [2005] VCAT 1521 …. 15.54 Ballard v Tomlinson (1885) 29 ChD 115 …. 8.31, 8.37, 8.38 Bandjalang People (No 1) and (No 2) v Attorney General (NSW) [2013] FCA 1278 …. 13.3 Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 …. 13.2, 13.3, 13.7 Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503 …. 4.10, 4.29, 4.30 Barrington–Gloucester–Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 …. 12.17

Barro Group Pty Ltd v Brimbank City Council (2012) 36 VR 281; [2012] VSC 154 …. 4.24 Barry v Heider (1914) 19 CLR 197 …. 25.37 Bates v Southern Rural Water [2004] VCAT 2045 …. 16.98, 20.30 Beaudesert Shire Council v Smith (1969) 120 CLR 145 …. 9.23, 9.25, 9.27 Bennetts v Honroth (1959) SASR 170 …. 8.49 BHP Billiton Minerals Pty Ltd v Martu Idja Banyjima People as Registered Native Title Claimants [2010] WAMW 1 …. 12.17 Bicket v Morris (1866) LR 1 Sc & Div 47 …. 8.25, 8.27 Black v Ballymena Township Commissioners (1886) 17 LR Ir 459 …. 8.5, 8.13 Bodney v Bennell (2008) 167 FCR 84; 249 ALR 300; [2008] FCAFC 63 …. 13.2 Brace v South East Regional Housing Association (1984) 270 EG 1286 …. 8.35 Bradford Corp v Ferrand [1902] 2 Ch 655 …. 8.5 — v Pickles [1895] AC 587 …. 8.35 Brady (on behalf of the Western Yalanji People (No 4)) Queensland [2013] FCA 958 …. 13.3 Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 …. 15.47 Bribery Commissioner v Ranasinghe [1965] AC 172 …. 5.20 Bridgetown-Greenbushes Friends of the Forest Inc and Anor v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380 …. 14.42, 15.40, 15.53 Briscoe v Drought (1859) 11 Ir CL 250 …. 8.10 Broadbent v Ramsbottom (1856) 11 Ex 602; 156 ER 971 …. 8.26, 8.43, 8.44, 8.45 Broken Hill Property v Dagi [1996] 2 VR 117 …. 5.20

Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 …. 5.15 Brown v West (1990) 169 CLR 195 …. 14.45 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 …. 5.16 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42; 68 ALJR 331; Aust Torts Reports 81-264 …. 8.23, 8.27, 8.37, 8.38, 8.46

C C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 …. 22.24 Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; [1994] 1 All ER 53 …. 8.23, 8.38 Cape York Aboriginal Land Council v Boyland, Executive Director of the Department of Environment [2000] QCA 202 …. 4.28 Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (2007) 162 ACTR 1 …. 20.8 Castle v Southern Rural Water Authority [2008] VCAT 2440 …. 4.49 Central Control Board v Cannon Brewery [1919] AC 744 …. 9.22 Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) (2003) 116 FCR 390 …. 16.136 Chang v Laidley Shire Council (2007) 81 ALJR 1598; [2007] HCA 37 …. 22.24 Chasemore v Richards (1859) 7 HL Cas 349; 11 ER 140; [1843–60] All ER Rep 77 …. 8.5, 8.6, 8.7, 8.23, 8.24, 8.34, 8.41, 8.42, 8.44, 11.1 Cheinmora v Western Australia (No 3) [2013] FCA 769 …. 13.3 City of Collingwood v Victoria (No 1) [1993] 2 VR 66 …. 5.20 — v — (No 2) [1994] 1 VR 652 …. 5.20

City of Oakleigh v Brown (1956) VLR 503 …. 8.49 Clissold v Perry (1904) 1 CLR 363 …. 9.22 Close on behalf of the Githabul People v Minister for Lands (NSW) [2007] FCA 1847 …. 16.60 Coast and Country Association of Queensland Inc v Smith [2015] QSC 260 …. 12.17 Coffin v Left Hand Ditch Co 6 Colo 443 (1882) …. 8.66, 24.25, 24.26 Cole v Whitfield (1988) 165 CLR 360 …. 5.12 Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners (1927) 38 CLR 547; [1927] AC 343 …. 9.22 Commonwealth v Akiba (2012) 204 FCR 260 …. 24.14 — v Colonial Combing Spinning and Weaving C Ltd (1922) 31 CLR 421 …. 14.45 — v Hazeldell [1918] 25 CLR 552 …. 9.22 — v Tasmania (1983) 158 CLR 1 …. 5.35, 5.39, 5.43, 5.50, 22.25, 23.29 — v Yarmirr (2001) 208 CLR 1; 184 ALR 113; [2001] HCA 56 …. 13.3, 24.8, 24.10, 24.11, 24.13 Comserv (No 1877) Pty Ltd v Wollongong City Council [2001] NSWSC 302 …. 8.51 Conroy v Goulburn Murray Water [2009] VCAT 2108 …. 19.22 Cook v City of Vancouver [1914] AC 1077 …. 9.29 Cooper v Corporation of Sydney (1853) 1 Legge 765; NSWSC 765 …. 8.3, 8.5, 8.45 Corish Farms P/L v D-G, Department of Natural Resources [2000] QSC 283 …. 19.22, 19.24 Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96 …. 8.10, 8.11 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 …. 20.8

Coulter v TM Burke Pty Ltd (1960) VR 16 …. 8.49 Coulton v Holcombe (1990) 20 NSWLR 138 …. 14.10, 15.26 Cox v Journeaux (1934) 52 CLR 282 …. 5.31 Crossley and Sons v Lightowler (1866) LR 3 Eq 279 …. 8.32 — v — (1867) 2 Ch App 478 …. 8.32 Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 …. 5.31 Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 …. 19.23

D Daniel v Western Australia [2003] FCA 666 …. 13.3, 13.7 Davis v Commonwealth (1988) 166 CLR 79 …. 5.49, 5.50 Daws v M’Donald (1887) 13 VLR 698 …. 8.10 De Rose v South Australia [2002] FCA 1342 …. 13.3 — v — [2013] FCA 988 …. 13.17 De Tournouer v Chief Executive, Department of Environment and Resource Management [2009] QCA 395 …. 20.17 Deasy Investments P/L v Monrest P/L [1996] QCA 466 …. 8.23, 8.27, 8.38, 8.46 Dickinson v Grand Junction Canal Co (1852) 7 Ex 282; 155 ER 953 …. 8.44, 8.45 District Council of Kingscote v Kangaroo Island Eco Action Inc (1996) 92 LGERA 117 …. 14.42, 20.11 Donohue v Australian Fisheries Management Authority (2000) 60 ALD 137 …. 16.136 Dougherty v Ah Lee (1902) 19 WN (NSW) 8 …. 9.23 Dowling v Commissioner of Water Resources [1993] 1 Qd R 70; (1991) 74 LGRA 420 …. 14.45, 20.23, 21.27 Drake No 2, Re (1979) 2 ALD 634 …. 14.41 Dubois v District Council of Noarlunga (1959) SASR 127 …. 8.49

Dudden v Clutton Union Guardians (1857) 1 H & N 627; 156 ER 1353 …. 8.26 Dunn v Collins (1867) 1 SALR 126 …. 8.3 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 …. 5.7, 22.24

E Earl of Sandwich v Great Northern Railway (1878) 10 ChD 707 …. 8.18 Earle v Melton City Council [2017] VCAT 481 …. 15.3 East Melbourne Group v Minister for Planning (2005) 142 LGERA 164; [2005] VSC 242 …. 15.54 Ecclestone v O’Keefe [2007] NSWSC 159 …. 10.10 Edwards v Rural Municipality of Scott [1934] 1 WWR 33 …. 8.45, 8.50 Elandes Nominees Pty Ltd v Minister for Water Resources [2002] SAERDC 130 …. 14.41 Elston v Dore (1982) 149 CLR 480 …. 8.51 Embrey v Owen (1851) 6 Exch 353; 155 ER 579 …. 8.7, 8.16, 8.19, 8.21, 8.27 English v Metropolitan Water Board [1907] 1 KB 588 …. 8.36 Environment Centre Northern Territory Inc v Minister for Land Resource Management [2015] NTSC 30 …. 6.40, 19.20 Environment Protection Authority v Rashleigh [2005] ACTCA 42 …. 10.8, 10.11, 14.41 Environmental Protection Authority and the Minister for Environment (WA), Re; Ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136 …. 4.25 Environmental Protection Authority v Rashleigh [2005] ACTCA 42 …. 17.18, 17.24 Esquimalt Waterworks Co v City of Victoria (1906) 12 BCR 302 ….

9.29

F Far West Coast Native Title Claim — Roberts v South Australia (No 7) [2013] FCA 1285 …. 13.3 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 …. 5.13 Farm Investment v Carpenter 61 P 258, 265 (1900) …. 9.28 Fisher (on behalf of the Ewamian People (No 2)) v Queensland [2013] FCA 1249 …. 13.3 Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257 …. 20.19, 20.31 Florida v Georgia No 22O142 ORG, 4 October 2013 …. 7.3 FMG Pilbara Pty Ltd [2012] NNTTA 103 …. 13.19 Forrest & Forrest Pty Ltd v Wilson (2017) 91 ALJR 833; [2017] HCA 30 …. 16.32, 25.6 Fortescue Metals Group Ltd v Commonwealth (2013) 300 ALR 26 …. 5.66 Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 95 LGERA 229 …. 4.25 Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2) [2016] NSWLEC 16 …. 4.47 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207 …. 12.17 Fulton v Northern Territory [2013] FCA 1088 …. 13.3 Furness v Clarke (1970) 1 SASR 359 …. 8.51

G Gale’s Holding v Tweed Shire Council [2013] NSWCA 382 …. 8.51 Gardiner v Miller (1956) 56 SR (NSW) 122 …. 8.10 Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27 …. 1.43, 8.2,

8.10, 8.11, 8.12, 8.48, 8.49, 8.51, 24.21 Gibbons v Lenfestey (1915) 84 LJ (PC) 158 …. 8.48, 8.49 Glengyle Proprietors v Minister for Environment and Conservation [2009] SASC 376 …. 20.9 Goulburn Murray Rural Water Authority v Rawalpinidi [2010] VSC 166 …. 15.54 Grand Junction Canal v Shugar (1871) LR 6 Ch 483 …. 8.36 Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401 …. 4.25 Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 …. 17.4, 17.24 Greyvensteyn v Hattingh (1911) AC 355 …. 8.48 Gumana v Northern Territory (2007) 153 FCR 349 …. 24.8 Gunns Ltd v Tasmania [2015] TASSC 52 …. 19.22, 19.23

H Ha v New South Wales (1997) 189 CLR 465 …. 5.12 Hancock Coal Pty Ltd v Kelly and Department of Environment and Heritage (No 4) [2014] QLC 12 …. 12.17 Hansen v Burrum Shire Council [1953] St R Qd 178 …. 8.10 Hanson v Grassy Gully Gold Mining Co (1900) 21 NSWLR 271 …. 9.23, 9.24, 9.26, 9.27, 9.31, 13.7 Harper v Minister for Sea Coast Fisheries (1989) 168 CLR 314; 63 ALJR 687 …. 2.10, 9.30, 21.25 Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603 …. 13.21 Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 …. 15.49, 15.51, 15.52, 15.81, 15.82 Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479 …. 20.29 Hayes v Espie [1835] Tas SupC 8 …. 8.12 — v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 ….

13.7 Hazelwood Power Partnership v Latrobe City Council [2015] VSC 638 …. 8.51 Higgins v Gray (1980) 19 VPA 42 …. 8.25 Hill v O’Brien (1938) 61 CLR 96 …. 8.7, 8.11, 8.26, 11.2 Home Brewery Co Ltd v William Davies & Co (Leicester) Ltd [1987] 1 QB 339 …. 8.49 Hood v Corporation of Sydney (1860) 2 Legge 1294 …. 8.3, 8.23 Howard v Turner and Petersen [2015] NSWCA TAD 247 …. 10.10 Howell v Prince (1869) 8 SCR (NSW) 316 …. 8.32 Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 …. 12.17 Hunter Resources Ltd v Melville (1988) 164 CLR 234 …. 19.18, 19.21 Hunters Hill Council v Minister for Local Government [2016] NSWLEC 124 …. 15.42 Hutchins Pastoral Co Pty Ltd v The Minister Administering the Water Management Act 2000 [2014] NSWSC 46 …. 17.4, 17.24 Hutchinson v Waterman Slough Ditch Co 101 P 1059, 1062 (1909) …. 8.66

I ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 …. 2.26, 2.27, 3.18, 4.26, 5.61, 5.63, 5.64, 8.3, 8.34, 8.39, 9.19, 9.22, 9.27, 9.31, 10.3, 12.2, 12.18, 13.7, 16.104, 22.25, 26.3 Inglewood Pulp and Paper Co Ltd v New Brunswick Electric Power Commission [1928] AC 492 …. 22.24

J Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4 …. 8.26,

8.29, 8.40 John Young and Co v Bankier Distillery Co [1893] AC 691 …. 8.23, 8.32 Jones v Adams 6 P 442 (1885) …. 8.66 — v Kingborough Corporation (1950) 82 CLR 282 …. 8.8, 8.17, 8.18, 8.19, 8.20, 8.22, 9.24 — v Llanrwst UDC [1911] 1 Ch 393 …. 8.23, 8.32 Jordeson v Sutton, Southcoates and Drypool Gas Co [1899] 2 Ch 217 …. 8.35, 8.36 Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory [2011] FCA 766 …. 13.3

K Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51 …. 5.13 Kaurareg People v Queensland [2001] FCA 657 …. 13.3 Kennedy v Minister of Works (1970) WAR 102 …. 8.5, 8.13, 8.36, 8.62 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 …. 4.24 Kingborough Municipality v Bratt [1957] Tas SR 173; (1957) 7 LGRA 295 …. 8.27 Kinset v Great Eastern Railway Co (1884) 27 ChD 122 …. 8.7, 8.21, 8.30 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 …. 17.7 Kirwan and Department of Water [2011] WASAT 137 …. 16.103 Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 …. 1.43, 8.10, 8.11 Kroger v Southern Rural Water [2001] VCAT 1334 …. 4.43

L Lane Cove Council v Minister for Urban Affairs and Planning (2005) 140 LGERA 185; [2005] NSWCA 122 …. 15.54 Langbrook Properties Ltd v Surrey County Council [1970] 1 WLR 161 …. 8.35 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 7.3 Lardil Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland (2001) 108 FCR 453; 185 ALR 513; [2001] FCA 414 …. 13.21 Lardil Peoples v Queensland [2004] FCA 298 …. 24.8 Lawrence v Kempsey Shire Council (1995) 87 LGERA 49 …. 8.23 Lee v Commonwealth (2014) 220 FCR 300; [2014] FCA 432 …. 2.27, 5.24, 5.38, 5.41, 5.63, 5.66 — v — (2014) 229 FCR 431; [2014] FCAFC 174 …. 2.27, 2.28, 5.24, 5.38, 5.41, 5.63 — v — [2015] HCATrans 123 …. 2.27, 5.38, 5.41 Lee and Gropler v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174 …. 16.140, 26.10 Leichardt Municipal Council v Wells (1915) 3 LGR 25 …. 8.27 Leonard v Southern Rural Water [2007] VCAT 1562 …. 16.99, 20.28 Liggins v Inge (1831) 7 Bing 682; 131 ER 263 …. 8.4, 8.14 Lindner & Whetstone v Regional Council of Goyder [2005] SAERDC 115 …. 4.49 — v — (No 2) [2006] SAERDC 67 …. 15.3 Lomax v Jarvis (1885) 6 LR (NSW) 237; 2 WN 33 …. 8.19, 8.23, 8.25 Lord v Sydney City Commissioners (1859) 12 Moo PCC 473; 14 ER 991 …. 8.29, 8.40 Lovett on behalf of Gunditjmara People v Victoria [2007] FCA 474 …. 24.9

— v — (No 5) [2011] FCA 932 …. 13.3 Lyons v Winter (1899) 25 VLR 464 …. 8.3, 8.10, 8.11

M Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 7.3, 13.2 Macag Holdings Pty Ltd v Torrens Catchment Water Management Board (2000) 76 SASR 434; [2000] SASC 115 …. 1.43, 8.11 — v Torrens Catchment Water Management Board No Erd-991146, Erd-99-1147 [1999] SAERDC 97 …. 8.11 MacFarlane v Minister for Natural Resources, Environment & Heritage [2012] NTSC 98 …. 19.24 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 …. 2.22 Marsh v Serpentine-Jarrahdale (1966) 120 CLR 572 …. 21.25 Marshall v Cullen (No 2) (1914) 16 WAR 92 …. 8.3, 8.45, 11.1 Martin v Martin [2010] NSWSC 700 …. 25.29 Mason v Hill (1833) 110 ER 692 …. 2.9, 2.13, 8.15, 8.16, 8.30 Maugeri v Commissioner of Irrigation [1972] Qd R 411 …. 1.43 Mayor of Perth v Halle (1911) 13 CLR 393 …. 8.35 McCartney v Londonderry and Lough Swillie Railway Company [1904] AC 301 …. 8.7, 8.18, 8.21, 11.2 McCloy v New South Wales (2015) 89 ALJR 857 …. 5.13 McNamara v Minister for Works (1894) 15 NSWR 173 …. 8.45 McRae v Coulton (1986) 7 NSWLR 644 …. 19.18, 19.19, 19.28 Menzies v Earl of Breadalbane (1828) 3 Bli NS 414; 4 ER 1237 …. 8.25, 8.27 Metropolitan Water Board v Avery [1914] AC 118 …. 8.17, 8.18 Mettler v Ames Realty 201 P 702 (1921) …. 8.66 Michelmore v Minister for Environment and Conservation (2004)

137 LGERA 306 …. 20.9 Midland Railway Co of WA Ltd v Western Australia [1956] 3 All ER 272 …. 5.7 Miner v Gilmour (1859) 14 ER 861 …. 8.7, 8.17, 8.19, 8.21, 8.25 Mineralogy Pty Ltd v Department of Environment, Water and Catchment Protection, Office of the Information Commissioner (Western Australia) [2003] WAICmr 14 …. 15.11 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 …. 4.24 Minister for Environment and Conservation v Hedges (2007) 151 LGERA 447 …. 20.26 — v Simes (2007) 153 LGERA 225; [2007] SASC 248 …. 17.12, 17.24, 20.9 — v Wylie Group Pty Ltd (2005) 91 SASR 242 …. 20.26 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 …. 15.40 — v SZJSS (2010) 243 CLR 164 …. 4.24 Minister for Planning v Walker [2008] NSWCA 224 …. 4.7, 4.24 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 …. 16.136 Minister for Primary Industry and Energy v Davey; Minister for Primary Industry and Energy v Fitti (1993) 47 FCR 151 …. 22.25 Minister for Sustainability, Environment and Conservation v Zander (2014) 120 SASR 207 …. 17.12 Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 …. 6.38 Minister for the Environment and Conservation v Simes (2007) 153 LGERA 225 …. 14.42, 14.43 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 …. 4.34

Moll Pty Ltd v City of Mitcham & CCSA [2002] SAERDC 55 …. 4.49 Moore v Corrigan [1949] Tas SR 34 …. 8.3, 8.8, 8.17, 8.31, 8.32 More v Water and Rivers Commission [2006] WASAT 112 …. 4.15, 4.44, 14.11, 14.41, 20.4 Morgan v Commonwealth (1947) 74 CLR 421 …. 5.32, 5.33, 5.35, 5.37, 5.38 Moyer v Preston 44 P 845 (1896) …. 8.66 Muckle v Anderson [2002] NSWCA 283 …. 8.10 Munya Lake Pty Ltd v Chief Executive, Department of Natural Resources and Water [2010] QSC 58 …. 19.24, 20.11 Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2004] NSWLEC 122 …. 4.42, 4.46, 14.8 — v — (2005) 138 LGERA 11; [2005] NSWCA 10 …. 4.16, 4.46, 15.20, 15.37, 15.49, 15.52, 16.92, 19.62, 26.7 Murrumbidgee Horticulture Council Inc v Minister for Land and Water (NSW) (2003) 127 LGERA 450; [2003] NSW LEC 213 …. 4.39, 4.40, 14.18, 16.89, 17.5, 17.24, 25.33 MyEnvironment Inc v VicForests [2013] VSCA 356 …. 4.33

N N & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 …. 15.82 Nagle v Miller (1904) 29 VLR 765; 26 ALT 6; 10 ALR 119 …. 8.3, 8.19, 8.25 Nalder v Commissioner for Railways (1983) 1 Qd Rep 620 …. 8.25, 9.25, 9.27 Nangkiriny v Western Australia (2002) 117 FCR 6 …. 24.9

National Audubon Society v Superior Court (Mono Lake case) (1983) 33 Cal 3d 419; 189 Cal Rptr 346 …. 2.21 Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act (2005) 137 LGERA 320; [2005] NSWCA 9 …. 4.20, 4.39, 14.12, 15.65, 16.27, 16.30, 16.31, 16.39, 16.139 — v — [2005] HCA Trans 668 …. 16.29 Nelson v Walker (1910) 10 CLR 560 …. 8.49 Neowarra v Western Australia [2003] FCA 1402 …. 13.7 New River Co v Johnson (1860) 121 ER 164 …. 8.36 New South Wales v Bardolph (1934) 52 CLR 455 …. 5.55 — v Commonwealth (1975) 135 CLR 337 …. 1.33, 5.9 — v — (2006) 229 CLR 1 …. 5.42 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWCA 377 …. 6.5 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 …. 22.25 Newstead v Flannery (1887) 8 ALT 178 …. 8.3, 8.11, 8.32 Niebieski Zamek Pty Ltd v Southern Rural Water [2001] VCAT 1005 …. 20.19 — v — (No 2) [2003] VCAT 223 …. 20.19 Nield v London & NW Railway (1874) LR 10 Ex 4 …. 8.48 Noble v Department of Land and Water Conservation [1997] NSWCA 225 …. 19.18 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 …. 24.11, 24.12

O O’Brien v Hill [1938] SASR 61 …. 8.11, 8.26 Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171 …. 2.22

Ord Irrigation Cooperative Ltd and Department of Water [2017] WASAT 85 …. 16.103 Ormerod v Todmorden Joint Stock Mill Co Ltd (1883) 11 QBD 155 …. 8.17, 8.19, 8.30 O’Sullivan v Noarlunga (1954) 92 CLR 565 …. 5.25

P Pape v Commissioner of Taxation (2009) 238 CLR 1 …. 5.49, 5.51, 5.55 Paul v Goulburn Murray Water Corp [2010] VCAT 1755 …. 20.5 Payaneeandee v Minister for Immigation [2017] FCCA 861 …. 15.40 Phosphate Co-operative Company of Australia Ltd, The v Environment Protection Authority (1977) 138 CLR 134 …. 4.25 PJ Magennis v Commonweatlh (1949) 80 CLR 382 …. 5.61 Popplewell v Hodkinson (1869) LR 4 Ex 248 …. 8.35 Precision Service Centre v Banstead (1985) 2 BCL 248 …. 8.51 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 1 All ER 179 …. 8.23 Pring v Marina (1866) 5 SCR (NSW) 390 …. 8.25, 8.32 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 16.28, 16.31, 16.32, 16.39, 16.139, 17.5 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 …. 6.6

Q Queanbeyan City Council v ACTEW Corp (2011) 244 CLR 530 …. 5.12

R

R v Commissioners of Sewers for Pagham, Sussex (1828) 8 B & C 355; 108 ER 1075 …. 8.48 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 …. 19.22 — v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 …. 5.59 — v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 …. 20.31 — v Southern Canada Power Co Ltd (1937) 3 All ER 923 …. 8.28 — v Turnbull [2016] NSWSC 847 …. 23.14 Randwick Corporation v Rutledge (1959) 102 CLR 54 …. 13.9 Rapoff v Velios (1975) WAR 27 …. 8.25, 9.25, 9.27 Rawstrom v Taylor (1855) 11 Ex 369; 156 ER 873 …. 8.42, 8.43, 8.44, 8.45 Redfern v Dunlop Rubber Australian Ltd (1964) 110 CLR 194 …. 5.26 Reid v Chapman (1984) 37 SASR 117 …. 9.25, 9.27 Residential Tenancies Tribunal (NSW), Re; Ex parte Defence Housing Authority (1997) 190 CLR 410 …. 5.13 Richardson v Browning (1936) 31 Tas LR 78 …. 8.18, 8.19, 8.21, 8.30 Righetti v Wynn (1950) St R Qd 231 …. 8.49 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213 …. 4.48 Rosemount Estates Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 1 …. 4.34 Rozen v Macedon Ranges Shire Council [2010] VSC 583 …. 4.47, 4.49 Rrumburriya Borroloola Claim Group v Northern Territory [2006] FCA 776 …. 13.3, 13.7, 24.17 Rubibi Community v Western Australia [2001] FCA 607 …. 13.2

Rugby Joint Water Board v Watters [1967] Ch 397; [1966] 3 All ER 497 …. 8.19 Rural Funds Management Ltd v Minister Administering the Water Management Act 2000 [2016] NSWLEC 19 …. 19.22 Rural Municipality of Scott v Edwards [1934] SCR 332; (1934) 3 DLR 793 …. 8.45, 8.50 Rylands v Fletcher (1868) LR 3 HL 330 …. 8.23, 8.27, 8.37, 8.38, 8.46

S Salt Union Ltd v Brunner Mond and Co [1906] 2 KB 822 …. 8.35 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 …. 15.41 Schilling v Rominger 4 Colo 100 (1878) …. 24.26 Scott-Whitehead v National Coal Board (1987) 53 P & CR 263 …. 8.23 Seaton v Mosman Municipal Council (1996) 93 LGERA 1 …. 14.45 Secretary of State for India v Subbarayudu (1931) LR 59 IA 56 …. 8.19 SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1032 …. 12.17 Shooter v Commissioner of Irrigation and Water Supply (1972) 39 QCLLR 11 …. 9.23, 9.27, 14.6, 20.23 Smith v Kenrick (1849) 7 CB 515; 137 ER 205 …. 8.48 South Australian Potato Company and Temuka Farms v Minister for Sustainability, Environment and Conservation (No 2) [2014] SAERDC 50 …. 20.9 South Australian River Fishery Association & Warrick v South Australia (2003) 85 SASR 373; [2003] SASC 174 …. 22.25 Special Lease No 30455 (Amoco Australia) Brisbane District, Re (1976) 3 QLCR 171 …. 8.9

Special Lease No 30455 (Amoco Australia) Brisbane District, Re (1977) 4 QLCR 141 …. 8.9 Spencer v Commonwealth [2015] FCA 754 …. 5.61 Sporhase v Nebraska 458 US 941 (1982) …. 9.20 Springboard v McMerriman (1910) 4 QCLLR 161 …. 8.3, 8.26 Springhall v Kirner [1988] VR 159 …. 22.24 Stanley Rural Community Inc v Stanley Pastoral Pty Ltd [2016] VSC 764 …. 15.3 Stevens v Anglican Water Authority [1987] 1 WLR 1381 …. 8.35 — v M’Clung (1859) 2 Legge 1226 …. 8.25 Stevenson v Wenck [1996] 2 Qd R 84 …. 19.21 Stockport Waterworks Company v Potter (1864) 159 ER 545 …. 8.7, 8.21, 8.30, 11.2 Stollmeyer v Trinidad Lake Petroleum Co Ltd [1918] AC 485 …. 8.10, 8.11, 8.19, 8.23, 8.32 Stowell v Johnson 26 P 280 (1891) …. 8.66 Street v Queensland Bar Association (1989) 168 CLR 461 …. 5.12 Sury v Piggot (1682) Popham 166; 79 ER 1263 …. 8.4 Swan Fisheries Ltd v Holberton (December 1987, unreported, QBD) …. 8.23 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 …. 4.26 Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) 108 CLR 189 …. 5.26 Swindon Waterworks Co v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697 …. 8.17, 8.18, 8.19

T Tate & Lyle Industries v Greater London Council [1983] 2 AC 509 …. 8.17 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 …. 4.7, 4.10, 4.42, 4.47

Thomas v Mowbray (2007) 237 ALR 194 …. 5.47 Thorpes Ltd v Grant Pastoral Co Pty [1954] 92 CLR 317 …. 8.28 — v — (1955) 92 CLR 317 …. 9.24, 9.25, 9.27, 13.7 Tickner v Bropho (1993) 40 FCR 183 …. 4.3 Tipping v Eckersley (1855) 2 K & J 264; 69 ER 799 …. 8.23 Toomer v Witsell 334 US 385 (1948) …. 9.19 Traian v Ware (1957) VR 200 …. 8.49 Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61 …. 8.23, 8.38 Travis v Vanderloos (1984) 54 LGRA 268 …. 8.25, 8.27 Trinidad Asphalt Co v Ambard [1899] AC 594 …. 8.35 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 …. 16.93

U Ulan Coal Mines Ltd v Minister for Mineral Resources [2007] NSWSC 1299 …. 19.18 — v Minister for Planning [2008] NSWLEC 185 …. 4.48 Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning (NSW) [2016] NSWLEC 6 …. 2.22 Upper Namoi Water Users Association Inc v Minister for Natural Resources [2003] NSWLEC 175 …. 15.48 Upper Ottawa Improvement Co v Hydroelectric Power Commission of Ontario (1961) 28 DLR (2d) 276 …. 9.29

V Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 …. 8.23, 9.26 Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 …. 5.48

— v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 146 …. 5.45 Vinnicombe v MacGregor (1902) 28 VLR 144 …. 8.10, 8.49

W Wade v New South Wales Rutile (1969) 121 CLR 177 …. 9.22 Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 …. 9.19 Wandarang v Northern Territory [2000] FCA 923 …. 13.10 Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 …. 13.2, 13.10, 13.11 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 …. 4.24, 4.26 Water Administration Ministerial Corp v Jones [2005] NSWCA 181 …. 19.19 — v Punterioro (1997) 42 NSWLR 676 …. 6.6 Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 …. 4.12, 4.26, 19.22, 20.2, 24.38 — v New South Wales Pastoral Co Ltd (1945) 24 NSWLVR 54 …. 14.5 Water Resources Commission of New South Wales v The State of South Australia (unreported, Land and Environment Court, 9 October 1981) …. 14.8 Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279 …. 4.44 Western Australia v Commonwealth (1995) 183 CLR 373 …. 5.66, 7.3 — v Marquet (2003) 217 CLR 545; [2003] HCA 67 …. 5.18, 5.20 — v Ward (2000) 170 ALR 159 …. 13.7, 13.11 — v — (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28 …. 13.2, 13.7, 13.9, 13.10, 13.11, 13.15, 13.16 Western Australian Planning Commission, Re; Ex parte South

Fremantle/Hamilton Hill Residents’ Association Inc [2005] WASC 50 …. 15.53 Western Water v Rozen (2008) 24 VR 215 …. 4.49 White v Taylor (1874) 8 SALR 1 …. 8.31 Wik Peoples v Queensland (1996) 187 CLR 1 …. 5.5, 5.6, 25.11 — v — [2000] FCA 1443 …. 13.3 Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 …. 6.5 Williams v Attorney-General (NSW) (1913) 16 CLR 404 …. 13.9 — v Cahill (11 March 1964, WA Supreme Court) …. 8.18 — v Commonwealth (No 1) (2012) 248 CLR 156 …. 5.55, 5.56, 5.57, 5.58, 5.59, 5.69 — v — (No 2) (2014) 252 CLR 416 …. 5.56, 5.58, 5.59, 5.69 Willis on behalf of the Pilki People v Western Australia [2014] FCA 714 …. 13.3 Wood v Waud (1849) 3 Exch 748; 154 ER 1047 …. 8.31 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 …. 20.8 Wyman on behalf of the Bidjara People v Queensland [2015] FCAFC 108 …. 13.2

X Xstrata Coal Queensland Pty Ltd v Friends of the Earth [2012] QLC 013 …. 12.17 Xuereb v Viola CH 217 [1990] Aust Torts Reports 67,667 …. 8.35

Y Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 …. 9.18, 9.19, 24.8, 24.11 Yarmirr v Northern Territory (1998) 82 FCR 533; 156 ALR 370 …. 13.3

Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538; [2002] HCA 58 …. 13.2

Z Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170 …. 4.1 Zouki v Water Administration Ministerial Corporation (2001) 118 LGERA 229 …. 1.43

TABLE OF STATUTES References are to paragraph numbers

Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 4.3 s 10 …. 4.3 Acts Interpretation Act 1901 …. 4.1 s 15AA …. 4.1 s 15AB(1)(b)(i) …. 4.30 s 46B(1) …. 15.88 Administrative Decisions (Judicial Review) Act 1977 …. 16.136 s 3(1) …. 16.136 Appropriation Act (No 1) 2008–2009 …. 5.55 s 81 …. 5.54 Australia Acts 1986 s 6 …. 5.18 Australian Capital Territory (Self-Government) Act 1988 s 22(1) …. 5.67 Australian Court Act 1828 …. 24.21 Australian Securities and Investments Commission Act 2001 …. 5.71 Basin Plan 2012 Ch 7, Pt 2, Div 1 …. 15.108

Ch 7, Pt 2, Div 2 …. 15.108 Ch 7, Pt 2, Div 3 …. 15.108 Ch 7, Pt 2, Div 4 …. 15.108 Ch 7, Pt 3 …. 15.108, 16.133 Ch 7, Pt 4 …. 15.108, 16.133 Ch 8, Pt 2 …. 25.146 Ch 8, Pt 4, Div 2 …. 25.146 Ch 8, Pt 4, Div 4 …. 25.146 Ch 8, Pt 4, Div 5 …. 25.146 Ch 8, Pt 4, Div 6 …. 25.146 Ch 15, Pt 2, Div 1, Subdiv A …. 25.144 Ch 12, Pt 2, Div 1, Subdiv B …. 25.144 Ch 12, Pt 2, Div 1, Subdiv C …. 25.144 Ch 12, Pt 2, Div 2 …. 25.144 Ch 12, Pt 3 …. 25.144 Ch 12, Pt 4 …. 25.144 Ch 12, Pt 5 …. 25.144 Ch 12, Pt 5, Div 4 …. 25.144 Canberra Water Supply (Googong Dam) Act 1974 …. 6.3, 7.38 Coastal Waters (State Powers) 1980 …. 5.9 Coastal Waters (State Titles) Act 1980 …. 5.9 Commonwealth Constitution …. 5.3, 5.6, 5.11, 5.13, 5.18, 5.21, 5.36, 5.67, 5.73 Ch III …. 5.13 s 51 …. 5.23, 5.24, 5.54, 5.55, 5.73, 5.75, 5.78 s 51(i) …. 3.1, 5.23, 5.24, 5.25, 5.28, 5.29, 5.30, 5.31, 5.32, 5.33, 5.34, 5.35, 5.36, 5.38, 5.39, 5.41, 5.73, 5.78, 16.140 s 51(ii) …. 5.12, 5.23, 5.52 s 51(v) …. 5.23, 5.73, 5.74, 5.78

s 51(vi) …. 5.23, 5.47 s 51(viii) …. 5.23, 5.73, 5.77, 5.78 s 51(x) …. 5.21 s 51(xi) …. 5.23, 5.73, 5.77, 5.78 s 51(xv) …. 5.23, 5.73, 5.74, 5.77, 5.78 s 51(xx) …. 5.21, 5.23, 5.32, 5.35, 5.42, 5.73, 5.78 s 51(xxix) …. 5.23, 5.24, 5.43, 5.72, 5.73, 5.74, 5.78, 16.140 s 51(xxxi) …. 5.22, 5.60, 5.61, 5.64, 9.19, 12.2, 22.24, 22.35 s 51(xxxvi) …. 5.61 s 51(xxxvii) …. 5.23, 5.24, 5.41, 5.71, 5.72, 5.73, 5.75 s 51(xxxviii) …. 5.9 s 51(xxxix) …. 5.48, 5.73 s 52 …. 5.54, 5.55 s 52(ii) …. 5.65 s 61 …. 5.48, 5.74 s 75(iv) …. 5.31 s 77(iii) …. 5.13 s 81 …. 5.53, 5.54 s 83 …. 5.23 s 90 …. 5.12, 5.67 s 92 …. 5.12 s 96 …. 5.23, 5.53, 5.57, 5.59, 5.61 s 98 …. 3.1, 5.31, 5.34, 5.35, 5.36, 5.39, 5.41 ss 98–102 …. 5.33, 5.34 s 99 …. 5.32, 5.33, 5.34, 5.52, 16.140 s 100 …. 2.27, 3.1, 5.31, 5.32, 5.35, 5.36, 5.37, 5.38, 5.39, 5.40, 5.41, 5.68, 16.140, 26.10 s 101 …. 5.32 s 102 …. 5.32, 5.34

s 106 …. 5.6 s 109 …. 5.12, 13.12 s 117 …. 5.12 s 118 …. 5.67 s 122 …. 5.21, 5.54, 5.55, 5.73, 5.78 s 128 …. 5.17 Commonwealth Places (Application of Laws) Act 1970 …. 5.65 Competition and Consumer Act 2010 Pt IIIA …. 6.40 Corporations Act 2001 …. 5.71 Environment Protection and Biodiversity Conservation Act 1999 …. 3.2, 4.11, 12.17 Ch 2, Pt 3 …. 5.46 s 3A(a) …. 4.11 s 24D …. 5.42 s 24E …. 5.42 Environment Protection and Biodiversity Conservation Amendment Act 2013 …. 3.2, 3.22, 5.24, 5.46, 12.17 Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 …. 3.22, 12.17 Environmental Protection (Impact of Proposals) Act 1974 …. 3.2 Explanatory Statement, Water Charge (Planning and Management Information) Rules 2010 …. 21.31 Federal Court Act 1976 s 21 …. 16.136 Financial Framework (Supplementary Powers) Act 1997 …. 5.56 s 32B …. 5.56 Financial Management and Accountability Act 1997

s 32B …. 5.56 Sch 1AA …. 5.56, 5.57 Financial Management and Accountability Regulations 1997 …. 5.56 Fisheries Management Act 1991 …. 4.32 s 3(1) …. 4.29, 4.32 s 3(1)(b) …. 4.10 s 3(2) …. 4.29 Judiciary Act 1903 s 39B …. 16.136 Lake Eyre Basin Intergovernmental Agreement Act 2001 …. 7.35 Legislation Act 2003 Ch 3, Pt 2 …. 17.20 s 42 …. 17.20 s 92(2) …. 21.31 Legislative Instruments Act 2003 …. 15.91, 15.100 s 7 …. 15.88 Murray-Darling Basin Act 1992 …. 14.15 Murray-Darling Basin Act 1993 …. 3.4, 7.5, 7.6, 15.88 s 4 …. 15.96 s 17 …. 15.88 s 41 …. 15.93 s 43 …. 15.98 s 44(1) …. 15.93 s 44(3) …. 15.93 s 54(2)–(3) …. 15.93 Sch 1 …. 3.4 Sch 1A …. 15.96 Murray-Darling Basin Amendment Act 2003 …. 7.30

National Environment Protection Council Act 1994 …. 4.42 National Water Commission (Abolition) Act 2015 …. 3.11, 6.32 National Water Commission Act 2004 …. 3.2, 3.11, 3.18, 5.37, 6.32 s 7 …. 3.17 s 7(2) …. 3.11 s 7(2)(h) …. 3.11 s 7(3) …. 3.17 ss 40–42 …. 3.18 s 44 …. 3.18 Native Title Act 1993 …. 13.1, 13.4, 13.6, 13.8, 13.12, 13.19, 13.21, 13.29, 13.31, 13.34, 16.60, 16.132, 24.8 Pt 2, Div 3, Subdiv H …. 13.19 s 15 …. 13.15 s 15(1)(b) …. 13.15 s 17 …. 13.17 s 17(1) …. 13.15 s 17(2) …. 13.17 s 19 …. 13.15 s 20 …. 13.15 s 22B(a) …. 13.15 s 22G …. 13.17 ss 23A–23JA …. 13.16 s 23C(2) …. 13.16 s 23C(2)(b) …. 13.16 s 23C(3) …. 13.16 s 24BA–24EC …. 13.28 s 24BB …. 13.28 s 24BB(e) …. 24.8

s 24CB …. 13.28 s 24DB …. 13.28 s 24HA …. 13.8, 13.19 s 24HA(1) …. 13.20 s 24HA(2) …. 13.21 s 24HA(3) …. 13.20, 13.21 s 24HA(5) …. 13.20, 13.21 s 24HA(7) …. 13.21 s 24JA …. 13.15, 13.23 s 24JA(1) …. 13.23 s 24JB(2) …. 13.23 s 24JB(4) …. 13.23 s 24KA …. 13.15, 13.24, 13.25 s 24KA(1) …. 13.24 s 24KA(2) …. 13.24 s 24KA(4) …. 13.24 s 24KA(5) …. 13.25 s 24KA(7A) …. 13.25 s 24MD …. 13.15, 13.26 s 24MD(2)(ba) …. 13.26 s 24OA …. 13.21 s 26(1) …. 13.26 s 44H …. 13.8 s 44H(d) …. 13.8 s 45 …. 13.17 s 211 …. 13.27 s 212(1) …. 13.18 s 212(1)(b) …. 13.18 s 212(3) …. 13.18

s 223 …. 13.2 s 223(1) …. 13.2 s 223(1)(a) …. 13.2 s 223(1)(b) …. 13.2 s 226(2)(e) …. 13.15 s 226(2)(f) …. 13.15 s 228(2) …. 13.15 s 228(9) …. 13.15 s 229(4) …. 13.15 s 229(4)(c) …. 13.15 s 232 …. 13.14 s 232B …. 13.14 s 232B(7) …. 13.15 s 232E …. 13.14 s 251D …. 13.15, 13.16, 13.23 s 253 …. 13.15, 13.26 Natural Resources Management (Financial Assistance) Act 1992 …. 5.53 s 5 …. 5.53 s 6 …. 5.57 Northern Territory (Self-Government) Act 1978 s 6 …. 5.67 s 50 …. 22.35 Productivity Commission Act 1998 …. 3.11, 6.32 Public Service Act 1999 …. 6.34 Racial Discrimination Act 1975 …. 13.6, 13.15, 13.18, 13.19 s 10 …. 13.12 River Murray Waters Amendment Act 1987 …. 5.40 Seas and Submerged Lands Act 1973 …. 5.9

Seat of Government Acceptance Act 1909 …. 7.38 Snowy Hydro Corporatisation Act 1997 …. 7.27 s 5 …. 7.27 s 8 …. 7.27 s 59 …. 7.27 s 61 …. 7.27 Snowy Mountains Hydro-electric Power Act 1949 …. 3.6, 7.26, 7.27 Preamble …. 5.47 Trade Practices Act 1974 Pt IIA …. 6.31 Water Act 2007 …. 1.10, 1.41, 1.44, 2.27, 3.2, 3.19, 3.20, 3.21, 3.22, 5.2, 5.3, 5.24, 5.38, 5.41, 5.42, 5.46, 5.51, 5.57, 5.63, 5.66, 5.71, 5.72, 5.79, 6.36, 6.41, 7.15, 7.16, 7.18, 7.24, 7.30, 7.38, 13.32, 14.15, 14.30, 14.31, 14.32, 14.33, 14.34, 14.48, 15.1, 15.12, 15.92, 15.104, 15.106, 15.108, 16.2, 16.85, 16.94, 16.104, 16.117, 16.118, 16.121, 16.122, 16.124, 16.125, 16.126, 16.130, 16.133, 16.134, 16.140, 16.141, 16.142, 16.143, 17.21, 17.22, 17.23, 21.30, 22.27, 25.7, 25.129, 25.134, 25.135, 25.140, 25.145, 25.149, 26.8, 26.9, 26.10 Pt 1 …. 16.143 Pt 1A …. 5.73 Pt 2 …. 5.24, 15.106, 17.21 Pt 2, Div 1 …. 15.92, 15.95 Pt 2, Div 1, Subdiv F …. 15.105 Pt 2, Div 1, Subdiv G …. 15.105 Pt 2, Div 2 …. 5.74 Pt 2, Div 4 …. 16.116, 16.143 Pt 2A …. 5.73, 7.17, 7.24, 16.127, 17.21 Pt 2AA …. 14.34, 16.135, 26.11

Pt 3 …. 3.11, 15.104 Pt 4 …. 5.24, 5.73, 5.75 Pt 4, Div 1 …. 5.75 Pt 4, Div 2 …. 5.75 Pt 4A …. 5.73 Pt 5 …. 17.25, 25.18 Pt 7 …. 5.42, 5.51, 5.72, 5.76, 5.77, 15.12 Pt 8 …. 16.139, 17.3 Pt 9 …. 7.19 Pt 9, Div 4 …. 7.19 Pt 10 …. 5.42, 5.78 Pt 10A …. 5.73 Pt 11 …. 15.108, 16.112 Pt 11A …. 5.73 s 3 …. 4.3, 4.5 s 3(a)–(g) …. 5.72 s 3(b) …. 4.9 s 3(c) …. 4.9 s 3(d) …. 4.9 s 3(d)(i) …. 16.139, 16.140 s 3(e) …. 4.14 s 3(h) …. 5.72 s 4 …. 1.41, 4.9, 5.46, 5.72, 14.32, 14.33, 15.97, 16.134, 25.145 s 4(1) …. 16.126, 16.132, 16.134, 16.140, 16.141, 18.30 s 4(2) …. 4.9, 16.126 s 6(3)(a) …. 16.88 s 6(6) …. 16.88 s 9 …. 5.23, 5.24, 5.74

s 9(a) …. 5.73 s 9(b) …. 5.51, 5.73 s 9A …. 5.24, 5.42, 5.72, 5.73 s 9A(2) …. 5.75 s 9A(4) …. 7.16 s 10 …. 5.24 s 13 …. 16.132 s 18A …. 7.16, 8.23 s 18B …. 25.135 s 18B(9) …. 5.73 s 18C …. 7.17, 7.22, 15.91 s 18D …. 7.22 s 18E …. 7.19, 7.24, 15.87 s 18E(2) …. 7.25 s 18F …. 7.21 s 19 …. 14.31, 16.126 s 20 …. 4.2, 4.5, 4.9, 16.126 s 20(b) …. 4.9, 16.139 s 20(d) …. 16.133 s 21 …. 4.2 s 21(1)–(2) …. 16.126 s 21(4) …. 16.126 s 21(4)(a) …. 4.9 s 21(4)(b) …. 16.134 s 21(4)(c)(v) …. 13.32, 16.132 s 21(5) …. 16.131 s 21(6) …. 7.30 s 22 …. 13.32, 15.108, 16.128, 16.133 s 22(1) …. 14.32, 14.33, 15.97, 15.101, 15.103, 16.126, 16.128,

16.142, 25.135, 25.143 s 22(3) …. 14.32, 15.103, 16.129, 16.141 s 22(3)(c) …. 16.141 s 22(3)(ca) …. 16.132 s 22(3)(d) …. 16.132, 16.142 s 22(3)(e) …. 16.131 s 22(3)(h) …. 16.142 s 22(4) …. 16.141 s 22(5) …. 16.132 s 22(6A) …. 15.108, 16.133 s 22(6B) …. 15.108, 16.133 s 22(7) …. 16.132, 16.142 s 22(9)–(12) …. 16.129 s 22(10) …. 16.142 ss 22–24 …. 4.9 s 23 …. 14.33, 15.108, 16.126, 16.133, 16.134 s 23(1) …. 4.9, 16.133, 16.136, 16.140, 26.9 s 23(2) …. 15.108, 16.133 s 23(4) …. 16.134 s 23A …. 14.33, 14.34, 15.108, 16.133, 16.134, 16.135 s 23A(3)(b) …. 14.33, 16.133, 16.134, 16.136 s 23A(4) …. 16.133 s 23B …. 14.33, 14.34, 15.108, 16.133, 16.134 s 24 …. 14.33, 16.133 s 24(1) …. 16.133 s 24(5)–(7) …. 14.33 s 25(1) …. 15.101 s 25(2) …. 15.101 s 26 …. 25.135

s 26(5) …. 25.135 s 28 …. 1.11 s 28(1) …. 16.131 s 28(2) …. 15.101, 16.137 s 28(2)–(3) …. 16.131 s 28(3) …. 15.101 s 28(4) …. 16.131 s 30 …. 16.131 s 32 …. 15.102 s 33 …. 15.100, 25.135 s 33(1) …. 15.87, 17.20 s 33(2) …. 17.20 s 34(1) …. 17.21 s 35 …. 5.42, 5.74, 16.139, 17.21, 25.135 s 35(1) …. 5.74 s 35(1A) …. 17.21 s 36 …. 5.46, 5.74, 17.21, 25.135 s 36(1) …. 5.74 s 36(2) …. 5.42, 5.74 s 36(3) …. 5.74 s 36(4) …. 5.74 s 37 …. 5.74, 17.21 s 37(2) …. 5.42 s 37(5) …. 5.74 s 38 …. 17.21 s 40 …. 16.117, 17.22 s 41–42 …. 15.98 s 42 …. 25.135

s 42(2) …. 25.135 s 43A …. 15.98 s 44 …. 2.27, 5.58, 15.38, 15.100, 17.20 s 44(5) …. 15.100 ss 45–48 …. 16.133 s 47A …. 15.98 s 49 …. 15.107, 16.133 s 49A …. 15.105 s 51 …. 7.16 s 52A …. 15.103 s 53 …. 14.32 s 57 …. 15.100 s 59 …. 5.42, 5.74 s 60 …. 5.74 s 60(2) …. 5.42 s 61(2) …. 5.42 s 63 …. 14.32, 15.93, 15.98 s 63(5)–(8) …. 15.100 s 63(6) …. 15.100 s 63(7) …. 15.100 s 63(8) …. 15.100 s 63(9) …. 15.92 s 64 …. 15.106 s 65 …. 15.107 s 65(1) …. 15.107 s 66 …. 15.107 s 68 …. 15.93, 15.94 s 68(6) …. 15.99 s 68(7) …. 15.99

ss 68–69 …. 14.32, 15.99 s 69 …. 15.94, 15.100 s 70 …. 15.106 s 71 …. 15.103, 16.121 s 72 …. 15.94 s 73(14) …. 15.94 s 73(15)–(17) …. 15.94 s 74A …. 22.27 s 75 …. 16.140, 16.143, 22.27, 26.11 s 77(1) …. 16.143 s 83(1) …. 16.143 ss 85B–85D …. 25.142 s 85C(4)(c) …. 25.142 s 86A …. 7.17 s 86A(1) …. 16.127 s 86A(1)(b) …. 16.127 s 86A(2) …. 16.127 s 86A(4) …. 16.127 s 86AA(1)–(2) …. 16.135 s 86AA(3) …. 16.135 s 86AD(4) …. 16.135 s 86G …. 17.21 s 86H …. 17.21, 25.135 ss 87–89 …. 3.11 s 88 …. 15.104 s 88(3B). …. 3.12 s 91 …. 21.30 s 92 …. 5.75

s 92(1) …. 5.75, 21.30 s 92(1)(c) …. 21.31 s 92(2) …. 25.135 s 92(3) …. 5.42, 21.31 s 92(8) …. 25.135 s 92(10) …. 25.13 s 93 …. 21.31 ss 93–94 …. 6.35 s 94 …. 5.75 s 94(2)(b) …. 5.42 s 97 …. 5.75 s 97(1) …. 5.75 s 97(1)(a) …. 25.139 s 97(2) …. 25.135 s 97(3) …. 5.42 s 97(3)(b) …. 25.139 s 97(7)–(9) …. 25.135 s 99 …. 5.75 s 99(2)(a) …. 5.42 s 100 …. 16.140 s 100A …. 6.35 s 100B …. 25.135 s 100C …. 25.135 s 100D …. 6.35 s 105(4) …. 16.131 s 105(4)(a) …. 25.145 s 106 …. 25.145 s 107 …. 6.34 s 108 …. 25.145

s 108(3)(d) …. 25.145 s 110 …. 6.34 ss 111–113 …. 25.145 s 114 …. 6.34 s 119 …. 5.72, 5.76 s 119(1) …. 5.77 s 119(2) …. 5.77 s 119(3) …. 5.51, 5.77 s 122 …. 7.16 s 125 …. 15.12 s 126 …. 5.76 ss 126–127 …. 15.13 s 127 …. 5.76 s 129 …. 15.13 ss 136–137 …. 7.24 s 146 …. 25.135 s 171 …. 7.19 s 172(1(b) …. 15.102 s 172(1(c) …. 15.102 s 172(1)(g) …. 15.102 s 172(1)(h) …. 15.102 s 172(1)(i) …. 15.102 s 172(1)(ia) …. 16.132 s 172(2) …. 15.102 s 172(3) …. 15.102 s 175(2)(e) …. 7.19 ss 176–178 …. 7.19 s 178(2) …. 7.19

s 178(3)(h) …. 16.132 s 178(4) …. 7.19 s 189 …. 7.19 ss 193–194 …. 7.19 s 201 …. 7.18, 15.98 s 202 …. 7.21, 15.98 s 202(3) …. 13.32 s 202(5) …. 13.32 s 202(6) …. 7.21 s 204 …. 13.32 s 204(2) …. 7.21 s 205(1A) …. 7.21 s 202(5)(c) …. 16.132 s 216 …. 5.76 s 216(1) …. 5.78 s 239C …. 25.145 s 239E …. 25.145 s 239Q …. 16.118 s 246 …. 15.95 s 250B …. 15.95, 17.22 ss 250C–250E …. 17.22 s 254 …. 5.63, 16.140 Sch 1 …. 7.16, 7.17, 14.15, 14.27, 16.88, 25.56, 25.130 Sch 1, cl 2 …. 7.18 Sch 1, cl 5 …. 7.17, 7.22 Sch 1, cl 6 …. 7.24 Sch 1, cl 16 …. 7.21 Sch 1, cl 17 …. 7.18 Sch 1, cl 18 …. 7.18

Sch 1, cl 19 …. 7.18 Sch 1, cl 20 …. 7.18 Sch 1, cl 22 …. 7.18 Sch 1, cl 25 …. 7.18 Sch 1, cl 26 …. 7.18 Sch 1, cl 26(3) …. 7.18 Sch 1, cl 27 …. 7.18 Sch 1, cl 29(1) …. 7.20 Sch 1, cl 29(2) …. 7.20 Sch 1, cl 30 …. 7.20 Sch 1, cl 34 …. 7.19, 7.20 Sch 1, cl 53 …. 7.20 Sch 1, cl 54 …. 7.20 Sch 1, cl 55 …. 7.20 Sch 1, cl 56 …. 7.20 Sch 1, cl 56(6) …. 7.22 Sch 1, cl 72 …. 7.20 Sch 1, cl 86 …. 7.23 Sch 2 …. 21.31, 25.135 Sch 2, Pt 2 …. 21.30 Sch 3 …. 25.135, 25.139 Sch 3, cl 1 …. 25.131 Sch 3, cl 4(16) …. 25.139 Sch 3A …. 16.143 Sch 4 …. 15.95 Sch 8 …. 16.134 Sch 9 …. 16.134 Water Amendment Act 2007 …. 16.118

Water Amendment Act 2008 …. 3.20, 5.23, 7.16, 15.88 s 2 …. 7.16 s 74A …. 6.32 Water Amendment Act 2015 …. 15.92, 25.15 s 2 …. 25.15 Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Act 2012 …. 14.33, 14.34, 15.108, 16.128, 16.133 Water Amendment (Review Implementation and Other Measures) Act 2016 …. 16.128 ss 30–32 …. 25.18 Sch 1, cl 1 …. 15.101 Water Amendment (Water for the Environment Special Account) Act 2013 …. 14.34, 15.108 Water Charge (Infrastructure) Rules 2010 …. 21.31, 25.137 Water Charge (Planning and Management Information) Rules 2010 …. 21.31, 25.137 r 5(2) …. 21.31 r 5(3)–(5) …. 21.31 Water Charge (Termination Fees) Rules 2009 …. 21.31, 25.137 Water Legislation Amendment (Sustainable Diversion Limit Adjustment) Act 2016 …. 14.34, 15.92, 16.135 Sch 1 …. 15.108 Water Management Legislation Amendment Act 2013 …. 7.38 Water Market Rules 2009 …. 25.141 r 17 …. 25.141 r 20 …. 25.141 Water Regulations 2008 reg 2.01 …. 16.129 reg 2.02 …. 16.129

reg 2.03 …. 16.133 Water Resources Act 2007 …. 6.33, 6.34, 6.35 Pt 3 …. 6.31, 6.32 Pt 6 …. 6.34 ss 12–15 …. 6.3 s 17 …. 6.3 ss 24–25 …. 6.3 s 26 …. 6.3 ss 29–30 …. 6.3 ss 87–89 …. 6.31 Western Australia Agreement (Ord River Irrigation) Act 1968 …. 7.34 World Heritage Properties Conservation Act 1983 …. 5.50 s 7 …. 5.35 s 10 …. 5.35

Australian Capital Territory Competition and Consumer Act 2010 Pt IIIA …. 6.22 Emergencies Act 2004 …. 11.13 Environment Protection Act 1997 s 11 …. 6.3 Independent Competition and Regulatory Commission Act 1997 …. 6.30 Pts 4–6 …. 6.30 s 20 …. 6.30 Legislation Act 2001 s 12 …. 15.60 s 46(1) …. 15.87

s 61 …. 15.60 s 139 …. 4.1 s 163 …. 6.3 Murray-Darling Basin Agreement Act 2007 …. 7.5, 7.6 Planning and Development Act 2007 …. 15.6 Territory-owned Corporations Act 1990 s 6 …. 6.30 Sch 1 …. 6.30 Utilities Act 2000 …. 6.30 ss 11–14 …. 6.30 s 21 …. 6.30 s 89 …. 6.30 Water and Sewerage Act 2000 …. 6.30 Water Resources Act 1998 …. 3.9, 9.11, 9.14, 14.14, 15.22, 16.18, 17.18, 25.118 Pt 5 …. 14.14 ss 5–10 …. 14.14 s 12(1) …. 10.8 s 13 …. 9.11, 9.14 s 20 …. 15.22 s 23 …. 15.22 s 24 …. 15.22 Water Resources Act 2007 …. 1.39, 6.12, 6.20, 10.8, 14.14, 15.2, 15.6, 15.10, 15.22, 15.32, 15.72, 16.18, 16.71, 16.78, 16.102, 16.115, 17.18, 18.13, 18.31, 19.9, 20.14, 20.18, 20.21, 20.32, 21.20, 22.17, 22.34, 25.2, 25.117 Pt 3 …. 15.2, 16.18, 17.18 Pt 5, Div 5.3 …. 18.13 Pt 5, Div 5.4 …. 18.13

Pt 7A …. 15.10 Pt 8 …. 15.2, 15.10 s 3 …. 1.39, 15.32 s 6 …. 4.3, 4.5, 20.3 s 6(a) …. 4.6 s 6(b) …. 16.102 s 7 …. 9.17 s 8 …. 1.39, 15.32, 22.17 s 9 …. 1.39, 15.32 s 10 …. 1.39 s 12 …. 15.32, 15.56 s 12(2) …. 15.56, 15.60 ss 13–15 …. 15.22, 15.38 s 15 …. 15.56, 15.60 s 15(1) …. 15.59 s 16 …. 16.18 ss 16–17 …. 15.2, 16.71 s 17 …. 14.14, 17.18, 16.18, 18.13, 22.18, 25.118 s 17(3) …. 25.118 s 17(4) …. 16.102 s 18 …. 14.14, 16.18, 16.102, 17.18, 18.13, 25.118 s 19 …. 16.78, 18.13, 25.117, 25.118 s 19(2) …. 21.4, 25.117 s 20 …. 19.17 s 20(2) …. 19.15 s 21 …. 19.23, 20.3 s 21(2) …. 17.18, 18.13, 20.12, 20.32 s 21(2)(a) …. 20.12 s 21(2)(a)(i) …. 20.6

s 22(b) …. 21.4 s 21(2)(c) …. 15.6 s 21(4) …. 20.18 s 23 …. 18.13 s 23(1) …. 25.117 s 23(2) …. 25.117 s 24 …. 16.78, 16.102, 22.18 s 26 …. 18.13, 19.15 s 26(1) …. 25.120, 25.121 s 26(2) …. 25.120 s 26(2)(a) …. 25.116 s 26(2)(a)(i) …. 25.121 s 26(2)(a)(ii) …. 25.121 s 26(2)(b) …. 25.121 s 26(3) …. 25.120 s 26(4) …. 25.120 s 26(5) …. 25.120 s 26(6) …. 25.120 s 27 …. 21.5 s 28 …. 10.11, 25.117 s 28(1) …. 11.3, 11.11, 18.13, 19.9 s 28(2) …. 18.13, 19.9 s 28(2)(a) …. 11.5 s 28(2)(a)–(c) …. 19. s 28(2)(c) …. 11.3, 11.8, 11.13 s 28(2)(d) …. 11.13 s 28(2)(d)–(e) …. 19.9 s 29 …. 19.17, 25.117

ss 29–30 …. 19.15 s 30 …. 19.23, 20.3 s 30(1)–(2) …. 25.117 s 30(2) …. 18.13, 21.5 s 30(2)(a) …. 19.9, 19.15, 20.12 s 30(2)(c) …. 19.15 s 30(2)(f) …. 19.15 s 30(3) …. 20.14 s 31(1) …. 18.13, 21.12, 21.20 s 32 …. 18.13, 25.117 s 33 …. 18.10 s 47 …. 18.31 ss 47–51 …. 1.39 s 49 …. 18.31 s 52 …. 18.13, 21.5 s 53 …. 21.5 s 54 …. 18.13, 25.119 s 55 …. 18.13, 22.18 s 61(c) …. 22.18 s 61(d) …. 22.22 s 64 …. 6.12 s 64(1)(a) …. 15.10, 15.72 s 64(1)(d) …. 15.72 s 64(f) …. 15.72 s 66(1) …. 25.122 s 66(2) …. 25.122 s 66(3) …. 25.122 s 66(4) …. 15.10 s 66(4)(b) …. 25.122

s 67 …. 25.122 s 68 …. 15.72 s 71 …. 22.17 s 77A …. 11.3, 11.11 s 77G …. 21.20 s 77J …. 21.20 ss 94–96 …. 19.23 s 99 …. 16.102, 22.34 s 107 …. 21.28, 25.120 s 110 …. 25.122 s 111 …. 16.102 Sch 1, item 3 …. 19.23 Sch 1, item 4 …. 19.23 Dictionary …. 1.39, 15.32 Water Resources Amendment Act 2010 s 5 …. 25.116 Water Resources (Catchment Management Coordination Group) Amendment Act 2015 …. 15.11 Water Resources Regulation 2007 …. 21.20 reg 5 …. 25.117 reg 7 …. 19.15 reg 8 …. 19.15 reg 8A …. 19.15

New South Wales Artesian Wells Act 1897 …. 9.12 Catchment Management Authorities Act 2003 …. 6.21 s 5 …. 6.9 Central Coast Water Corporation Act 2006

s 33 …. 6.23 Clean Waters Act 1970 …. 5.16 s 16 …. 5.16 s 16(1) …. 5.16 s 16(2) …. 5.16 Constitution Act 1902 s 5 …. 5.11 s 50B …. 6.23 Environmental Planning and Assessment Act 1979 …. 4.34, 17.5, 17.6 Pt 3A …. 4.48 s 5 …. 4.34 s 7 …. 4.34 s 37 …. 4.34 s 39 …. 4.34 Fire Brigades Act 1989 s 15 …. 11.13 Hunter Water Act 1991 s 12 …. 6.23 Independent Pricing and Regulatory Tribunal Act 1992 …. 21.28 Pt 3 …. 6.23 Pt 4B …. 6.23 Div 1 …. 6.23 s 4(6) …. 21.29 Interpretation Act 1987 s 21 …. 15.88 s 33 …. 4.1 ss 40–41 …. 15.88 Local Land Services Act 2013 …. 15.46, 15.66

Murray-Darling Basin Act 1992 …. 3.4, 7.5, 7.6, 7.12, 7.24, 25.33 Pt 3 …. 7.12 s 27 …. 7.12 s 31 …. 15.88 Murrumbidgee Regulated River Plan Dealing Rules cl 7(1) …. 25.33 cl 7(2) …. 25.33 cl 10 …. 25.33 cl 17 …. 25.33 cl 53(8) …. 25.33 Natural Resources Commission Act 2003 …. 15.66, 15.74 New South Wales–Queensland Border Rivers Act 1947 …. 7.32 s 4 …. 7.32 s 7 …. 7.32 s 10 …. 7.32 s 24 …. 7.32 Plantations and Reafforestation Act 1999 s 52(1) …. 16.108 s 52(2) …. 16.108 Protection of the Environment Administration Act 1991 s 6 …. 4.41 s 6(2) …. 4.7 s 6(2)(a) …. 4.42 Protection of the Environment Operations Act 1997 …. 17.5 Registration of Deeds Act 1825 …. 25.37 Snowy Hydro Corporatisation Act 1997 …. 7.27 Pt 4 …. 7.29 Pt 5 …. 7.29 s 4 …. 7.27

s 5A …. 7.27 s 8 …. 7.27 s 20 …. 7.29 s 21 …. 7.29 s 22 …. 7.30 s 23(3) …. 7.29 Snowy Mountains Hydro-electric Agreements Act 1958 …. 3.6, 7.25 Water Act 1912 …. 5.62, 5.64, 9.12, 9.19, 12.2, 14.8, 14.17, 15.14, 15.26, 16.67, 16.90, 16.104, 17.4, 18.19, 19.3, 19.15, 19.26, 19.29, 22.25, 24.40, 24.48, 24.63, 25.29 Pt 2, Div 4B …. 14.9 Pt 2, Div 4C …. 20.24, 24.63 s 4B …. 9.14 s 5 …. 25.29 s 20AB …. 14.9 s 20AH …. 24.63 s 20AH(1) …. 24.63 s 20AH(2) …. 24.63 s 20AI …. 24.63 s 20XC …. 14.17 s 22B …. 14.17 s 22D …. 24.63 s 22X …. 14.18 s 113(2) …. 19.19 s 117J …. 24.63 Water Act 2000 …. 12.2 s 3(c)(iv) …. 13.32 s 13(1)(e) …. 13.32

s 14 …. 13.32 s 20(2)(3) …. 11.10 Water Administration Act 1986 …. 24.40 s 12(1) …. 24.63 Water (Amendment) Act 1977 …. 14.9, 14.17 Water (Amendment) Act 1986 …. 20.24, 24.63 Water and Drainage and Artesian Wells (Amendment) Act 1906 …. 9.12 Water (Commonwealth Powers) Act 2008 …. 3.20, 7.16, 7.24 Water Industry Competition Act 2006 …. 1.33, 6.23 Water Management Act 2000 …. 1.33, 3.9, 4.42, 6.3, 6.23, 7.24, 7.30, 7.32, 9.19, 10.10, 13.30, 13.31, 15.2, 15.4, 15.14, 15.23, 15.27, 15.39, 15.46, 15.49, 15.52, 15.64, 15.66, 15.82, 16.5, 16.7, 16.27, 16.30, 16.31, 16.52, 16.58, 16.60, 16.67, 16.74, 16.88, 16.90, 16.104, 16.108, 16.109, 17.4, 17.5, 18.5, 18.6, 18.8, 18.12, 18.17, 18.19, 19.3, 19.15, 19.19, 19.26, 19.30, 20.14, 20.21, 20.32, 21.4, 21.9, 21.15, 21.23, 22.5, 22.6, 22.8, 22.21, 22.25, 22.28, 22.36, 24.3, 25.2, 25.19, 25.29, 25.33, 25.35, 25.36, 25.37, 25.38, 25.106 Ch 2, Pt 2 …. 15.48 Ch 2, Pt 3 …. 15.48 Ch 2, Pt 3, Div 2 …. 14.16 Ch 3 …. 21.29 Ch 6 …. 6.23 Ch 7, Pt 1 …. 16.108 Ch 8 …. 6.6, 6.13 Ch 8, Pt 3 …. 16.114 Pt 2 …. 6.6 Pt 3 …. 6.13 Div 3A …. 25.20

Div 4 …. 24.45 s 3 …. 4.5, 4.7, 4.41, 15.66, 16.88 s 3(c) …. 4.13 s 3(c)(iv) …. 4.14 s 3(d) …. 4.14 s 4 …. 4.41 s 4(2) …. 15.66 s 5 …. 4.2, 4.18, 16.88 s 5(2) …. 4.18 s 5(2)(g) …. 15.39 s 5(3) …. 4.18, 4.20, 16.26, 16.31, 20.32 s 5(3)(a) …. 16.31 s 5(3)(b) …. 16.52, 16.60 s 5(3)(c) …. 4.22 s 6 …. 4.2, 4.37, 4.38 s 6(3)(a) …. 7.32 s 6(6) …. 4.38, 15.4 s 7(3)(a) …. 15.23 s 7(3)(b) …. 15.23 s 7(3)(c) …. 15.23 s 7(4) …. 15.16, 15.23 s 7(4)(b) …. 15.23 s 7(5) …. 15.23 s 8 …. 15.23, 16.24, 16.27, 25.35 s 8(1) …. 16.24 s 8(1)(a) …. 16.24, 16.30 s 8(1A) …. 16.24, 16.31 s 8(1)(b) …. 16.25, 18.17, 25.35 s 8(2) …. 16.24, 16.30

s 8(3) …. 15.23 s 8A …. 22.36 ss 8A–8E …. 16.24 s 8B …. 16.25, 18.17, 25.35 ss 8B–8D …. 18.17 s 8C …. 16.25, 18.17, 25.35 s 8D …. 16.25, 18.17, 25.35 s 8E …. 16.25 s 8E(3) …. 18.17 s 8E(4) …. 18.17 s 8E(7) …. 18.17 s 8E(8) …. 18.17 s 8E(9) …. 16.25, 18.17, 25.16, 25.35 s 8F …. 16.25 s 9 …. 4.3, 7.32, 16.26, 16.60, 20.3 s 9(1) …. 4.20, 4.22, 15.39 s 9(1)(b) …. 16.31 s 9(2) …. 4.23, 4.39, 15.4 s 11 …. 15.17, 15.27 s 12(1) …. 6.16, 15.20 s 13(1)(e) …. 15.46 s 14 …. 15.37 s 15 …. 15.37, 15.21, 15.27 s 15(1) …. 15.17, 15.20, 15.40 s 15(2) …. 15.40 s 15(3) …. 15.21, 15.37, 15.40 s 16(1) …. 15.4 s 16(1)(a) …. 17.5, 20.6

s 16(1)(e) …. 17.5 s 16(b) …. 17.5 s 16(c) …. 17.5 s 16(d) …. 17.5 s 17 …. 16.7 s 18 …. 15.46 s 18(1) …. 15.39 s 19(2) …. 15.27 s 20 …. 14.25 s 20(1) …. 16.6 s 20(1)(a) …. 16.24, 16.27, 16.30, 25.35 s 20(1)(b) …. 16.52, 16.108 s 20(1)(c) …. 16.108 s 20(1)(d) …. 16.67, 25.32 s 20(1)(e) …. 15.23, 16.6, 16.52, 16.67 s 20(2) …. 16.6, 16.58, 16.67 s 20(2)(a) …. 16.26 s 20(2)(b) …. 17.4 s 20(2)(e) …. 15.66, 21.15 s 20(2)(f) …. 16.26, 16.52 s 20(2)(f) …. 15.23 s 21 …. 16.7 s 21(C) …. 15.66 ss 31–33 …. 18.29, 19.3 s 34 …. 17.6 s 34(1) …. 16.108 s 35(1) …. 15.64, 16.5 s 36 …. 15.44 s 36(3) …. 15.45

s 37 …. 15.44, 15.46 s 38 …. 15.44 s 38(3) …. 15.44 s 39 …. 15.44, 15.46 s 40 …. 15.44, 15.46 s 40(1) …. 15.59 s 40(2) …. 15.44, 15.59 s 41 …. 15.56, 15.59, 15.60 s 41(1)(b) …. 15.60 s 41(2) …. 15.59 s 41(3) …. 15.60, 17.4 s 42 …. 15.82 s 42(2) …. 15.81 s 42(3) …. 15.81 s 43 …. 15.74 s 43A …. 6.9, 15.66, 15.74 s 43A(6) …. 15.74 s 44 …. 15.64, 15.66 s 45 …. 15.52, 15.82 s 45(1) …. 15.82 s 45(1)(a) …. 15.49, 15.51, 15.52, 15.82 s 45(8) …. 15.81 s 46 …. 15.81, 16.88, 22.28 s 47 …. 16.28, 17.7 s 48 …. 17.4, 22.21 s 49 …. 17.6 s 49A …. 16.52 s 50 …. 15.37, 15.52, 25.32

s 50(1) …. 15.20 s 50(1A) …. 15.20 s 50(1)(b) …. 15.27 s 50(1)(c) …. 15.20, 15.27 s 50(2) …. 16.24, 25.32 s 50(2)–(2A) …. 15.20 s 50(5) …. 15.20 s 51 …. 16.7 s 52 …. 10.10, 11.3, 11.4, 11.8, 16.108, 25.10 s 52(1)(a) …. 11.9 s 52(2) …. 16.57 s 53 …. 11.3, 11.4, 11.13, 25.10 s 55 …. 13.30, 16.60 s 56 …. 14.25, 16.108 s 56(1)(a) …. 25.19 s 56(1)(b) …. 18.11, 25.19, 25.20 s 56(2) …. 21.4 s 56(1)(b) …. 21.4 s 56(5) …. 25.19 s 57 …. 19.15, 25.8 s 57(1) …. 16.108, 18.29 s 57(1)(a) …. 25.25 s 57(1)(k) …. 16.58 s 57(1A) …. 18.29 s 57(2) …. 16.108 s 58 …. 16.74, 25.33 s 58(1) …. 25.33 s 58(3) …. 17.4 s 59 …. 14.25

ss 59–60 …. 16.71 s 60 …. 14.25 s 60(1) …. 17.4 s 60(3) …. 16.52 s 60(4) …. 21.7 s 60A …. 10.10 s 61 …. 19.15, 19.17, 19.30, 25.23 s 61(1) …. 17.4, 21.15 s 66(1)(b) …. 21.15, 25.23 s 61(3) …. 19.19, 19.20 s 62 …. 19.20, 25.23 s 62(1)(a) …. 25.23 s 62(1)(b) …. 25.23 s 63 …. 16.30, 19.15, 20.3 s 63(1) …. 19.23 s 63(2) …. 17.4, 20.6, 20.7 s 63(2)(b) …. 20.14 s 63(3) …. 19.15 s 63(5) …. 20.10, 25.23 s 63A …. 18.17 s 63B …. 18.17, 25.35 s 64 …. 19.23 s 65 …. 19.30, 20.21, 25.23 s 65(2)(b) …. 20.21 s 66 …. 17.4 s 66(1) …. 15.66 s 66(1)(a) …. 22.6 s 66(2A) …. 21.15

s 66(3)–(4) …. 22.6 s 67 …. 22.6 s 67(3) …. 22.6 s 68 …. 22.6 s 68(1A) …. 22.6 s 68(1B) …. 22.6 s 68A(1) …. 22.6, 22.21 s 68B …. 22.6 s 69 …. 21.5 s 71 …. 25.20, 25.36 s 71A …. 25.20, 25.36 s 71B …. 25.20 s 71B(1) …. 25.37 s 71B(2) …. 25.37 s 71C …. 25.20, 25.36 s 71D …. 25.37 s 71E …. 25.37 s 71F …. 25.36 s 71G …. 25.33 s 71H …. 25.38 s 71J …. 25.38 s 71K …. 25.33, 25.38 s 71L …. 19.15, 25.20 ss 71L–71ZA …. 24.45 s 71M …. 25.20, 25.23, 25.26, 25.27 s 71M(2) …. 25.20 s 71M(3) …. 25.20 s 71M(4) …. 25.28 s 71M(5) …. 25.21

s 71M(7) …. 25.23 s 71M(7)–(8) …. 25.20 s 71M(8) …. 25.23, 25.28 s 71N …. 25.20, 25.27, 25.29 s 71N(5) …. 25.29 s 71N(10) …. 25.29 s 71N(10)–(11) …. 25.20 s 71O …. 25.22, 25.24 s 71P …. 25.22 s 71Q …. 18.12, 25.20, 25.22 s 71Q(1) …. 25.23 s 71Q(7) …. 25.20 s 71S …. 18.12, 25.20, 25.22, 25.24, 25.28 s 71S(2) …. 25.24 s 71T …. 25.20, 25.31, 25.33 s 71T(2) …. 25.31 s 71T(4) …. 25.31 s 71U …. 25.20, 25.131 s 71V …. 25.20, 25.131 s 71W …. 21.4, 25.22, 25.24, 25.28, 25.32 s 71X …. 25.30 s 71X(1)(f) …. 25.32 s 71Y …. 19.15, 25.33 s 71Y(1) …. 25.32 s 71Z(1) …. 25.32 s 71Z(2) …. 25.32 s 71Z(3) …. 25.32 s 73(4) …. 25.26

s 74 …. 25.22, 25.26 s 74(1) …. 25.26 s 74(3) …. 25.26 s 74(4) …. 25.26 ss 75–76 …. 21.9 s 77A …. 22.22 s 78 …. 22.22 s 78A …. 22.22 s 79 …. 22.36 s 79(6) …. 22.36 s 79(7) …. 22.6 ss 80–82 …. 19.29, 19.30 s 81(b) …. 25.35 ss 84–85 …. 15.66, 21.9 s 87 …. 16.88, 16.114, 22.28 s 87A …. 22.28 s 87AA …. 15.81, 15.82, 16.88, 16.114 s 87AA(3)(b) …. 22.28 s 87AA(3)(c) …. 22.28 s 89 …. 4.19 s 90 …. 18.8 ss 90–91 …. 18.8 s 91 …. 18.29, 19.3 s 91(2) …. 16.108 s 91(3) …. 16.108 s 91F …. 18.29, 19.3 s 91H …. 21.15 ss 91H–91K …. 21.15 s 100 …. 21.15

ss 110–112 …. 19.30 s 111 …. 22.8 s 111A …. 22.8 s 112 …. 22.8 s 113 …. 22.8 s 114 …. 21.28 s 125 …. 22.8 s 126 …. 22.8 ss 128–135 …. 22.8 s 132 …. 22.2 s 189A …. 18.12, 25.140 s 190B …. 18.12, 25.140 s 217 …. 22.8 s 218 …. 22.8 s 219 …. 22.8 s 237A …. 25.140 s 237B …. 25.140 s 324(1) …. 22.5 s 324(2) …. 22.5 s 326 …. 21.23 s 334 …. 22.5 s 335 …. 22.5 s 336 …. 22.5 s 336C …. 22.5 s 346 …. 18.10 s 367(2)(j) …. 21.9 s 368 …. 6.39 ss 371–372 …. 6.6

s 372A …. 21.23 s 373 …. 6.6 s 375 …. 6.6 s 379(5) …. 6.13 s 386B …. 7.24, 7.29 s 386C …. 7.24 s 386D …. 7.24 s 386F …. 7.24 s 387 …. 6.9 ss 387–388 …. 6.8 s 388 …. 15.21 s 389A …. 6.81 s 391A …. 21.28, 25.131 s 392 …. 9.17, 24.45 s 392(3) …. 10.10 s 393 …. 10.6 s 400(1)(b) …. 21.28 s 808(1) …. 19.4 s 808(2) …. 19.4 s 986 …. 16.114 Sch 1A …. 25.36, 25.37 Sch 1A, cl 3(4) …. 25.37 Sch 1A, cl 4 …. 25.37 Sch 4 …. 19.30 Sch 10, cl 10 …. 25.29 Sch 10, cl 10(3) …. 25.29 Sch 10, cl 10(4) …. 25.29 Sch 12 …. 15.81 Dictionary …. 13.30, 16.6, 16.60, 16.108, 18.5, 18.6, 18.8, 25.20,

25.26 Water Management (Amendment) Act 2002 …. 23.44 Sch 1 …. 15.27 Water Management (Amendment) Act 2004 …. 15.20, 16.24, 16.30 s 65 …. 19.30 Sch 1 …. 15.21 Sch 2 …. 19.30 Water Management Amendment Act 2005 …. 16.29, 16.31 s 3 …. 16.24 Sch 1 …. 16.24 Water Management (General) Regulation 2004 reg 8 …. 16.108 reg 15 …. 15.66 reg 30 …. 16.108 Water Management (General) Regulations 2011 reg 14 …. 21.9 reg 15 …. 21.9 Water NSW Act 2014 …. 6.6 s 11 …. 6.23 Water Rights Act 1896 …. 9.24, 9.27, 13.7, 24.3, 24.40, 24.41, 24.44 s 1 …. 9.5, 9.24 s 1(1) …. 24.41 Water Sharing Management Plan for the Murrumbidgee Regulated River Water Source 2016 cl 81(1)(b) …. 21.15

Northern Territory

Control of Waters Ordinance 1938 …. 24.44 s 3 …. 9.9 Interpretation Act …. 4.5 s 62A …. 4.1 Lake Eyre Basin Intergovernmental Agreement Act 2009 …. 7.35 Mineral Titles Act 2010 …. 22.19 Power and Water Corporation Act s 14A …. 6.29 Utilities Commission Act …. 6.29 Pt 3 …. 6.29 Div 8 …. 6.29 Water Act 1992 …. 1.40, 3.9, 6.3, 6.29, 18.27, 18.31, 19.10, 19.15, 19.20, 19.24, 20.21, 20.32, 21.22, 22.35, 25.2, 25.124, 25.125 Pt 6A …. 25.126 s 4 …. 1.40, 11.3, 11.12, 18.27 s 4(1) …. 19.10 s 4(1)(h) …. 19.10 s 5(1) …. 19.10 s 6 …. 19.19 s 7 …. 18.27, 19.10 s 9 …. 9.17, 11.12 s 9(2) …. 9.9, 9.14 s 10 …. 11.5, 22.19, 25.124 s 11 …. 11.3, 11.8, 22.19 s 14 …. 11.3, 11.8, 11.9, 22.19 s 22 …. 25.125 s 22A …. 25.125 s 22B …. 14.14, 15.2

s 22B(1) …. 25.125 s 22B(4) …. 18.27 s 22B(5) …. 25.125 s 22B(5)(a) …. 18.27 s 22B(5)(c) …. 18.27, 25.125, 25.126 s 22B(5)(d) …. 21.28 s 23 …. 6.11, 6.19 s 24 …. 19.20 s 24(3) …. 13.32 s 30 …. 19.20 s 31 …. 19.20 s 34 …. 22.35 s 36 …. 19.24 s 41 …. 18.27 s 43 …. 18.27, 19.10 s 44 …. 10.11, 11.12, 19.10 s 44(1) …. 19.10 s 45 …. 18.27, 19.15, 19.23, 21.12, 21.22, 25.124 s 45(1) …. 19.17 s 45(2) …. 21.4 s 45(3) …. 25.124 s 45(3)–(4) …. 21.5 s 45(4) …. 25.124 s 48 …. 18.10 s 57 …. 18.27 s 59 …. 10.11, 11.12 s 59(1) …. 19.10 s 60 …. 18.27, 19.15, 19.23, 21.12, 21.22, 25.124, 25.126 s 60(1) …. 19.17

s 60(2) …. 21.4 s 60(3)–(4) …. 21.5 ss 66–67 …. 18.31 ss 71A–71E …. 19.19 s 71A(2)(a) …. 25.126 s 71A(2)(b) …. 25.126 s 71A(3) …. 21.5 s 71B …. 19.19 s 71C …. 19.19 s 71D …. 19.19 s 71C …. 19.23 s 71D …. 19.23 s 87 …. 22.35 s 90 …. 20.3 s 90(1)(ab) …. 20.13 s 90(1)(c) …. 20.32 s 92 …. 18.27, 25.127 s 93 …. 22.20 s 93(2). …. 22.22 s 95 …. 18.27 s 95(1) …. 25.128 s 95(3) …. 25.128 s 95(4) …. 25.128 s 96 …. 22.19 s 107 …. 22.35 s 108(2) …. 21.28 Water Supply and Sewerage Services Act …. 6.29

Queensland Acts Interpretation Act 1954 s 14A(1) …. 4.1 Cape York Peninsula Heritage Act 2007 …. 13.33 s 27 …. 13.33 Constitution Act 1867 s 2 …. 5.11 Constitution of Queensland 2001 s 8 …. 5.11 s 44 …. 6.24 Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 …. 15.2, 16.8 Fauna Conservation Act 1974 …. 9.19 s 7 …. 9.19 Lake Eyre Basin Agreement Act 2001 …. 7.35 Land and Other Legislation Amendment Act 2014 …. 18.6 Land Title Act 1994 …. 25.51 Murray-Darling Basin Act 1996 …. 7.5, 7.6 National Parks and Wildlife Act 1975 s 25 …. 4.28 New South Wales–Queensland Border Rivers Act 1946 …. 7.32 s 4 …. 7.32 s 5 …. 7.32 s 7 …. 7.32 s 10 …. 7.32 Queensland Competition Authority Act 1997 …. 21.28 Pt 3 …. 6.24 Pt 5 …. 6.24 Pt 5A …. 6.24

Rights in Water and Water Conservation and Utilization Act 1910 …. 24.44 South-East Queensland (Distribution and Retail Restructuring) Act 2009 …. 6.24 South East Queensland Water (Restructuring) Act 2007 …. 6.24 South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012 …. 6.8, 6.24 Statutory Instruments Act 1992 …. 17.8 s 47 …. 15.60, 17.8 s 49 …. 15.57 ss 49–50 …. 17.8 s 50 …. 15.57 s 54 …. 15.75 Sustainable Planning Act 2009 …. 18.9 s 235 …. 18.9 s 236 …. 18.9 s 238 …. 18.9 Sch 8, Pt 1 …. 18.9 Sch 8, Pt 2 …. 18.9 Sustainable Planning Regulation 2009 …. 18.9 Sch 3, Pt 1 …. 18.9 Sch 3, Pt 2 …. 18.9 Water Act 1926–1968 …. 20.23 Water Act 1926–1979 …. 24.40 s 4 …. 24.44 Water Act 2000 …. 1.34, 3.9, 4.14, 6.24, 10.11, 11.12, 13.30, 14.14, 15.2, 15.9, 15.11, 15.28, 15.46, 15.59, 15.67, 15.75, 15.83, 16.8, 16.34, 16.53, 16.62, 16.68, 8.9, 18.11, 18.12, 18.16, 18.21, 19.4, 19.13, 19.19, 19.24, 19.30, 20.21, 20.32,

21.4, 21.5, 21.10, 21.16, 22.7, 22.21, 22.29, 25.2, 25.39, 25.43, 25.48, 25.51 Ch 2 …. 16.8, 22.7, 25.8 Ch 2, Pt 3 …. 14.14 Ch 2, Pt 5 …. 18.9 Ch 2, Pt 6 …. 18.20 Ch 2, Pt 11 …. 18.9 Ch 2A …. 1.34, 6.8, 6.24, 15.2 Ch 3 …. 6.8, 16.8 Ch 3A …. 6.8, 16.8 Ch 4 …. 6.24 Ch 8 …. 22.29 Ch 8, Pt 6 …. 7.24 Pt 2 …. 22.7 Pt 3, Div 3 …. 22.29 Pt 4, Div 2 …. 14.14 Pt 3, Div 5 …. 25.8 Pt 4, Div 6 …. 21.10 Div 2A …. 22.7 Div 2B …. 22.7 s 2 …. 4.2, 4.3, 4.7 s 2(1) …. 16.9 s 2(2) …. 16.9 s 2(2)(a) …. 4.14, 4.41 s 2(2)(b) …. 4.14 s 2(2)(d) …. 4.14, 16.62 s 7(2)(h) …. 4.14 s 7 …. 4.2, 4.3, 4.7 s 7(2)(d) …. 4.14

s 7(3) …. 4.14 s 7(a) …. 4.14 s 7(b) …. 4.41 s 10 …. 4.5, 4.7 ss 10–12 …. 20.3 s 10(2) …. 13.30 s 10(2)(c) …. 4.18 s 10(3) …. 4.18 s 11 …. 4.18 s 12 …. 4.23 s 19 …. 9.17 s 20 …. 19.4 s 20(1) …. 11.5 s 20(1)(a) …. 11.15 s 20(1)(b) …. 11.15 s 20(2) …. 11.7, 11.12, 20.25 s 20A …. 11.8, 19.4 s 20A(1) …. 11.3 s 20A(2) …. 11.3 s 20A(4) …. 11.3 s 20B …. 13.30, 19.4 s 22 …. 22.7 s 23 …. 22.7 s 24 …. 22.7 s 25 …. 22.7 s 25Y …. 15.9 s 26 …. 19.30 ss 26–30 …. 19.26 s 35 …. 15.9

s 35(1) …. 15.9 s 36 …. 15.9 s 37 …. 4.7, 4.23 s 37(1) …. 15.9 s 38 …. 15.9 s 39 …. 4.7 s 41 …. 4.7, 15.67, 15.83, 16.9 s 42 …. 15.17 ss 42–46 …. 15.38 s 42(1) …. 15.28 s 42(2) …. 15.28 s 43 …. 16.9, 16.62 s 43(1)(b) …. 16.34, 16.53 s 43(1)(c) …. 16.68 s 43(1)(d) …. 16.34 s 43(1)(e) …. 16.53, 16.68 s 43(2) …. 16.9 s 43(2)(a) …. 16.34 s 43(2)(b) …. 16.34 s 43(2)(c) …. 16.34 s 43(2)(d) …. 16.53 s 43(2)(k) …. 16.68 s 43(2)(l) …. 16.10, 16.68 s 43(2)(o) …. 16.34 s 44 …. 6.18, 15.44 s 45 …. 15.44 s 46 …. 6.18, 15.44, 15.46 s 46(2)(h) …. 20.21

s 47 …. 15.57 s 47(1) …. 15.59 s 47(3) …. 15.60 s 48 …. 15.57 s 48(1) …. 15.57, 17.8 s 48(2) …. 15.60, 17.8 s 49 …. 15.44, 15.67, 15.75 s 50 …. 15.75, 15.83 s 50(2) …. 15.83 s 51 …. 15.83 s 53 …. 15.75 s 58 …. 4.7, 16.10 s 67 …. 16.10, 17.9 s 67(b) …. 16.68 s 67(d) …. 16.68 s 68 …. 17.9 s 70 …. 16.10 s 95 …. 16.60, 16.62 s 96 …. 16.57, 16.62 s 98(2)(d) …. 20.21 s 98(4) …. 15.14 s 100 …. 16.62 s 104 …. 25.41 s 106(2) …. 25.41 s 107 …. 25.42 s 107(b) …. 20.15 s 107A …. 18.9, 18.21 s 107A(3) …. 19.15 s 107B …. 18.9, 18.21

s 108 …. 18.21, 20.3, 20.15, 20.21 ss 108A–108C …. 18.21 s 108C …. 20.3 s 109 …. 18.11 s 110 …. 18.21 s 110(1) …. 21.16 s 110(2) …. 21.16 s 110(2)(a)(i) …. 21.10 s 110(2)(a)(iv) …. 21.29 s 111 …. 15.9 ss 113–114 …. 17.8 s 113(a) …. 17.8 s 114–118A …. 18.21 s 114(3) …. 17.8 s 117 …. 25.41 s 119 …. 22.22 s 120(e) …. 25.42 s 120(f) …. 25.42 s 120(g) …. 25.42 s 120B …. 18.11, 21.4 s 121 …. 21.4 s 121(3)(b) …. 25.42 s 121(9) …. 21.5 s 122 …. 19.15, 19.17, 19.23, 20.3, 20.6, 20.15, 20.21, 21.4 s 122(1) …. 25.42 s 122(3) …. 19.23 s 122(4) …. 18.11 s 122(7) …. 21.5

s 123 …. 20.6 s 126 …. 25.42, 25.46 s 127(1)(b) …. 21.4 s 127(1)(e) …. 21.16 s 127(2) …. 18.11 s 127(2)(a) …. 25.44 s 127(2)(b) …. 25.44 s 127A …. 18.11, 21.16 s 127B …. 18.11 s 128 …. 21.5 s 128(1)(g) …. 18.12 s 128(1)(i) …. 18.12 s 128A …. 19.15 s 128B …. 19.15 s 129 …. 18.12, 25.48 ss 129–131 …. 17.9 s 131 …. 25.48 s 131(2) …. 25.42 s 132 …. 19.19 s 138 …. 21.5, 22.22 s 138(6) …. 20.21 s 143 …. 16.68, 25.43 ss 143–145 …. 15.14 s 145 …. 17.9 s 146 …. 16.9, 16.68, 25.39 s 146(1)(b) …. 25.50 s 146(2) …. 25.39 s 147 …. 16.9, 17.8, 21.10, 25.39 s 147(4) …. 25.39

s 148 …. 17.8 s 150 …. 17.8 s 150(2) …. 25.51 s 151(1)(e) …. 25.51 s 152(1) …. 25.50 s 152(2) …. 25.50 s 156 …. 25.43 s 156(2) …. 25.43 s 158(1) …. 25.43 s 158(2) …. 25.43 s 158(4)(a) …. 25.43 s 158(4)(b) …. 25.43 s 158(4)(c) …. 25.43 s 159(4) …. 25.43, 25.47 s 161(1) …. 25.43, 25.51 s 161(2) …. 25.43, 25.47, 25.51 s 165 …. 25.51 s 167(1) …. 25.49 s 167(4) …. 25.49 s 168 …. 19.15 s 168(1) …. 25.49 s 168(2) …. 25.49 s 168(3) …. 25.49 s 169(1) …. 25.49 s 169(b)(i) …. 19.15 s 170 …. 25.50 s 170(1) …. 25.51 s 170(3) …. 25.51

s 170(9) …. 25.51 s 172(2) …. 25.51 s 173 …. 25.51 s 175(a) …. 25.52 s 175(b) …. 25.52 s 176 …. 20.21, 25.39, 25.40 s 176(2) …. 25.45 s 177 …. 25.39 s 177(1) …. 25.40 s 179 …. 16.68 s 182 …. 4.7 s 187 …. 25.8 s 187(1) …. 25.45 s 187(2) …. 19.15 s 187(3) …. 25.45 s 187(3)(c) …. 25.45 s 189 …. 20.21 s 191(1) …. 25.45 s 192(1) …. 25.45 s 192(1)(b) …. 25.45 s 205 …. 18.21, 20.6 s 206 …. 19.13 ss 206–207 …. 19.17 s 206(3) …. 19.13 s 206(4)(g) …. 18.16 s 208 …. 19.19, 19.20 s 208(4) …. 19.20 s 210 …. 20.3 s 211 …. 19.23

s 211(3) …. 19.23 s 211(4) …. 19.23 s 212 …. 20.21 s 213(1)(e)(viii) …. 18.16 s 213(a) …. 21.5 s 214 …. 21.12 s 214(2)(a) …. 22.21 s 214(2)(c) …. 22.21 s 214(2)(d) …. 20.32 s 215 …. 21.13 s 216 …. 22.1 s 216A …. 22.1 s 218 …. 22.21 s 220 …. 21.5 s 221 …. 21.5 s 227 …. 22.22 s 237 …. 18.21 s 299 …. 18.10 s 360Y …. 17.9 s 572 …. 21.29 s 808 …. 10.11 s 851(1) …. 22.29 s 877ff …. 22.29 s 985(1) …. 22.29 s 986 …. 22.29 s 986A …. 22.29 ss 986A–986G …. 22.29 s 986F …. 22.29

s 988 …. 22.29 s 989 …. 22.29 s 991 …. 22.29 s 1010A …. 15.11 s 1014 …. 22.7 s 1014(2)(a) …. 21.28 Sch 4 …. 16.9, 25.44 Dictionary …. 1.34, 15.28, 16.9, 16.62, 18.9, 19.4, 19.27, 21.4 Water Amendment Act 2006 …. 6.8 Water and Other Legislation Amendment Act 2004 Pt 4 …. 7.35 Water and Other Legislation Amendment Act 2007 Pt 4 …. 7.35 Water and Other Legislation Amendment Act 2010 Pt 14 …. 6.8 s 195 …. 15.2 Water and Other Legislation Amendment Act 2014 …. 6.18, 15.14 Water (Commonwealth Powers) Act 2008 …. 3.20 Water Legislation Amendment Act 2016 …. 4.23, 15.2, 16.8 Pt 4 …. 6.18 s 12 …. 4.7 Water Reform and Other Legislation Amendment Act 2014 …. 4.23, 15.2 Pt 8 …. 15.9 Water Regulation 2002 …. 18.9, 21.10, 21.16, 21.23 Pt 5 …. 21.23 reg 14A …. 21.29 reg 56 …. 21.29

reg 58 …. 21.29 reg 62 …. 18.9 reg 63 …. 21.29 reg 66 …. 18.21 Sch 14 …. 21.29 Water Regulation 2016 …. 16.68, 25.46 regs 27–30 …. 16.68 reg 35(1) …. 25.46 reg 35(2) …. 25.46 reg 38(3) …. 25.46 reg 57 …. 25.48 reg 58 …. 25.48 reg 61 …. 25.48 reg 66 …. 25.47 reg 73(2) …. 25.47 Sch 5 …. 16.68 Water Resources Act 1989 s 4.22 …. 20.24 Dictionary …. 20.21 Water Resources and Other Legislation Amendment Act 2014 …. 16.8 Water Rights and Water Conservation and Utilisation Act 1910 s 5 …. 9.13 Water Supply (Safety and Reliability) Act 2008 …. 1.34, 6.24, 15.11 Ch 2 …. 6.24 Ch 3 …. 6.24 Pt 4 …. 6.24 ss 10–11 …. 6.24

s 20 …. 6.24 ss 92–93 …. 6.24 Wild Rivers Act 2000 …. 13.33

South Australia Acts Interpretation Act 1915 s 22 …. 4.1 Constitution Act 1934 s 5 …. 5.11 Control of Waters Act 1919 …. 24.40 s 4 …. 9.8 Development Act 1993 …. 6.15, 20.26 Essential Services Commission Act 2002 …. 21.28 s 3 …. 6.25 s 5 …. 6.25 Fire and Emergency Services Act 2005 s 42(2)(j) …. 11.13 s 97(2)(j) …. 11.13 Groundwater (Border Agreement) Act 1985 …. 7.33 s 5 …. 7.33 s 5A …. 7.33 Sch 2 …. 7.33 Irrigation Act 2009 …. 6.25, 25.54 ss 32–34 …. 25.140 Lake Eyre Basin (Intergovernmental Agreement) Act 2001 …. 7.35 Lake Eyre Basin (Intergovernmental Agreement) (Ratification of Amendments) Amendment Act 2008 …. 7.35 Murray-Darling Basin Act 1993 …. 3.4, 7.5, 7.6

Murray-Darling Basin Act 2008 Pt 4, cl 8 …. 16.94 Sch 1 …. 16.94 Murray River Act 2003 …. 25.64 Natural Resources Management Act 2004 …. 6.4, 6.5, 7.24, 14.14, 14.42, 14.45, 15.2, 15.5, 15.11, 15.18, 15.29, 15.33, 15.37, 15.44, 15.46, 15.68, 15.76, 16.11, 16.54, 16.58, 16.61, 16.70, 16.94, 16.95, 16.96, 16.104, 16.110, 17.12, 18.5, 18.6, 18.8, 18.11, 18.12, 18.28, 19.5, 20.9, 20.10, 20.21, 20.26, 20.32, 21.4, 21.11, 21.17, 21.26, 22.2, 22.9, 22.30, 25.2, 25.54 Ch 3 …. 6.15 Ch 5, Pt 1, Div 2 …. 21.28 Ch 7, Pt 3, Div 1 …. 25.55 Ch 7, Pt 3, Div 5 …. 25.57 Ch 7, Pt 5A …. 16.12, 16.111 Pt 3 …. 6.15 Pt 4 …. 6.15 Divs 1–4 …. 6.15 s 3 …. 1.35, 15.5, 16.60, 25.131 s 3(1) …. 16.70, 16.76, 18.5, 18.6, 18.8, 19.5 s 4 …. 7.24, 7.36 s 4(2) …. 7.33 s 7(1) …. 4.5, 4.7 s 7(2) …. 4.7 s 7(2)(h) …. 13.32 s 7(3) …. 4.2, 4.7, 4.18 s 7(3)(a) …. 4.14 s 7(3)(b) …. 4.41 s 7(3)(c) …. 4.41 s 7(3)(h) …. 4.14, 16.61

s 7(3)(j) …. 4.14 s 7(3)(k) …. 4.14 s 8 …. 4.3, 4.23, 20.3 s 9 …. 16.59 s 9(3) …. 16.59 s 10(1) …. 15.68 s 10(1)(e) …. 15.11 s 10(2) …. 15.11 s 10(3) …. 15.11 s 10(4) …. 15.68 s (13)–(15) …. 15.44 s 22 …. 15.18 s 22(2) …. 15.29 s 23 …. 15.18 s 23(1) …. 6.15 s 25 …. 6.15 s 25(2) …. 15.46 s 25(2)(b) …. 13.32 s 25(4) …. 6.15, 15.46 s 29 …. 6.15 s 29(1) …. 15.37 s 29(1)(a) …. 6.15 s 29(1)(b) …. 6.15, 15.68 s 29(3) …. 6.15 s 29(5) …. 15.6 s 29(6) …. 6.15 s 31 …. 6.15 s 35 …. 6.15

s 52 …. 15.68 s 74 …. 4.2, 4.37, 15.5 s 74(3)(a) …. 15.68 s 74(3)(b) …. 15.68 s 74(6) …. 15.68 s 74(12) …. 15.5 s 74(13) …. 15.5 s 75(3)(a)(iii) …. 16.94 s 75(3)(e) …. 15.68 s 75(4) …. 15.5, 17.14 s 75(5) …. 17.14 s 76 …. 16.11, 16.60 s 76(1) …. 15.18, 15.29, 15.37 s 76(2) …. 15.46 s 76(4)(ab) …. 16.54, 16.70 s 76(4)(aab)(iii) …. 15.68 s 76(4)(c) …. 16.54, 16.61 s 76(4)(d) …. 16.54 s 76(4a) …. 16.54, 16.70, 16.76 s 76(4b) …. 16.703 s 76(5) …. 15.5, 17.14 s 76(7) …. 15.46 s 76(8) …. 15.46, 16.94 s 76(9)–(14) …. 16.110 s 76(d) …. 15.68 s 79 …. 13.32, 15.44 s 79(1) …. 15.44 s 79(1a) …. 15.44 s 79(7) …. 15.44

s 79(9) …. 15.44 s 79(16) …. 15.44 s 80 …. 17.10 s 80(2) …. 15.59 s 80(3) …. 15.44, 15.59 s 80(4) …. 15.44, 15.59 s 80(6) …. 15.60 s 80(7) …. 15.56, 17.10 s 80(8)–(16) …. 14.45, 15.56 s 81 …. 15.75, 15.76, 15.84 s 81(7) …. 16.95 s 81(8)(d) …. 16.95 s 82(1) …. 17.10 s 82(2) …. 17.10 s 83 …. 15.60, 17.10 s 84(2) …. 15.46 s 86 …. 17.10, 17.14 s 86(2) …. 16.94 s 87 …. 7.24, 16.94, 17.14 s 89 …. 7.24 s 89(2)(c) …. 16.94 s 91 …. 17.14 s 101(5)(a) …. 21.28 s 101(6) …. 21.29 s 101(8) …. 21.29 s 101(13) …. 21.29 s 103 …. 21.29 s 106 …. 21.17

s 107 …. 22.10, 22.22 s 115 …. 21.26 s 124 …. 16.60, 20.25 s 124(1) …. 11.3, 11.5, 11.6, 19.5 s 124(1)(2) …. 11.8 s 124(2) …. 11.3, 11.12, 19.5 s 124(2a) …. 19.5 s 124(3) …. 11.3, 11.5, 11.12 s 124(3)(a) …. 19.5 s 124(4) …. 11.3, 11.5, 11.8, 11.12, 19.5 s 124(7) …. 10.12, 16.58, 19.5 s 124(7a) …. 19.5 s 124(8) …. 10.5 s 125 …. 19.5 s 125(1) …. 15.18, 15.29 s 125(2) …. 15.18, 15.29 s 125(6) …. 15.18 s 127(2) …. 17.13 s 127(5) …. 17.13 s 124(7a) …. 18.28 s 127 …. 25.8 s 127(1) …. 19.5 s 127(3) …. 18.8 s 127(3)(c) …. 18.8 s 127(5)(a) …. 18.8 s 127(6) …. 19.5 s 128 …. 19.5 s 129 …. 18.8 s 132 …. 22.9

s 132(5) …. 22.10 s 132(6)(a) …. 22.10 s 134 …. 16.96 s 135 …. 18.8 s 135(11) …. 18.10 s 135(15) …. 18.8 ss 139–142 …. 18.10 s 146 …. 25.8 s 146(1) …. 25.55 s 146(1)–(5) …. 16.76 s 146(2) …. 16.54, 16.70, 21.4, 25.55 s 146(3)(c) …. 18.11 s 146(7a) …. 21.4 s 146(8) …. 25.55 s 147 …. 19.15, 19.17 s 147(2) …. 19.19, 19.23, 20.3, 20.21 s 147(3) …. 17.11, 20.6, 20.16, 25.62 s 147(3)(a)(ii) …. 20.14 s 147(3)(e) …. 20.16 s 147(3)(f) …. 20.16 s 147(4) …. 20.3 s 147(5) …. 20.3 s 147(6) …. 19.23 s 148(1) …. 25.55 s 148(2) …. 25.55 s 148(8) …. 22.25 s 148(c) …. 21.17 s 148(c)(ii) …. 25.55

s 148(e) …. 21.5, 25.55 s 149 …. 22.10, 22.21 s 149(1) …. 17.11, 18.12 s 149(1)(b) …. 22.10 s 149(3) …. 17.11 s 150 …. 19.15, 25.55, 25.58, 25.131 s 150(3) …. 25.58 s 150(4) …. 25.58 s 150(5) …. 25.62 s 150(6) …. 25.62 s 150(7)(a) …. 25.62 s 150(7)(b) …. 25.62 s 150(8) …. 17.11, 25.63 s 150(10) …. 25.64 s 150(11) …. 25.64 s 150(12) …. 25.65 s 150(13) …. 25.58, 25.66 s 150(16) …. 25.58 s 151 …. 21.5 s 152(1)–(3) …. 16.76 s 152(2)(a) …. 20.21 s 152(6) …. 25.56 s 152(7) …. 16.76, 25.56 s 153 …. 16.76 s 153(1) …. 20.6, 20.7 s 153(1)(b) …. 17.11 s 153(2) …. 16.76 s 154(1) …. 16.76, 20.6 s 154(1)(a) …. 17.11

s 155 …. 16.95, 20.26, 22.10, 25.56 s 156 …. 16.95, 22.10 s 156(1) …. 17.11 s 156(1)(b) …. 22.10 s 156(3) …. 17.11 s 157 …. 25.131 s 157(1) …. 25.56, 25.59 s 157(3) …. 25.62 s 157(4)(a) …. 25.62 s 157(4)(b) …. 25.62 s 157(5) …. 17.11, 25.63 s 157(6) …. 25.64 s 157(7) …. 25.64 s 157(8) …. 25.66 s 157(9) …. 25.66 s 159 …. 18.8 s 164D(6) …. 21.4 ss 164G–164L …. 18.11, 18.12 s 164H(1)(c) …. 25.57 s 164H(2) …. 25.57 s 164K …. 25.60, 25.67 s 164M …. 25.131 s 164N …. 16.95, 20.26 s 164O …. 16.95 s 164P …. 22.10, 22.22 s 164Q …. 20.21, 22.22 s 164R …. 17.11 s 164R(1) …. 16.95

s 164R(2) …. 16.95 s 169(1)(b) …. 22.10 s 169(1)(c) …. 22.10 s 169B …. 18.28, 19.5 s 169C …. 19.15, 19.17, 19.20 s 169C(3) …. 19.23, 20.16 s 169C(3)(e) …. 20.16 s 169C(3)(f) …. 20.16 s 169C(4) …. 20.3 s 169C(5) …. 20.3 s 169C(6) …. 20.6 s 169C(7) …. 21.13 s 169D(6) …. 20.7 s 169D(4) …. 20.21 s 169E(4) …. 22.10 s 169F …. 19.15 s 169F(1) …. 25.61 s 169F(3) …. 25.61 s 169F(4) …. 25.62, 25.68 s 169F(5) …. 25.68 s 169F(6) …. 25.68 s 169F(7) …. 25.68 s 169F(8) …. 25.68 s 169H …. 22.10 s 169I(1) …. 20.26 s 169I(2) …. 20.26 s 169I(3) …. 20.26 s 169I(4) …. 20.26 s 169K …. 22.22

s 211(1) …. 16.96, 20.32, 22.30 s 211(2) …. 16.96, 20.32, 22.30 s 211(3) …. 16.96 s 211(5) …. 16.96 s 226 …. 21.11, 21.12 s 226(1)(a) …. 25.69 s 226(1)(b) …. 25.69 s 226(2) …. 25.69 s 226(3) …. 25.69 s 226(4) …. 25.69 s 233 …. 21.17, 21.28 Sch 1, Pt 2, cl 5(1) …. 16.95 Sch 3 …. 21.17 Sch 3, item 14 …. 21.28 Sch 3A …. 21.11 Sch 3A, cl 4 …. 25.70 Sch 3A, cl 6 …. 25.70 Sch 3A, cl 6(e) …. 25.70 Sch 3A, cl 6(f) …. 25.70 Sch 3A, cl 7 …. 25.71 Sch 3A, Pt 3 …. 25.70 Sch 3A, Pt 4 …. 25.70 Natural Resources Management (Commercial Forests) Amendment Act 2011 …. 16.11, 16.110, 18.28, 19.5 Natural Resources Management (Commercial Forests) Amendment Act (Commencement) Proclamation 2013 …. 16.110 Natural Resources Management (Financial Provisions) Regulations 2005

Pt 2 …. 21.29 Pt 3 …. 21.17 Sch 4 …. 25.62 Natural Resource Management Regulations 2005 …. 11.8 Natural Resources Management (Water Resources and Other Matters) Amendment Act 2007 …. 21.11, 25.54 s 18 …. 16.11 Renmark Irrigation Trust Act 2009 …. 25.54 River Murray Act 2003 …. 16.94, 20.3 s (2)(a)(iii) …. 16.94 s 6(1)(a) …. 16.94 s 7(2)(a) …. 16.94 s 7(3)(a) …. 16.94 s 7(4)(a) …. 16.94 River Murray Waters Act 1935 …. 9.8 s 22(1) …. 9.8 Statutes Amendment (Boards and Committees — Abolition and Reform) Act 2015 s 152 …. 6.8 Water (Commonwealth Powers) Act 2008 …. 3.20 Water Corporation Act 1994 …. 25.64 Water Industry Act 2012 …. 6.25 Pt 4 …. 6.25 Pt 9A …. 6.25 s 35 …. 6.25 s 86C …. 6.25 Water Industry (Third Party Access) Amendment Act 2015 …. 6.25 Water Resources Act 1976 …. 24.40

Water Resources Act 1990 …. 9.8 Water Resources Act 1997 …. 3.9, 20.9, 20.24, 22.25 Pt 7 …. 14.14 s 3 …. 8.11 s 36 …. 20.26

Tasmania Acts Interpretation Act 1931 s 8A …. 4.1 Commercial Arbitration Act 1986 …. 22.30 Competition Policy Reform (Tasmania) Act 1996 …. 21.28 s 4 …. 6.26 s 5 …. 6.26 Cooperatives Act 1999 …. 6.26 Economic Regulator Act 2009 …. 6.26 Environmental Management Pollution and Control Act 1994 …. 25.83 Government Business Enterprises Act 1995 Sch 1 …. 6.26 Hydro-Electric Commission Act 1929 …. 9.10 s 49(1) …. 9.10 s 49(2) …. 9.10 s 49(3) …. 9.10 s 49(4) …. 9.10 Irrigation Clauses Act 1973 …. 6.26, 25.78, 25.82 s 23 …. 25.78 s 23A …. 25.83, 25.86 s 75(1) …. 25.78 Local Government Act 1906

s 209 …. 9.10 Water Act 1957 …. 9.10, 24.40 Water and Sewerage Industry Act 2008 Pt 4 …. 6.26 s 3 …. 6.26 s 30 …. 6.26 s 31 …. 6.26 ss 63–68A …. 6.26 Water and Sewerage Corporation Act 2012 …. 6.26 ss 5–7 …. 6.26 Waterworks Clauses Act 1952 …. 6.26 Water Legislation Amendment Act 2008 …. 18.14, 22.11 s 3 …. 22.11 s 5 …. 1.36 s 7 …. 1.36 s 94(2)(a) …. 22.11 Water Management Act 1999 …. 1.36, 3.9, 6.4, 6.26, 9.10, 9.14, 15.2, 15.38, 15.44, 15.69, 15.77, 15.85, 16.13, 16.58, 16.72, 17.15, 18.14, 18.15, 19.6, 20.10, 20.21, 20.27, 21.4, 21.18, 22.11, 22.31, 22.35, 25.2, 25.74, 25.84 Pt 2, Div 2 …. 25.87 Pt 4 …. 14.14 Pt 6 …. 17.15, 25.79 Pt 6, Div 1 …. 16.72 Pt 6, Div 2 …. 16.72 Pt 6, Div 4 …. 18.14, 25.79 Pt 6, Div 6 …. 18.14 Pt 7 …. 17.15, 18.14 Pt 8 …. 18.14, 25.78

Pt 9 …. 6.26 Pt 13, Div 2 …. 25.87 Pt 14A …. 22.11 s 3 …. 6.26, 15.44, 16.13, 16.55 s 2(1) …. 25.86 s 3(1) …. 1.36 s 6 …. 4.2, 4.5, 4.8, 20.3, 25.83, 25.85 s 6(1)(d) …. 4.14 s 6(1)(e) …. 4.14 s 6(1)(f) …. 4.14 s 6(2) …. 4.3, 4.23 s 7(1) …. 10.5 s 7(2) …. 9.10, 9.17 s 9 …. 6.11, 6.19 s 10 …. 6.19, 15.38 s 12(2) …. 25.87 s 12(3) …. 25.87 s 12(4) …. 25.87 s 12(5) …. 25.87 s 12(6) …. 25.87 s 12(7) …. 25.87 s 12A …. 19.17, 25.83 s 12A(a) …. 25.80 s 12A(b) …. 25.80 s 13(1) …. 15.17 s 14 …. 15.69 s 14(1) …. 15.30 s 14(2) …. 16.13 s 14(2)(c) …. 16.101

s 14(3) …. 16.13 s 15 …. 16.14, 16.55 s 15(a) …. 16.101 s 15(b) …. 16.101 s 16(1) …. 16.101 s 16(2) …. 16.101 s 17 …. 16.14 s 18 …. 15.38, 15.44, 16.55 s 20 …. 15.38 s 20(2) …. 15.38, 15.44 s 21 …. 16.55, 16.101 s 21(3) …. 16.55 s 22 …. 16.55, 16.101, 22.30 s 22B(5)(c) …. 22.35 s 23 …. 15.44 s 23A(1) …. 25.86 s 24 …. 15.44 s 25 …. 15.44 s 26 …. 15.44 s 27 …. 15.44 s 27A …. 15.44, 15.59 s 27B …. 15.59 s 28 …. 15.56 s 29 …. 15.60, 17.15 s 30 …. 15.60 s 31 …. 17.15 s 33 …. 15.60 s 34(1) …. 15.69, 15.77

s 34(1)–(2) …. 15.85 s 34(1A) …. 15.69, 15.77 s 34(2) …. 15.77 s 34(3) …. 15.85 s 34(4) …. 15.85 s 34(5) …. 15.85 s 35 …. 15.85 s 36 …. 17.15, 22.21 s 36(2) …. 20.6 s 44 …. 6.19 s 45 …. 22.35 s 48 …. 19.6, 20.27, 25.75 s 48(1) …. 11.3, 11.5, 11.8, 16.55 s 48(2) …. 11.5, 16.55 s 48(2)(a) …. 11.3, 11.8, 19.6 s 48(2)(b) …. 11.3, 11.15 s 48(4) …. 11.3, 11.8, 11.12, 16.55 s 48(4)(a) …. 11.8 s 48(4A) …. 11.3, 11.10, 16.55 s 48(5) …. 16.55 s 50 …. 16.55, 16.58, 19.6, 25.75 s 51 …. 19.6 s 54 …. 10.11, 18.14 s 54(1) …. 19.6, 25.74 s 54(2) …. 19.6 s 54(2)(c) …. 19.6 s 54(2)(d) …. 19.6 s 54(2)(e) …. 19.6 s 54(4) …. 25.74, 25.80

s 55(a) …. 25.74 s 55(b) …. 25.74 s 56 …. 18.14, 21.12, 21.18 s 56(1)(b) …. 21.4, 25.77 s 56(1)(c) …. 21.4 s 56(1)(da) …. 18.14 s 56(1)(e) …. 22.12 s 57 …. 21.5, 25.74 s 57(1) …. 18.14 s 57(2) …. 18.14 s 58(1) …. 18.14 s 58(1)(a) …. 21.13 s 58(2) …. 18.14 s 59 …. 18.14, 21.4 s 60 …. 18.14, 22.25, 22.35, 25.74 s 61(1) …. 25.88 s 61(3) …. 25.88 s 61(4) …. 25.88 s 61(5) …. 25.88 s 61(8) …. 25.88 s 62 …. 19.17, 25.74, 25.80 ss 62–64 …. 19.15 s 62(b) …. 20.21 s 63 …. 20.3, 20.32 s 63(1) …. 20.15 s 64 …. 20.32 s 64(a) …. 20.10 s 64(b) …. 20.14

s 64(c) …. 20.16 s 65 …. 19.19, 19.20 s 65(2) …. 19.20 ss 67–68 …. 19.23 s 68 …. 19.23 s 69 …. 16.101 s 69(2)(c) …. 22.12 s 69(2)(d) …. 22.12 s 69(2)(e) …. 22.12 s 69(2)(f)–(g)) …. 22.12 s 69(g) …. 25.80 s 77 …. 25.80 s 78 …. 15.44 s 80 …. 18.14, 21.5 s 80(1) …. 25.74 s 80(2) …. 25.74 s 81 …. 19.15, 20.27 s 83 …. 18.14, 21.4 s 84(1) …. 25.77 s 84(2) …. 20.10 s 85(2)–(3) …. 20.21 s 88 …. 16.102, 18.14, 22.12 s 89 …. 22.30 s 91 …. 22.11 ss 91–94 …. 18.14, 22.11 s 92 …. 22.11, 22.35 s 92(4) …. 22.11 s 95 …. 19.15 s 95(1) …. 25.80

s 95(1)(b) …. 25.77 s 95(3) …. 25.80 s 95(4) …. 25.80 s 97 …. 25.83 s 97A …. 25.83 s 98(1) …. 25.83 s 98(2) …. 25.83 s 99(1) …. 25.83 s 99(2) …. 25.83 s 101(2)(a) …. 25.83 s 103(1) …. 25.80 s 103(3) …. 25.80, 25.84 s 101(3)(a) …. 25.83 s 103(4) …. 25.84 s 103(5A) …. 25.84 s 103(6) …. 25.80 s 105(a) …. 25.80 s 105(b) …. 25.80 s 106 …. 22.22 s 106(7) …. 22.22, 25.80 s 109 …. 25.76, 25.80 s 110 …. 25.76 s 114 …. 25.85 s 115 …. 25.76, 25.80 s 118 …. 22.31 s 120 …. 25.81 s 120(1) …. 25.81 s 120(1)(b) …. 25.81

s 120(2) …. 25.85 s 120(3) …. 25.81, 25.85 s 121 …. 25.76, 25.81 s 121(1)(a) …. 25.81 s 121(3) …. 25.81 s 121(6) …. 25.81 s 124A …. 11.10 s 136A …. 18.10 s 166 …. 6.26 s 167 …. 6.19 s 227 …. 21.18 ss 228–236 …. 21.18 s 280F …. 22.31 s 296 …. 22.31 s 303(b) …. 21.18 s 303(c) …. 21.18 s 304 …. 21.28 Sch 1 …. 4.2, 4.8 Water Management Amendment (Dam Works) Act 2015 …. 18.14

Victoria Catchment and Land Protection Act 1994 …. 6.7, 6.10, 6.21, 16.109 Pt 2, Div 1 …. 6.10 Pt 2, Div 1A …. 6.10 s 4(a)(ii) …. 6.10 s 9(a)(ii) …. 6.10 s 9(b) …. 6.10

Constitution Act 1975 …. 5.20 Pt VII …. 6.27 s 16 …. 5.11 s 18(2) …. 5.19 Constitutional Powers (Coastal Waters) Act 1980 …. 5.9 Constitution Statute 1855 cl II …. 5.6 Constitution (Water Authorities) Act 2003 …. 5.19 Country Fire Authority Act 1958 s 30 …. 11.13 Delivery of Water Services, inserted by the Constitution (Water Authorities) Act 2003 …. 6.27 Drainage of Land Act 1958 …. 24.37 Essential Services Commission Act 2001 …. 6.27, 21.28 Pt 3 …. 6.27 Pt 3A …. 6.27 Ground Water Act 1969 …. 24.38, 24.40 s 47 …. 9.14 Groundwater (Border Agreement) Act 1985 …. 7.33 s 5 …. 7.33 s 5A …. 7.33 Sch 2 …. 7.33 Interpretation of Legislation Act 1984 s 35(a) …. 4.1 Irrigation Act 1886 …. 9.4, 9.5, 9.16, 24.40, 24.41 s 4 …. 9.4 Murray-Darling Basin Act 1993 …. 3.4, 7.5, 7.6, 7.16, 7.24 Planning and Environment Act 1997 …. 16.109 Snowy Hydro Corporatisation Act 1997 …. 7.27

s 8 …. 7.27 Snowy Hydro Corporatisation (Parliamentary Approval) Act 2006 …. 7.27 Snowy Mountains Hydroelectric Agreements Act 1958 …. 3.6, 7.25 Traditional Owner Settlement Act 2010 …. 13.30 s 8A …. 19.7 s 85(1) …. 13.30 Water Act 1905 …. 24.40, 24.44 Water Act 1958 …. 9.6, 24.40 s 4 …. 9.6 s 326 …. 9.3 Water Act 1989 …. 1.37, 3.9, 4.43, 4.49, 6.7, 6.10, 6.27, 7.30, 10.4, 14.14, 15.2, 15.8, 15.24, 15.31, 15.59, 15.70, 15.86, 16.16, 16.69, 16.77, 16.97, 17.16, 18.5, 18.6, 18.8, 18.12, 18.18, 18.22, 18.24, 19.7, 19.13, 19.19, 19.23, 19.30, 20.21, 20.28, 20.32, 21.4, 21.5, 21.12, 21.19, 22.13, 22.14, 22.21, 22.22, 22.32, 24.64, 25.2, 25.89, 25.95, 25.98, 25.104, 25.105 Pt 2 …. 22.13 Pt 3, Div 1B …. 15.8, 16.17 Pt 3, Div 1C …. 15.8, 15.70 Pt 3, Div 3 …. 14.14, 16.15 Pt 3A, Div 13 …. 25.100 Pt 3AA, Div 1A …. 16.15 Pt 4 …. 19.29 Pt 4, Div 1 …. 14.14, 16.15, 16.17, 25.8 Pt 4, Div 1A …. 16.15 Pt 4 Div 2 …. 18.20 Pt 4, Div 3 …. 14.14 Pt 4B …. 18.6

Pt 5A …. 21.12, 25.103 Pt 6 …. 6.7 Pts 6–10 …. 6.27 Pts 6A–6C …. 6.7 Pt 7 …. 6.7 Pts 8–11 …. 6.7 Pt 11, s 220–231 …. 18.24 Pt 14A …. 6.8, 6.13 Div 1 …. 6.7 Div 4 …. 22.13 s 1 …. 4.5, 10.4, 20.3 s 1(c) …. 4.14 s 1(d) …. 4.6 s 1(e) …. 4.14 s 3 …. 6.7, 6.10, 16.69 s 3(1) …. 1.37, 18.5, 18.6 s 4A …. 15.24 s 4B …. 15.24, 20.3 s 6 …. 7.20, 7.33 s 6A …. 16.69, 21.5 s 7 …. 9.17 s 7(4) …. 20.3 s 8 …. 16.56 s 8(1) …. 11.9, 16.56, 19.7 s 8(1)(a) …. 11.5 s 8(1)(b) …. 11.3, 11.8 s 8(1)(c) …. 11.3 s 8(1)(d) …. 11.3 s 8(2) …. 16.56

s 8(3) …. 19.7 s 8(3)(c) …. 19.7 s 8(4)(a) …. 19.7 s 8(4)(b) …. 19.7 s 8(4)(c) …. 11.12, 19.7 s 8(5) …. 11.12, 19.7 s 8(5A) …. 19.7 s 8(6) …. 16.56 s 8(6)(d) …. 11.3 s 8(7) …. 10.4 s 8(7)(a) …. 19.7 s 8(7)(e) …. 10.4 s 8A …. 13.31, 16.60 s 9 …. 19.7 s 11 …. 16.57 s 22(1)(a) …. 15.8 s 22(2) …. 1.22, 15.8 s 22(2)(a) …. 1.37 s 22(2)(ga) …. 16.97 s 22(2A) …. 15.8 s 22A …. 12.7, 16.15, 16.17, 16.97 ss 22B–22C …. 15.8 s 22C(1)(e) …. 15.8 s 22C(2)(b) …. 6.10 s 22C(1)(d) …. 16.97 s 22I …. 15.8, 15.70 ss 22K–22T …. 6.10 s 22L …. 15.70, 16.97

s 22M …. 15.8 s 22N …. 15.8 s 22O …. 15.8 s 22P …. 15.70, 16.97 s 22V …. 16.97 s 23 …. 15.8 s 27 …. 11.3 s 27(1) …. 15.19, 15.31 s 27(2) …. 15.31 s 27(4)(a) …. 17.16 s 29 …. 15.19, 15.37 s 29(1) …. 6.18 s 29(2) …. 6.18 s 29(3) …. 6.18 ss 29–32A …. 16.56 s 30 …. 15.31 s 31 …. 6.18, 15.31, 15.45 s 31(2)(b) …. 15.37 s 31(3) …. 15.59 s 32 …. 15.31 s 32A …. 16.15 s 32A(1) …. 16.15 s 32A(2) …. 15.31 s 32A(3) …. 15.31 s 32A(3)(a) …. 15.70 s 32A(3)(b) …. 16.56 s 32A(3)(f) …. 16.56 s 32A(3)(g) …. 16.56, 16.61 s 32A(3)(j) …. 16.56

s 32A(3)(n) …. 16.56 s 32A(5) …. 16.16 s 32A(6) …. 15.56, 15.59 s 32A(6)–(7A) …. 15.19 s 32A(7) …. 15.60 s 32A(7)(a) …. 17.16 s 32A(8)–(10) …. 15.56, 17.16 s 32A(10A) …. 15.45, 17.16 s 32A(11) …. 15.70, 17.16 s 32A(13) …. 17.16, 22.21 s 32B …. 15.70 s 32C …. 15.70 s 32D …. 15.70 s 32F …. 20.32 s 32F(2) …. 16.100, 22.32 s 32G …. 15.78, 15.86 s 32G(3) …. 15.86 s 32H …. 15.60 s 33 …. 16.97, 22.13 s 33AC …. 16.77 s 33AD …. 21.12 s 33AE–33AI …. 25.131 s 33AJ …. 21.28 s 33AX …. 25.100 s 33AZ(1)(a) …. 16.100 ss 33AA–33ABA. …. 22.22 s 33AAA …. 22.13 s 33AAB …. 16.97, 22.13

s 33AAC …. 22.13 ss 33–33AAC …. 16.77 s 33AAD …. 22.13 ss 33–33AAD …. 22.13 s 33DT …. 15.71 s 33DU …. 15.71 ss 33DV–33DZ …. 16.17 s 33DX …. 15.71 s 33DZ …. 15.71 s 33DZA …. 15.71 s 33E …. 10.11 s 33E(1) …. 19.7 s 33E(2)(a) …. 19.7 s 33E(2)(b) …. 19.7 s 33F …. 16.69, 19.15, 25.92 s 33F(1) …. 25.92 s 33F(3) …. 18.11 s 33F(4) …. 25.92 s 33G …. 16.69, 21.19 s 33G(b) …. 21.4 s 33G(c) …. 16.77, 21.4 s 33I …. 20.6 s 33I(2) …. 16.69, 16.97, 17.16, 20.7 s 33I(2)(b) …. 20.7 s 33I(2)(c) …. 20.7 s 33J …. 19.30, 20.3 s 33J(1)(a) …. 19.30 s 33J(1)(b) …. 20.32 s 33L …. 19.15, 19.17, 19.30

s 33N …. 19.26 s 33O …. 19.23 s 33P …. 20.21, 25.92 s 33Q …. 16.100, 22.14 s 33R …. 22.14 s 33S …. 19.15, 25.93 s 33S(1) …. 25.92 s 33S(2)(a) …. 25.92 s 33S(2)(b) …. 25.92 s 33S(3) …. 25.92, 25.93 s 33T …. 25.92 s 33T(2) …. 25.92 s 33T(4) …. 25.92 s 33TA …. 25.92 s 33U(1) …. 25.93, 25.93 s 33U(1A) …. 25.93 s 33U(2) …. 25.94 s 33U(3) …. 25.93 s 33U(4) …. 25.94 s 33U(5) …. 25.93 s 33V(1) …. 25.94 s 33W(1) …. 25.93, 25.100 s 33W (1)(a)–(c) …. 25.92 s 33W(1)(d)–(e) …. 25.92 s 33W(1)(e) …. 25.94 s 33W(2) …. 25.92, 25.100 s 33X …. 19.15, 25.100 s 33X(3)(a) …. 25.100

s 33X(3)(b) …. 25.100 s 33X(4) …. 25.100 s 34 …. 15.2, 18.23, 19.15 s 36 …. 19.15, 19.17 s 36(1) …. 18.23 s 36(2) …. 15.2 s 36(2)(c) …. 21.28 s 36(3) …. 19.19, 19.20 s 37 …. 19.11 s 38 …. 19.19, 19.20 s 39 …. 19.20 s 40 …. 16.97, 20.3 s 40(1) …. 25.101, 25.102 s 40(1)(b)–(m) …. 25.99 s 40(1)(ba) …. 16.17 s 40(1)(d)(i) …. 20.32 s 40(1)(m) …. 20.32 s 40(2) …. 17.16, 20.6 s 40(2)(ba) …. 16.17 s 41 …. 19.26 s 42 …. 15.80, 15.81, 19.23 s 42(1) …. 15.80 s 42(2) …. 16.97, 20.14 s 43 …. 14.25, 16.77, 18.23, 21.4 s 43(d) …. 25.8 s 43(f) …. 21.12 s 43(h) …. 15.71 ss 44A–44B …. 18.23 s 45 …. 15.81, 22.14

s 45(1) …. 15.80, 15.81 s 45(1)(a) …. 15.81 s 45(3) …. 15.80 s 45(4) …. 15.80 s 45(5) …. 15.80 s 45(6) …. 15.80 s 45(7) …. 15.80 s 46 …. 25.8, 25.97 ss 46–46G …. 18.23 s 46(2)(a) …. 25.101 s 46A …. 25.97 s 46C …. 25.101 s 46D …. 25.97 s 46E(2) …. 25.101 s 46E(3)(a)(i)–(ii) …. 25.101 s 46E(3)(b) …. 25.101 s 46E(5) …. 25.101 s 46F(1) …. 25.101 s 46F(2) …. 25.101 s 46G …. 25.101 s 47A …. 19.7 ss 47C–47CB …. 25.101 s 47D …. 20.21 s 47E …. 25.101 s 48B …. 18.16, 18.18 ss 48C–48G …. 16.17 s 48I …. 18.18 s 48J …. 15.71

s 48K …. 22.14 s 48K(1)–(2) …. 18.18 s 48KA …. 25.97 s 48L …. 16.17 ss 48L–48OD …. 25.16 ss 48L–48OE …. 18.18 ss 48L–48N …. 25.131 s 48L(1) …. 25.97 s 48L(1A) …. 25.97 s 48L(2)(a) …. 25.102 s 48L(2)(b) …. 25.102 s 48M …. 16.17, 25.97 s 48N …. 25.97 s 48P …. 16.17 ss 48O–48OB …. 25.102 s 48OA …. 25.97 s 48OB(2) …. 18.18 s 48OB(3) …. 25.102 s 48OB(4) …. 25.102 ss 48OE–48OG …. 18.18 s 48OF …. 16.17 s 48P …. 25.102 s 49 …. 19.19, 19.20 s 50 …. 25.99 s 50(3) …. 25.99 s 51 …. 19.13, 19.17, 25.91, 25.99, 25.101, 25.103, 25.131 s 51(1) …. 25.91 s 51(1)(b) …. 18.22 s 51(1)(ba) …. 19.13

s 51(2)(c) …. 21.28 s 51(1A) …. 19.13, 20.28 s 51(1AA) …. 18.22 s 51(1B) …. 20.28 s 51A …. 18.22 s 51AB(2) …. 25.91 s 51B …. 19.19, 19.20 s 51C …. 19.20 s 52A …. 16.77, 18.22 s 53 …. 20.3, 25.99 s 53(1) …. 25.99 s 53(1)(a) …. 25.99 s 53(1)(ab) …. 25.99 s 53(1)(b) …. 20.32 s 53(2) …. 20.6 s 53(2)(e) …. 17.16 s 54 …. 19.26 s 55 …. 16.97, 19.23 s 56 …. 21.12 s 56(xii) …. 15.71 s 56(1) …. 14.25 s 56(1)(a)(iii) …. 16.77, 18.22, 21.4 s 56(1)(a)(iv) …. 21.28 s 56(1)(a)(x) …. 16.100, 20.32, 22.32 s 56(1)(a)(xii) …. 21.8 s 56(2) …. 20.32 s 56(3) …. 21.5, 25.91 s 56(5) …. 21.5

s 56(6) …. 21.5 s 57 …. 20.21 s 58 …. 21.5, 25.91 s 59 …. 16.100, 22.14 ss 59A–59C …. 22.14 s 60 …. 22.22 s 61A …. 16.100, 18.22 s 62 …. 20.24, 20.28 s 62(1)–(3A) …. 25.91 s 62(2A) …. 25.91 s 62(2AA) …. 25.91 s 62(3) …. 25.99 s 62(3A) …. 25.99 s 62(4) …. 25.99 s 62(5) …. 25.99 s 62(6)(a) …. 25.99 s 62(6)(b) …. 25.99 s 62(8) …. 25.91 s 63(1) …. 19.7 s 63(1A) …. 19.7 s 64AAA …. 25.99 s 64AR …. 25.96 ss 64GA–64GB …. 16.77 s 64GB …. 16.17, 18.23 s 64GB(1) …. 16.17 s 64GB(1)(c) …. 18.18 s 64GB(3) …. 16.17 s 64GB(4)(b) …. 16.17 s 64GB(6) …. 25.93

s 64GB(6)(e) …. 16.17 s 64H–64I …. 25.131 s 64L …. 25.96 s 64O …. 25.96 s 64T(2) …. 6.10 s 64V …. 6.10 s 64Z …. 15.71 s 67 …. 19.7 s 67(1) …. 18.8 s 67(1A) …. 18.8 s 69(3) …. 19.29 s 71(1)(ac) …. 18.8, 18.11, 21.19 s 73A …. 18.12 s 74 …. 18.12 s 78 …. 16.100 s 82 …. 16.100 s 84A …. 21.12 s 84C …. 25.103 s 84C(2)(e) …. 21.12 s 84D(3) …. 21.12 s 84E …. 25.103 s 84I …. 25.92 ss 84I–84N …. 25.103 s 84J(3) …. 25.103 s 84N …. 25.104 s 84Q(2) …. 25.104 s 84Q(3) …. 25.104 ss 84R–84VA …. 25.103

s 84W …. 25.103 s 84W(b)–(e) …. 21.12 s 84X(1) …. 25.105 s 84X(4) …. 25.105 s 84Y …. 25.105 s 84ZA …. 25.105 s 84ZB …. 25.105 s 85(1a) …. 6.27 s 93 …. 6.7 s 94 …. 6.7 s 95 …. 6.7 s 122G …. 6.10 s 122G(2) …. 6.7 s 122H …. 6.7 s 141(1)(a) …. 16.100 s 141(1)(b) …. 16.100 s 141(8) …. 16.100 s 222(1) …. 14.19, 18.24 s 222(1)(b) …. 14.18 s 222(1)(c) …. 18.24 s 222(3) …. 18.24 s 223 …. 18.24 s 224(4) …. 24.64 s 225(3) …. 25.95 s 226 …. 25.95 s 227 …. 18.24 s 228 …. 18.24 s 230 …. 14.18 s 289 …. 10.11

s 289(1) …. 19.7 s 289(4) …. 19.7 s 316 …. 18.10 s 318 …. 6.18, 15.37 s 324(1) …. 21.28 s 324(1)(ag) …. 21.19 s 330 …. 19.23 Sch 1 …. 6.7, 15.81 Sch 12A, cl 1(4) …. 25.104 Sch 12A, cl 2(5) …. 25.104 Sch 12A, cl 3 …. 25.104 Sch 15 …. 19.15 Sch 15, cl 33 …. 25.140 Water Act 2002 …. 20.28 Water Amendment (Entitlements) Act 2010 s 22 …. 19.11 Water Amendment (Governance and Other Reforms) Act 2012 …. 6.27 Water Amendment (Non Water User Limit) Act 2009 …. 12.9, 12.18 Water (Commonwealth Powers) Act 2008 …. 3.20 Water Conservation Act 1881 …. 24.40 Water Conservation Act 1883 …. 24.36 Water Conservation and Distribution Act 1881 …. 9.3 s 48 …. 9.3 Water (Governance) Act 2006 …. 25.2 Water Industry Act 1994 …. 6.27 s 4C(c) …. 6.27 s 4D …. 6.27

s 4E …. 6.27 s 4F …. 6.27 s 4I …. 6.27 Water Irrigation (Farm Dams) Act 2002 …. 20.28 Water (Permanent Transfer of Water Rights) Regulations 1991 s 5 …. 24.64 s 7 …. 24.64 Sch 5 …. 24.64 Water (Resource Management) Act 2005 …. 22.13, 25.2 s 11 …. 15.8 Water (Resource Management) Regulations 2007 reg 30 …. 18.22

Western Australia Commercial Arbitration Act 2012 …. 22.33 Constitution Act 1889 s 2 …. 5.11 Economic Regulation Authority Act 2003 …. 21.28 Pt 5 …. 6.28 s 25 …. 6.28 Fire Brigades Act 1942 s 61 …. 11.13 Interpretation Act 1984 s 18 …. 4.1 Land Administration Act 1997 Pt 9 …. 13.25, 13.26 s 91 …. 19.8 s 267(2)(e) …. 19.8 Mining Act 1978 …. 25.6

Planning and Development Act 2005 …. 4.44 Rights in Water and Irrigation Act 1914 …. 1.38, 4.44, 12.7, 15.2, 16.103, 17.17, 18.26, 19.8, 20.4, 20.21, 20.32, 21.21, 22.15, 22.22, 22.33, 24.3, 24.40, 24.45, 25.2, 25.106 Part III, Div 3D …. 14.14, 15.2 Pt III, Div 3E …. 25.115 s 2 …. 1.38 s 3 …. 1.38, 11.3, 11.8 s 3(1) …. 11.8 s 4 …. 4.5, 24.44 s 4(1) …. 9.7, 13.7 s 4(1)(a) …. 4.6 s 4(1)(b) …. 4.14 s 4(3) …. 4.3, 4.23, 20.3 s 5 …. 11.10, 19.8 s 5A …. 9.14, 9.17 s 5B …. 19.8, 20.25 s 5B(1) …. 19.7 s 5C …. 10.11, 18.26, 19.8, 25.8, 25.107 s 5C(3) …. 25.107 s 9 …. 11.3, 11.8, 11.12, 25.107 s 10 …. 11.3, 11.5, 25.107 s 11 …. 18.26 s 17 …. 18.26 s 20 …. 11.8, 19.8, 20.25, 25.107 s 20(1) …. 11.12 s 20A(4) …. 11.12 s 21 …. 11.5, 11.8, 19.8, 20.25, 24.3, 25.107 s 21(1)(aa) …. 11.15

s 21(1)(c) …. 11.5, 11.12 s 22 …. 19.8 s 25A …. 11.3, 11.6, 25.107 s 25A(2) …. 11.10 s 25A(2)(b) …. 11.15 s 26A …. 11.10 ss 26A–26D …. 18.26 s 26B …. 11.10 s 26D …. 11.10 s 26G …. 22.15 s 26GA …. 11.16 s 26GB …. 22.15 s 26GC …. 11.3 s 26GD …. 22.15 s 26GE …. 22.15 s 26GZF …. 17.17 s 26GZH …. 25.113, 25.115 s 26GZI(1) …. 25.115 s 26GZI(2) …. 25.115 s 26GZI(3) …. 25.115 s 26GZI(4) …. 25.115 s 26GZJ(1)(a)–(g) …. 25.115 s 26GZL …. 25.115 s 26GZM(1) …. 25.115 s 26GZO …. 25.115 s 26GZP …. 25.115 s 26GZQ …. 25.115 s 26GZQ(2)(b) …. 25.115 s 26GZQ(2)(b)(ii) …. 25.115

s 26GZR …. 25.115 s 26GZS …. 25.115 s 26GZT …. 25.115 s 26L(3)(d) …. 25.107 s 27(1) …. 21.28 s 35 …. 10.7 s 36 …. 10.7, 20.32 ss 26GG–26GJ …. 6.39 s 26GK …. 13.32 ss 26GK–26GM …. 6.17 s 26GL …. 13.32 s 26GZE …. 6.8 Sch 1, cl 3 …. 18.26, 19.13, 25.8, 25.107, 25.113 Sch 1, cl 4 …. 19.17 Sch 1, cl 5 …. 19.19 Sch 1, cl 6 …. 19.23 Sch 1, cl 7 …. 19.23, 20.3, 21.21 Sch 1, cl 7(2) …. 17.17, 20.3, 20.4, 20.13, 25.113, 25.114 Sch 1, cl 7(3) …. 20.16 Sch 1, cl 7(4) …. 20.16 Sch 1, cl 8 …. 20.14 Sch 1, cl 9 …. 19.24 Sch 1, cl 10 …. 19.23 Sch 1, cl 12 …. 18.26, 21.5 Sch 1, cl 13 …. 25.110 Sch 1, cl 14(1)(c) …. 25.110 Sch 1, cl 14(1)(e) …. 25.110, 25.113 Sch 1, cl 14(2) …. 25.110

Sch 1, cl 15 …. 18.26, 21.4, 21.12, 21.21, 25.113 Sch 1, cl 17 …. 20.32 Sch 1, cl 19 …. 25.110 Sch 1, cl 20 …. 25.110 Sch 1, cl 22 …. 18.26, 21.5 Sch 1, cl 22(2) …. 17.17 Sch 1, cl 23 …. 25.110 Sch 1, cl 24 …. 21.21, 22.15 Sch 1, cl 24(2) …. 17.17, 25.112 Sch 1, cl 24(2)(b) …. 16.103 Sch 1, cl 24(2)(d) …. 16.103, 22.21 Sch 1, cl 25 …. 22.22 Sch 1, cl 25(2) …. 17.17, 25.112 Sch 1, cl 25(2)(a) …. 16.103 Sch 1, cl 28 …. 25.108 Sch 1, cl 29(1)(a) …. 25.107, 25.110 Sch 1, cl 29(1)(b) …. 25.108, 25.110 Sch 1, cl 29(2) …. 25.110 Sch 1, cl 29(3) …. 25.110 Sch 1, cl 29A …. 25.110 Sch 1, cl 29A(2) …. 25.110 Sch 1, cl 30 …. 25.111 Sch 1, cl 30(1) …. 25.109 Sch 1, cl 30(3)(a) …. 25.111 Sch 1, cl 30(3)(b) …. 25.114 Sch 1, cl 30(3)(c) …. 25.111 Sch 1, cl 30(3)(d) …. 25.111 Sch 1, cl 31(1) …. 25.107, 25.113 Sch 1, cl 31(2) …. 25.113

Sch 1, cl 31(3) …. 25.113 Sch 1, cl 31(5) …. 25.113 Sch 1, cl 31(6) …. 25.113 Sch 1, cl 32 …. 25.110 Sch 1, cl 32(1) …. 25.113 Sch 1, cl 33 …. 25.113 Sch 1, cl 34 …. 25.107, 25.113, 25.115 Sch 1, cl 36(a) …. 25.113 Sch 1, cl 36(c) …. 25.113 Sch 1, cl 38 …. 25.112 Sch 1, cl 38(1)(b) …. 25.112 Sch 1, cl 38(1)(c) …. 25.112 Sch 1, cl 38(1)(d) …. 25.112 Sch 1, cl 39 …. 22.33 Sch 1, cl 39(1)(c) …. 16.103 Sch 1, cl 39(5) …. 16.103 Sch 1, cl 40 …. 20.21 Sch 1, cl 41 …. 20.21 Sch 1, cl 46 …. 21.21 Sch 1, Appendix …. 21.4, 21.12, 21.21 Rights in Water and Irrigation Amendment Act 2000 …. 3.9, 25.2 Pt 3 …. 25.113 reg 23 …. 19.20 Water Agencies (Powers) Act 1984 Pt II …. 6.6 Pt IIA …. 6.8 Pt VII …. 13.25, 13.26 Div 2 …. 6.6

s 109 …. 6.17 s 134 …. 6.17 Water and Rivers Commission Act 1995 s 10(2) …. 14.1 Sch 1(15) …. 6.17 Water Corporations Act 1995 s 4 …. 6.28 s 27 …. 6.28 Water Resources Legislation (Amendment) Act 2007 Pt 7 …. 6.8 s 207 …. 6.28 Water Services Act 2012 ss 5–7 …. 6.28 s 5(2) …. 6.28 s 8 …. 6.28 s 9 …. 6.28 s 26 …. 6.28 s 27 …. 6.28 s 123 …. 6.28 s 207 …. 6.28

Canada Water Privileges Act 1892 …. 9.29

Imperial Australian Constitutions Act 1850 s 14 …. 5.11 Colonial Laws Validity Act 1865 s 5 …. 5.18

International Convention on Biological Diversity 1992 (Biodiversity Convention) …. 5.72 Convention on the Conservation of Migratory Species of Wild Animals 1979 (Bonn Convention) …. 5.72 Ramsar Convention on Wetlands of International Importance 1971 …. 5.46, 5.72 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 1994 (Desertification Convention) …. 5.72 United Nations Framework Convention on Climate Change 1992 (Climate Change Convention) …. 5.72 World Heritage Convention …. 5.46

New Zealand Resource Management Act 1991 …. 20.19, 20.31

United States United States Constitution Art 1, s VIII (3) …. 5.28

CONTENTS Publisher’s Note Preface Table of Cases Table of Statutes

Part 1

Australian Water Resources and Water Access Policy

Chapter 1

Defining Water Resources in Australia The nature and scarcity of the resources The hydrological cycle in Australia Human development of water resources and the effects Existing use of water resources Water quality issues Potential impacts of climate change Defining water resources in law Traditional classification of terrestrial water resources Statutory definitions of each jurisdiction New South Wales Queensland South Australia Tasmania Victoria Western Australia Australian Capital Territory Northern Territory Commonwealth Summary of statutory definitions

Chapter 2

Historical Development of Water Access Rights and Legal Models for Sharing Water Resources Introduction Concepts of property and Anglo-American historical models of water access rights Water resources as common property Rights of access to water as a species of property The riparian doctrine The prior appropriation doctrine Significance of the common law models of rights Environmental sustainability The absence of a common law concept in Australia The legislative definition of sustainability

Chapter 3

National Water Law Reform Policy Evolving perceptions of the constitutional reality Evolving concerns of the Commonwealth The 1994 CoAG Water Reform Framework The 2004 Intergovernmental Agreement on a National Water Initiative The 2007 National Plan for Water Security The 2008 Agreement on Murray-Darling Basin Reform

Chapter 4

Objectives and Principles of Water Resources Law Content of objectives and principles Sustainability Social and economic benefits Water resource management principles Nature of the implementing duty The terms of the statutory duties The duty to have regard to relevant considerations The duty to give effect to the objectives and principles Subsidiary instruments to define objectives The precautionary principle in water resources law

Part 2

The Constitutional and Administrative Framework of Water Resources Management

Chapter 5

The Constitutional Framework for Water Resources

Introduction State authority ‘Ownership’ powers of the states Legislative powers of the states Plenary legislative power Limits under the Commonwealth Constitution Other limits on legislative powers Extraterritorial competence Entrenchment Commonwealth authority Interstate and overseas trade and commerce power Section 100 restriction Corporations power External affairs power Defence Implied nationhood power Financial powers Acquisition of property on just terms Commonwealth places Commonwealth capacity to override state authority The legislative powers of the territories Cooperative federalism An overview Water Act 2007 (Cth) — An analysis of the exercise of Commonwealth power Conclusion

Chapter 6

The Administrative Framework of Water Resources Management State and territory institutions Water resource management Regulatory agencies Consultative and advisory bodies: state Consultative and advisory bodies: regional and local Water services regulation New South Wales Queensland South Australia

Tasmania Victoria Western Australia Northern Territory Australian Capital Territory Commonwealth institutions The National Water Commission The Water Act 2007 (Cth): new institutions and institutional roles The Commonwealth Environmental Water Holder Engagement of other Commonwealth agencies Summary of the institutional role of the Commonwealth Challenges to governmental decision making Judicial review Merits review of administrative decisions Conclusion

Chapter 7

Interstate Arrangements Riparian or common law rights of the states The Murray-Darling Basin Agreements: 1914, 1992, 2008 Early history: the 1914 Agreement The Murray-Darling Basin Agreement 1992 The institutions Implementation and enforcement of the 1992 MDB Agreement Critique of the 1992 MDB Agreement The Murray-Darling Basin Agreement 2008 The Ministerial Council The Basin Officials Committee The Murray-Darling Basin Authority The Basin Community Committee Amendment of the Agreement Enforcement of the Agreement The Snowy Mountains Scheme Other interstate arrangements The New South Wales–Queensland Border Rivers Agreement The South Australia–Victoria Groundwater Border Agreement The Ord River Irrigation Scheme The Lake Eyre Basin Intergovernmental Agreement The Great Artesian Basin

Canberra water supply

Part 3

The Nature of Water Access Rights

Chapter 8

Common Law Rights to Water Surface water in defined channels: the right of natural flow incidental to riparian land ownership Rejected absolute ownership The general principle: a correlative right to the natural flow Foundation of riparian rights in ownership of riparian land Watercourse A natural watercourse Seasonal flows Artificial channels Underground flows Right to take and use Right to natural quality of water: free from pollution Right to dam, divert and drain Dam Diversion Drain Acquisition by grant or prescription Actionable without proof of damage Ground water — non-regulation ‘Rule of capture’: right to take and use No cause of action against appropriation Right to natural quality of water: free from pollution Rejection of absolute ownership Right in the surface landowner Diffused surface water ‘Rule of capture’: right to take and use Right to natural quality of water: free from pollution No right to drain or unobstructed flow Summation of common law rights Rejection of absolute ownership Distinct common law regimes Water flowing in a known and defined channel: generally surface water

Water not flowing in a known and defined channel: diffused surface water and underground water The problems presented by and the implications of the common law regimes for modern Australian society Failure to treat water as a unified resource Transfer barriers No security The amount of water and value of rights not measurable A lesser proprietary status Incompatible with development of industry, agriculture and infrastructure Waste Environmental sustainability and the natural flow Right to be free from pollution Recognition of problems and refusal to accept riparian doctrine in the United States Legislative goals and structures to overcome common law deficiencies

Chapter 9

State Declarations of the Vesting of Rights to Property, Use, Flow and Control of Water History: the introduction of state vesting clauses Surface water Ground water Current provisions: foundation for water management Declarations of state sovereignty and control of state ownership The nature of water as a subject of control, not absolute ownership: imperium, not dominium The historically uncertain extinguishment and divestment of private rights The need for clear and plain language to extinguish private rights Conflict in state Supreme Court decisions The High Court and extinguishment and divestment of private rights United States and Canada State sovereignty and control, not ownership: divestment of private rights of use

Chapter 10

The Express Abolition and Statutory Displacement of Common Law Rights to Water The problems of the common law

The effect of legislative declarations vesting all rights to control use and flow in the Crown The express abolition and reservation of common law rights Express abolition Express reservation Displacement of common law rights to take by imposition of licence or other statutory authority Abolition or displacement of common law right to take in all jurisdictions, but retention of common law rights to flow and quality in some

Chapter 11

Landholder Rights: Rights Exercisable without a Licence by Landholders and Others The common law problems Rights exercisable without a licence Who might exercise rights? At common law Owner and occupier: in all jurisdictions Rights to domestic and stock uses in others: ‘public’ rights in those with rights of access Permitted uses Domestic purposes and watering stock Limitations on use applied to both water flowing in a known and defined channel and ground water Lesser controls on ground water use: Queensland, Western Australia and Tasmania No right to ground water use without a licence in Australian Capital Territory Generally no limits on use of diffused surface water unless prescribed Use on the land Emergencies and firefighting A quantitative limit in Western Australia where supply augmented Common law problems partially addressed

Chapter 12

Contemporary Access Entitlements The reform process and contemporary access entitlements Problems of the traditional water privileges system The reform process and contemporary ‘unbundled’ water entitlements The elements of a proprietary water access entitlement National overview

The requirement for a water entitlement, licence, water share or other authorisation to take water Overriding place of the water plan: allocation of water to entitlement must be consistent with the water plan Nature of access entitlements, separation from land title and ‘unbundling’ Duration Specification of entitlement and conditions Quantity of entitlement specified Conditions not the subject of discretionary change Uncertainty arising from lack of clarity as to risk in the event of shortage of water The Register and declaration of proprietary nature The Mining and Petroleum Sectors and NWI cl 34 Conclusion — introduction to the proprietary nature of access entitlements

Chapter 13

Native Title and Indigenous Access to Water Burden of proof of native title is extremely onerous The frozen content of native title right to water The widespread extinguishment of native title Extinguishment of native title pre-1975 Water resources legislation Inconsistent grants Crown reservation Water control works Lakes and dams Extinguishment 1975–1996 under the Native Title Act 1993 (Cth) Water resources legislation Grants of water licences and rights Crown reservations and public works Deemed extinguishment pre-1996 Compensation Confirmation of Crown rights to water Future water development: validation of future acts Water resources legislation Grant of water leases, licences, permits or authorities Crown reservations and public works Crown reservations

Public works Compulsory acquisition No protection of habitat under native title under s 211 Indigenous land use agreements The National Water Initiative and Indigenous access Native title Planning processes Indigenous access Native title to water of limited significance

Part 4

Water Resources Planning

Chapter 14

An Overview of the History, Purposes and Effects of Water Resources Planning The evolution of water resources planning The era of perceived abundance Perceptions of water scarcity Development of statutory planning Defining sustainability Water access entitlements and local area management Whole of catchment management Foundation for water property rights regime The need for legislative support for planning National water policy principles on planning

Chapter 15

The Water Resources Planning System Introduction Overview State plans, water resources assessment and water information State plans: New South Wales and South Australia Water resources assessment The national water information regime State and territory systems water allocation planning When to make a plan Discretionary powers to decide to make a plan Duties to make plans Area and water resources subject to a plan Making a plan

Who prepares the draft plan? Public notice and consultation on a draft plan Common law procedural fairness Approval of a plan Who approves the plan? The process of approval Monitoring, reviewing and amending a plan Duties to monitor implementation of a plan Duration and review of plans Powers and process for amending a plan The Commonwealth’s System: from the Cap to the Basin Plan Making and amending the Cap — Schedule F to the Murray-Darling Basin Agreement 1992 The Basin Plan and water resource plans under the Water Act 2007 (Cth) When to make the Basin Plan or a water resource plan? Area and water resources subject to Basin Plan and water resource plans Procedure for making the Basin Plan and water resource plans Adoption of Basin Plan and accreditation/adoption of a water resource plan Monitoring, reviewing and amending the Basin Plan and water resource plans Adjustment in the transition to the Basin Plan

Chapter 16

The Content of a Plan Overview of state water allocation plans and their mandatory/optional content New South Wales Queensland South Australia Tasmania Victoria Australian Capital Territory Key issues for state planning Environmental water allocations New South Wales Queensland South Australia

Tasmania Victoria Western Australia Australian Capital Territory Basic rights, including native title Basic rights to take and use water for domestic and stock watering purposes Native title rights to take and use water Allocating water to ‘consumptive use’ under access entitlements Consumptive pool Periodic allocations to entitlement holders Dealing with over-allocation and over-use Accounting for interceptions from changes of land use: plantation forestry Assigning risk for future reductions in water availability Commonwealth planning system: content of the MDB Cap and the Basin Plan The MDB Cap The Basin Plan Overview and mandatory/optional content Environmental water allocations Basic rights, including native title Allocating water to consumptive use Assigning risk for future reductions in water availability

Chapter 17

The Legal Effect of a Plan New South Wales Queensland South Australia Tasmania Victoria Western Australia Australian Capital Territory The Commonwealth: the Basin Plan Conclusion — the effect of water allocation planning

Part 5

The Administration of Access Entitlements

Chapter 18

Defining Entitlements

The old form of entitlements The new NWI form of entitlements ‘Unbundled’ NWI entitlements: access, allocation and use Works entitlements The reformed works entitlements Extraction rates Partial models of NWI unbundled entitlements: the Australian Capital Territory and Tasmania The Australian Capital Territory Tasmania Environmental access entitlements New South Wales Victoria Non-NWI and transitional forms of entitlements Queensland and Victoria Queensland Victoria Western Australia and the Northern Territory Western Australia Northern Territory Emerging changes in regulated water resource activities Summary and scope of the following chapters

Chapter 19

Powers and Procedures for Issuing Access Entitlements Requirement for authorisation and power to grant Requirements for statutory authorisation to take water The power to grant a statutory authorisation Who may apply for and hold access entitlements The take and use licence The NWI water access entitlement Applications for access entitlements: process Form of application and the information to be supplied Notice of the application Third party rights to object Duty to determine an application The duty Undertakings to grant Moratorium/embargo on applications

Chapter 20

The Determination of Applications Criteria for determining applications Factors to consider Mandatory refusal or grant Discretionary grounds of refusal Priorities between competing applications First in time to apply Market mechanisms Protection of ‘existing users’ On the introduction of statutory access entitlements On grant of new statutory access entitlements

Chapter 21

Rights and Obligations Conferred by Access Entitlements Rights of access: the share entitlement Share entitlement Tenure Accounting for periodic (seasonal) allocations The system for periodic (seasonal) allocations Water accounting Resource management conditions For take and use licences For NWI Water Access Entitlements Fees and charges Characterising the fees and charges Authority to impose fees and charges Water charge rules under the Water Act 2007 (Cth)

Chapter 22

Variation, Suspension and Cancellation of Entitlements and Claims for Compensation Variation, suspension and cancellation Variation New South Wales Queensland South Australia Tasmania Victoria Western Australia

Australian Capital Territory Northern Territory A comparative summary and potential principles Suspension and cancellation Compensation for variation or loss of entitlements General propositions Provisions for compensation Compulsory and market acquisition

Part 6

Water Trading

Chapter 23

The Object of and Rationale for Transferability Introduction Failure of public administration system and the water management problem The wider world stage Environmental concerns come to the fore Reform, transferability, trade and the market in Australia Embracing the market Transfers and CoAG 1994 water audit Competition, transferability and other key policy documents embracing markets Articulating objects and rationale Transferability and the market: doubts or teething problems? Environmental concerns Volume of transfers/trade Social effects International trade agreements and domestic water governance Cultural concerns A sufficiently scrutinised rationale? Conclusion

Chapter 24

The Historic Non-Transferability of Water Access Rights in Australia Introduction Indigenous rights to water in Australia An inherited common law system — riparian and other common law

rights to water The doctrine of prior appropriation in the western states of America Impediments of common law riparianism The public administration of water Background Key legislation of the public administration era Vesting the Crown with a right to use and control Types of rights and privileges in the era of public administration Statutory riparian rights Statutory privileges/permissions Rights in irrigation schemes The introduction of limited transferability of water entitlements Conclusion

Chapter 25

Contemporary Transferability Introduction Scope of rights that may be transferred Overview of the water markets New South Wales The tradable entitlements Provisions for transferability and ministerial consent General dealings requiring ministerial consent General dealings not requiring ministerial consent Water allocation assignment dealings The framework for determining consent The interaction of dealing principles, Plan Rules and legislation Trade of environmental access entitlements The registration system Queensland The tradable entitlements Provisions for transferability and ministerial consent Resource operations licences and distribution operations licences Water licences Water allocations Seasonal water assignments The framework for determining consent Resource operations licences Water licences

Water allocations Seasonal water assignments The registration system South Australia The tradable entitlements Licences Water allocations Delivery capacity entitlements Provisions for transferability and ministerial consent The framework for determining consent The registration system Tasmania The tradable entitlements Provisions for transferability and ministerial consent Water licences and water allocations Irrigation rights The framework for determining consent Water licences and water allocations Special licences Irrigation rights The registration system Victoria The tradable entitlements Provisions for transferability and ministerial consent Water licences Water shares Water allocations Delivery shares and extraction shares Water-use licence and a water-use registration Bulk entitlements and environmental entitlement The framework for determining consent Water licence transfer consent Consent/approval to the transfer of a water share or water allocation Consent to transfer of bulk entitlements Consent to transfers of environmental entitlements and allocations The registration system Western Australia The tradable entitlements

Licences Water entitlements Agreements with a licensee Provisions for transferability and ministerial consent Licences and water entitlements Agreement with a licensee Transfers to the Minister The framework for determining consent Licences and water entitlements Agreements with licensees The registration system Australian Capital Territory The tradable entitlements Provisions for transferability and ministerial consent Licences Water entitlements The framework for determining consent The registration system Northern Territory The tradable entitlements Provisions for transferability The registration system Interstate water trade and the Water Act 2007 (Cth) The Pilot Interstate Water Trade Project The MDB Agreement, Schedule D The Water Act 2007 (Cth): principles relating to the Basin water markets and trading Water charge rules Water market rules Water trading rules The Commonwealth Environmental Water Holder Conclusion

Part 7

Conclusion on Sharing Water Resources in Australia

Chapter 26

The Australian Model of Water Access Rights Property rights in water and sharing scarcity

Defining the proprietary rights An overview of the model of access rights for sharing water resources The planning system and environmental sustainability

Chapter 27

The Minerals and Petroleum Sectors and Water Access Rights Introduction Common law and legislative history Common law — water access aligned with mineral access Legislative history — mining access to water resources Western Australia Queensland and New South Wales Summary Legislative history — petroleum access to water resources Western Australia Queensland New South Wales Summary Current provisions for extractive industries’ access to water resources compared to the NWI model Western Australia Queensland New South Wales EPBC Act water trigger Summary Mechanisms for integrated decision making and adaptive management Integrated decision making Western Australia Queensland New South Wales Adaptive management Conclusion

Index

[page 1]

Part 1 AUSTRALIAN WATER RESOURCES AND WATER ACCESS POLICY This Part discusses, in the Australian context: the nature of water resources, both the state of the natural resources and their legal definition; the historical development of water access rights and concerns with sustainability; the national water law reform policy; and the objectives and principles of water resources law. To access the water resource diagrams referred to in Chapter 1, register for free at Lexis Learning: . Register using the ISBN of this book 9780409337945 and download the diagrams from the Water Resources Law course page.

[page 3]

1 DEFINING WATER RESOURCES IN AUSTRALIA Water is an essential component of all life on earth. In contrast to the mineral, plant, and animal kingdoms, it is, and will continue to be, a renewable resource. Rain and snow, although unpredictable over short time-spans, and at local and regional levels, are recycled through rocks, soil, and plants, eventually returning to the ocean to renew the process. While the hydrological cycle, and the quality and quantity of water, differ vastly according to geographical location, the undisturbed biophysical environment is well adjusted to this cycle and its vagaries. These differences only present difficulties when the cycle is disturbed by human development.1

The nature and scarcity of the resources 1.1 Water rights regulate the disturbance by human development of the natural hydrological cycle. So, in embarking on this discussion of water access rights in Australia, we should first review the hydrological cycle in Australia, the development of water resources, the existing use patterns and the management issues that arise for legal treatment.

The hydrological cycle in Australia 1.2 The nature of the hydrological cycle in Australia exhibits particular features that need to be considered in designing a framework of legal rights to govern water resources development. Australia is regarded as the driest inhabited land mass in the

world.2 This assessment is based on the calculation of the ‘hydrological balance sheet’, measuring the inputs of precipitation against the outputs of river run-off, recharge to ground water and evapotranspiration. As Figure 1 shows,3 the distribution of precipitation in Australia is highly variable in geographical or spatial terms. Of the water that precipitates very little collects as run-off in streams and rivers, and here again there is considerable geographical variation. Figure 24 shows this variability in [page 4] the rainfall run-off for the 14 drainage divisions of Australia.5 On average across the 14 drainage divisions of Australia, less than 10 per cent of rainfall runs off to collect in rivers.6 1.3 Within each drainage division, there is a complex pattern of surface water catchments that are reflected in surface water management areas. There is an equally complex but quite different pattern of ground water provinces that are also reflected in ground water management areas with quite different boundaries from the surface water management areas. There are limited and varying levels of understanding about the interaction between the surface and ground water resources. Figure 37 shows maps of the surface water river systems and ground water provinces. There is also great variation in the hydrogeological structures of the ground water provinces.8 1.4 There is, similarly, a great variation in the level of ground water recharge in each of these drainage divisions.9 The Australian Water Resources Assessment 2012 (the ‘2012 Assessment’) does not supply the figures for ground water recharge, but Smith (1998) suggests a national average of 1 per cent of precipitation, with only one drainage division, the arid Western Plateau, having a

higher rate of ground water recharge than surface run-off to rivers.10 However, ground water recharge is such a complex interaction of surface and ground water interconnection, slow response time of ground water to rainfall (especially deeper aquifers) and evapotranspiration that attention has turned to concepts of ‘landscape water yield’ and trends in ground water levels.11 After surface run-off and ground water recharge, evapotranspiration accounts for the balance of the water that has precipitated, amounting to 85–95 per cent as a national average but varying greatly between different drainage divisions.12 Understanding the geographic variability of water resources is important for designing the framework for water resources management, yet, as Smith cautions, the importance of spatial variations can mask the even more significant effects of temporal variability.13 1.5 Not only is Australia the driest inhabited continent, it also has, with South Africa, the greatest inter-annual variability of precipitation.14 Global data show that, [page 5] in areas of annual precipitation of less than 1000 mm per year, the lower the level of precipitation, the greater the annual variability in precipitation. That pattern is generally repeated across Australia; precipitation is, mostly, highly variable in temporal or seasonal terms. Further, in global terms, Australia has great temporal variation in run-off from the precipitation, and that variability increases with the size of the catchments because the large inland catchments tend to include areas of very low annual precipitation.15 One example of extreme seasonal variation of flow is the Fitzroy River in the northwest of Australia, where the annual

flow measured over the period 1982 to 2002 had a high flow of approximately 25,000 gigalitres (‘GL’) in 2000 but only 300 GL in 1992.16 The extremes of this variability are manifested in the patterns of droughts and floods that greatly influence water resource management policy.17 For instance, the variability in precipitation and run-off has significant implications for security of water supply and is the reason why larger dam storages are seen as necessary to attain the levels of water supply security obtained in other parts of the world. Another aspect of this policy effect is that rights to take and use water are subject to unilateral government amendment in times of severe scarcity. 1.6 In the past two decades much attention has been given to ascertaining the patterns of drought that are linked to the phenomena called the ‘El Niño — Southern Oscillation’ (‘ENSO’) and the ‘Indian Ocean Dipole’ (‘IOD’). The study of ENSO links changes in the pattern of ocean currents and winds in the Pacific Ocean with changes in ocean temperature and sea-level atmospheric pressures that affects rainfall patterns. During an El Niño event, warm ocean temperatures in the eastern Pacific are associated with a Southern Oscillation that brings drought in eastern Australia and normally corresponds to an El Niño (floods) in South America. During a La Niña event, the pattern is reversed and warm ocean temperatures in the western Pacific bring higher than average rainfall to eastern Australia.18 The pattern is variable, though recent data suggest cyles across two to four years. There are similar patterns of influence from the IOD in the Indian Ocean, so that when warmer waters concentrate in the eastern Indian Ocean this increases precipitation over northwestern and southern Australia, though not so much in the far southwest.19 ENSO and the IOD are still sources of great uncertainty for Australian water resources policy and law to contend with. [page 6]

1.7 The inter-annual variability is complemented with the intraannual variability; that is, the variation in precipitation and runoff across the course of one year. The southern areas of the country have relatively high rates of precipitation and run-off in winter (June to August) and very low rates in the summer. By contrast, the northern monsoonal areas have very low rates of precipitation and run-off during the southern hemisphere winter and correspondingly very high rates during the monsoonal season. 1.8 In summary, the notable characteristics of the Australian hydrological cycle are the highest global variability for any inhabited continent of rainfall distribution and run-off, in both spatial and temporal terms. This great variability presents certain difficulties for water resource management, because one often cannot rely on average annual rates of precipitation and run-off as the basis of defined water access rights that allocate reliable volumes of water to human use. In addition, the very high rates of evapotranspiration limit the volumes of run-off and ground water recharge as well as causing losses from traditional water distribution technologies, such as open earthen channels. These challenges are magnified again with the overlay of the altered patterns of the hydrological cycle caused by human intervention. As noted in the quotation at the commencement of this section, ‘the undisturbed biophysical environment is well adjusted to this cycle and its vagaries’. The ‘disturbance of human development’ has severely impacted on the health of Australian rivers, wetlands, estuaries and ground water systems.20 Let us turn, then, to consider the water resource management issues that have arisen from the human interventions in the hydrological cycle in Australia.

Human development of water resources and the effects 1.9 The established pattern of the human development in Australia is shown in Figure 4,21 a map showing Australia’s major

urban development boundaries.

patterns

and

the

state

and

territory

1.10 Contemplation of human use generally begins with an assessment of ‘water availability’. The Australian Water Resources Assessment 2000 (the ‘2000 Assessment’) suffered an immediate limitation in this calculation because, in most cases, there were no reliable assessments of the environmental water requirements. For example, the sustainable yields in New South Wales and Victoria were assumed to be equivalent to the levels of average annual diversions under the Murray-Darling Basin (‘MDB’) ‘Cap’,22 whereas it is now national law that the MDB is over-allocated.23 The 2012 Assessment utilised a newly developed water balance model, Australian Water Resources Assessment Modelling System (AWRAMS), to report on water availability.24 This model has three [page 7] components: rainfall, evapotranspiration and landscape water yield.25 The landscape water yield is ‘the sum of modelled surface run-off and groundwater discharge to surface waters’ and ‘an indication of potential water availability, especially groundwater, in low rainfall or topographically low profile areas’ (emphasis added).26 Environmental water requirements are not deducted or considered in this estimate, nor is the impact of surface water bodies or human activities such as irrigation,27 which puts an emphasis on ‘potential’. In 2015, the Bureau of Meteorology (‘BoM’) published Water in Australia 2013–14, a comprehensive survey of water resource conditions, water available for use and water used. It defines ‘water available for use’ as ‘water resources that can be put to human use (for example, for urban supplies, industry and irrigation)’.28 In determining the amount of water available for use, ‘the need for sufficient water to be available to maintain healthy environments

and for Indigenous, cultural, recreation and amenity requirements’ are included as limiting factors, among others.29 The BoM says30 that Australia’s surface water storage comprises around 500 major storages with a combined publicly owned water storage capacity of around 84,800 GL. Further, farm dams hold approximately 1900 GL, about 8 per cent of the total water used. The 2000 Assessment also reported that ‘Australia has 25,780 GL of groundwater that can be extracted sustainably each year for potable, stock and domestic use and irrigated agriculture’. This extraction limit has since been reduced to about 10,000 GL.31 Nationally, ground water use is about 5000 GL/yr,32 though this figure masks regional differences. Ground water is much more important in Western Australia (with the level of use twice that of surface water and an estimated 170,000 unmetred domestic wells in the Perth area) and the Northern Territory, while New South Wales and Victoria use predominantly surface water. The mix of water use is changing in these latter states as water users in the MDB turn to ground water resources as a way around the limits on surface water allocations.33 Major urban centres have also in the past decade begun to develop marine desalination (630 GL) and recycling (940 GL) capacity.34 1.11 Overallocation and overuse of water resources have been major drivers of Australian water resources law reform. The 2000 Assessment found significant problems of over-allocation of water resources,35 concluding that 26 per cent of all surface water [page 8] management areas (accounting for 55 per cent of total water use) were ‘either close to or overused when compared with sustainable flow regime requirements’. In October 2008, the Commonwealth Scientific Industrial and Research Organisation (‘CSIRO’) reported on Water Availability in

the Murray-Darling Basin (‘CSIRO Report 2008’).36 The key findings in relation to surface water include: the current average surface water resource of the MDB is 23,417 GL/year of which only 52 per cent would naturally (in the absence of flow regulation and consumption) reach the Murray mouth on average; the current surface water use of the MDB is 11,327 GL/year or 48 per cent of the available surface water, which ‘is a very high relative level of use’ and has reduced outflows through the Murray mouth by 61 per cent; and under the projected median 2030 climate, average total surface water availability for the MDB would fall by 12 per cent, and most of this loss would be in the southern part of the MDB. 1.12 The ground water situation is similar. The 2000 Assessment report concluded that 30 per cent of all ground water management areas are ‘either close to or overused when compared with their estimated sustainable yield’. Neither the 2012 Assessment nor Water in Australia 2013–14 comments on this issue. A stark example of the over-allocation of an important ground water resource is the Gnangara Mound, which provides much of the public water supply for Perth. The average ground water level of the superficial aquifer continues to decline (as shown in the graph in Figure 5),37 and the Leederville and Yarragadee confined aquifers below it are subject to a policy of no new significant allocations because of concern that they too are over[page 9]

Figure 5: Average ground water levels of the Gnangara Mound (superficial aquifer). allocated.38 The decline in ground water levels has seen persistent breaches for several years of the levels required by law to protect ground water-dependent ecosystems.39 1.13 The key findings of the CSIRO Report 2008 on ground water were:40 the current rates of extraction from seven of the 20 major ground water management units in the MDB are unsustainable and require large reductions; on the current rates of extraction, one quarter of total ground water extraction will eventually be sourced directly from induced river recharge, which represents four per cent of the current total surface water use and results in a current overestimation of the future surface water resource; and the likely impact of 2030 climate conditions on rainfall recharge and ground water levels would be minor compared to the impacts resulting from current and additional future extraction.

1.14 The Great Artesian Basin (‘GAB’) is the largest ground water resource in Australia and one of the largest artesian ground water basins in the world.41 It too has been greatly [page 10] affected by water resource development. The GAB underlies the arid and semi-arid lands of about 22 per cent of mainland Australia, including a large part of central and western Queensland, as well as parts of the Northern Territory, South Australia and northern New South Wales. Recharge of the GAB is mainly from the western slopes of the Great Dividing Range, which runs along the eastern coast of Australia. The ground water flows generally southwestward, discharging at natural springs concentrated in the south and southwest regions of the basin. First tapped by wells in northern New South Wales in 1878 and in Queensland in 1886, the ground water resource was the foundation for the rapid expansion of the pastoral grazing industry and inland communities. Approximately 1500 bores were sunk by 1915 when the total flow from the GAB reached a peak of over 2000 ML/day. This rate of exploitation led to a rapid decline in the artesian pressure and a reduction in the number of bores that flowed naturally to the surface and the consequent need to introduce pumping.42 The number of bores has continued to increase but a program of capping bores and piping flows has been instituted to reduce wastage and restore the artesian system. Mounting concerns over a period of decades led to the formation of a cooperative management structure and strategic management plan to coordinate the management efforts of all of the jurisdictions concerned, including the Commonwealth.43 The early lessons with the over-exploitation of the GAB encouraged governments across the country to take a stricter regulatory approach to authorising the abstraction of artesian ground water.

1.15 The major disruptions to the hydrological cycle in Australia have probably been the diversion of water from rivers, including inter-basin transfers of water. The best known example of such a diversion is the Snowy River, which flows from the Australian Alps in southern New South Wales to the southeast coast of Victoria. As part of the Snowy Mountains Hydro-Electric Scheme, almost all natural flows from the Snowy were diverted westwards to generate hydro-electricity and supplement the flows of the Murrumbidgee and Murray Rivers to provide water for irrigation. In 2000, the New South Wales, Victorian and Commonwealth Governments agreed on a program to return up to 294 GL/year or 28 per cent of natural flows to the Snowy River below Lake Jindabyne by investing in water savings in the irrigation works of the Murray and Murrumbidgee Rivers, reducing some hydroelectric generation and buying water entitlements.44 The objectives of the agreed program illustrate the sort of issues associated with the capture and diversion of the Snowy River; namely: … to improve the habitat for a diverse range of plant and animal species by a combination of: improving the temperature regime of river water; achieving channel maintenance and flushing flows within rivers;

[page 11] restoring connectivity within rivers for migratory species and for dispersion; improving triggers for fish spawning; and improving the aesthetics of currently degraded riverine environments.

The program has recovered water access entitlements to return 212 GL or 21 per cent of average natural flow to the environment.45 Besides diverting the water from rivers, human intervention in the flow of water for irrigation purposes can effectively reverse the flow patterns of rivers. Figure 6 illustrates the reversal of flow pattern of the Murray River at Albury resulting from the regulation of the river for irrigation purposes.46 The change of flow patterns

has particular effects on the riverine environment and its waterdependent ecosystems.

Figure 6: Australian Water Resources Assessment 2000, Figure 8. Mean monthly river flow at Albury (An Audit of Water Use in the Murray-Darling Basin, June 1996). 1.16 What is the potential for further water resources development? The Australian Water Resources Assessment 2000 concluded that, while there were many surface and ground water management areas at low to medium levels of development, many of them had limited capability for significant development. In 2015, the Bureau of Meteorology reported a decline in surface water availability in some parts of Australia in the past two decades, especially in the southwest and southeast, but an increase in the north and northwest.47 Similarly, ground water resources show the stress of declining levels in the southwest and other particular locations, including from declining rainfall.48 However, [page 12]

other regions lack knowledge of their resource and the addition of deep ground water resources must be treated with caution because of variable water quality.49 Although opportunities for water resources development in northern tropical Australia are being promoted,50 assessed51 and critiqued,52 in southern Australia resource allocation limits (or caps) are being introduced and implemented through statutory water resource planning and reduction in consumptive water use in order to return water to the environment.53 Development opportunities mainly entail efficiency improvements and moving water to higher value uses through water trading and re-allocation under pressure of drought and a drying climate.54 The pressures of a drying climate have also brought attention to the development of alternative water resources, including desalination and recycling.55

Existing use of water resources 1.17 What, then, are the existing patterns and sources of water use in Australia? Following a period of rapid rise in water use, a 67 per cent increase from 14,600 GL to 24,000 GL between 1983/84 and 1996/97,56 rates of water use have stablised and diversified. The Australian Water Resources Assessment 2000 states, on the basis of 1996/97 data, that:57 [a]pproximately 75% of Australia’s water is used in irrigated agriculture. New South Wales (48%), Victoria (25%) and Queensland (16%) account for almost 90% of all irrigation across Australia. About 20% of total water use is for urban and industrial purposes, the remainder for other rural uses such as stock and domestic needs. In a typical Australian household in 1996/97 each person used around 274 L/day. Gardening is responsible for up to half of this use; flushing toilets uses approximately a quarter. People in Asia, Africa and Latin America use 50–100 L/day; people in the USA use 400–500 L/day.

[page 13] In contrast, in 2013–14 total water use was approximately 23,500 GL, of which 13,400 GL or 57 per cent was used for

irrigated agriculture, 3900 GL or 17 per cent was urban use, 9 per cent for plantations, 8 per cent for farm dams, 5 per cent for stock and domestic, 3 per cent for mining and 1 per cent for non-hydro electricity generation.58 These figures include neither environmental water released from the water entitlement pool nor water used in hydro-electricity generation (because there is no net consumption). There can also be more variability in water use because of the reformed system of water access rights. For example,59 in the Murray-Darling Basin surface water irrigation use decreased 24 per cent from 11,000 GL in 2012–13 to about 8400 GL in 2013–14, while ground water irrigation use increased in the same period by 18 per cent to 1100 GL. The drier conditions of 2013–14 (especially in the northern Murray-Darling Basin) resulted in limited surface water allocation announcements. Household water use has generally declined since 1996, though comparison with 1996 is complicated by the different format of water use figures. Water utilities supplied an average 185 kL per property in 2013–14, up slightly from 179 kL per property in 2012–13.60 Recent Melbourne Water data calculate 2014–15 residential water use at 160 L per person per day.61 Victorian household water consumption in 2013–14 is estimated at 63 kL per person per year (the lowest in the country), which contrasts with Western Australia’s household consumption estimated at 132 kL per person per year, the second highest of all states and territories and 65% above the national average of 80 kL per person per year.62 1.18 What of the sources of this water use? The Australian Water Resources Assessment 200063 indicated that approximately 73 per cent of water used in Australia was supplied by rivers, 21 per cent by ground water aquifers and the remaining 9 per cent from the capture of overland flows. In contrast, the 2014 National Water Account, which was not nationally comprehensive, records that surface water, including inter-region transfers, accounted for 84 per cent of water used and ground water almost 15 per cent, with just 1 per cent of water used contributed by other sources,

including desalination.64 More formally, the water access entitlements on issue in 2013–14 included about 23,000 GL of surface water and about 7000 GL of ground water; in other words, about 30 per cent of water access entitlements are to ground water but there is a preference to use surface water. In addition, by 2013–14, [page 14] environmental water holders in the Murray-Darling Basin held about 3192 GL of surface water entitlements. The desalination capacity was 630 GL, though only about 32 per cent of that capacity was employed. The total effluent treatment capacity of recycling plants was 940 GL, though only about 10 per cent of the effluent of large urban centres was recycled. 1.19 These figures attest to a significant legal development since 2000: the reform of water accounting. The Water Resources Assessment 2000 acknowledged that much of the data was compiled from estimates because there was a lack of resource use monitoring, especially for ground water. Despite the lack of objective monitoring information, the 2000 Assessment stated that water resource managers generally contended that use far exceeded licensed allocation. On the other hand, the 2000 Assessment also later stated that on average, across Australia, water allocation exceeded use by 11 per cent, although there were significant regional variations.65 By 2013–14 there was greater legal certainty in accounting water resources entitlements and use because of the national water policy reforms that have seen the widespread making of water resource plans and the conversion of water access rights to entitlements that confer a share of the available resource determined by annual water allocation announcements. Both entitlements and allocations are tradable, facilitated by the reformed water accounting.66 The reform of the

water access entitlement and accounting regimes has addressed three key challenges that are reflected in water use data: improvement in water use efficiency, accounting for indirect water use in land uses that intercept and consume flows of water and conjunctive management of surface and ground water systems. Addressing water use efficiency is a way to improve productivity and save water that can be returned to the environment. In both agricultural irrigation and urban water supply schemes, there were (and are) transmission losses from leaking pipes and ageing infrastructure. In the irrigation schemes, such transmission losses can also be from evaporation and seepage to ground water from open channels and canals used to transmit the water from its source or storage to places of application. In 2000, one estimate for such losses in the Murray-Darling Basin suggested that ‘basin-wide at least 25% of diverted water is lost in transmission’.67 The Water Resources Assessment 2000 stated that, on average, only 77 per cent of water diverted for use was delivered to the customer.68 In response, the Murray-Darling Basin Plan approved in 2012 explicitly adopts public investment in water use efficiency measures to reduce transmission losses and achieve greater water use efficiency in the application of irrigation water to crops.69 The water that is ‘saved’ is shared between the water [page 15] access entitlement holder and the Commonwealth Environmental Water Holder and assists in setting the ‘sustainable diversion limits’ for surface water resources under the Basin Plan.70 1.20 An essential element of managing water resources in situations of increasing scarcity and re-allocation of water is the improvement of water accounting and better definition of water entitlements. An aspect of this improved accounting is measuring indirect water use that arises from changes in land use that

intercept and consume flows of water. Changes to vegetation cover of land can modify surface run-off, evapotranspiration and ground water recharge.71 Some of these changes to vegetation may be from unplanned causes such as bushfires, which lead to young re-growth forests that transpire more water than stands of mature trees. Other changes in vegetation may be planned and controlled by landholders in pursuit of particular economic objectives, such as the establishment of forest plantations. There are significant challenges to incorporating these effects into a water access entitlement system: see chapter 18 at [18.28]–[18.31]. 1.21 Another particular challenge for water resources policy is the conjunctive management of surface and ground water systems. While there are some irrigation areas where conjunctive use is managed as part of the overall water supply, the ‘administrative arrangements and technical understanding of the complex interactions between surface and groundwater are still developing for most of Australia’.72 The importance of this challenge was highlighted in the MDB where the capping of surface water allocations saw an escalation in accessing ground water.73 The CSIRO Report 200874 explained that projected future increases in ground water extraction would increase the proportion of ground water use from the then current 16 per cent to 24 per cent by 2030 and, consequently, increase streamflow loss to ground water to about 8 per cent of total surface water use by 2030. The Murray-Darling Basin Plan addresses this issue by setting sustainable diversion limits for ground water as well as for surface water. Conjunctive management is an issue beyond the Murray-Darling.75 [page 16] 1.22 The Water Resources Assessment 2000 did not mention either the actual or potential re-use of effluent water or capture

and use of urban storm water as water resources. Key issues with these potential resources have been water quality and storing the treated water pending supply. Municipal re-use of water to irrigate parks and gardens has become relatively common and re-injection of treated effluent or storm water to ground water aquifers is now gaining more attention, a process being described as ‘managed aquifer recharge’.76 In 2013, the Western Australian Government approved a scheme of ‘groundwater replenishment’ by injection of highly treated sewage into a public water supply aquifer, and approved a doubling of the scheme’s capacity in 2016.77 Victoria’s State Water Report 2003–2004 described ‘recycled’ water as one of the water resources available, along with surface and ground water,78 as is now required by a state law.79 Interesting questions arise as to who may obtain an entitlement to access the effluent as a resource.80 While Victoria has contemplated using storm water for injection into the potable water supply system,81 the 2016 State Water Plan proposes only non-potable uses for recycled and urban storm water.82 1.23 Since the first edition of this book, desalination, usually of sea water, has been established as an important alternative source of water independent of rainfall. There are now six large-scale seawater desalination facilities: Perth 2006 and 2012, expanded 2013–14, and Adelaide 2012 both supply large proportions of the cities’ reticulated public water supply; Sydney 2010, Melbourne 2012, and South East Queensland 2009 are available as supplementary sources of public water supply when required.83 Although the normal concepts of water resource scarcity would appear not to arise for sea water, there may still be a need to ascertain entitlements to take it for desalination and use.

Water quality issues 1.24 Smith84 and the 2000 Assessment85 identify a number of significant water quality problems experienced in Australia, which include:

exceeded standards for nutrient pollution (total nitrogen and total phosphorous); salinity (both wetland and dryland salinity); [page 17] turbidity (level of particulates); and pH (including acid sulphate soils). Smith also identifies other water quality issues such as solutes besides nitrogen and phosphorous (like heavy metals, pesticides and herbicides), the alteration of physical properties of temperature and consequential issues like algal blooms caused by elevated levels of nutrients. While much of Australia’s ground water is naturally saline or brackish,86 Smith’s 1998 assessment is that the ‘critical problem for Australia is the extent to which fresh water is being polluted from non-point agricultural sources’.87 This is still true because there is a reticence to regulate the land use activities that cause so many of the problems of water quality.88 Although much of Australia is not monitored or assessed for water quality levels, Smith’s critique is borne out by the depiction of water quality problems in the 2011 State of the Environment Report (Cth).89 Many of the problems of water quality are both a product of the use of water resources (for example, irrigated agriculture) and a constraint on the future use of water resources. The salinity of the River Murray, which threatens much of South Australia’s public water supply, has been a major issue tackled in the management of the use of water to be taken from the river and, increasingly, of the lands in the MDB used for dryland agriculture. 1.25 However, these problems are not limited to the polluting effects of agriculture. The drawdown of the water table on the Gnangara Mound to supply irrigated agriculture and public

drinking water for Perth is causing a problem of acid sulphate soils that threatens to pollute the very same water source as well as the ground water-dependent ecosystems. A 2005 assessment of this problem on the Gnangara Mound stated that:90 acidification on the Gnangara Mound is more extensive than originally thought as there is evidence that groundwater at depth in the superficial aquifer is becoming

[page 18] acidic and is affecting water quality in water supply production bores. Acidic groundwater in some areas may be leaching toxic metals and metalloids from aquifer sediments. … Regional acidification on the Gnangara Mound … has the potential to cause serious environmental damage and loss of biodiversity to all wetlands near the crest of the mound, …

1.26 The value of the water access rights that authorise the taking of the water resources are threatened by the decline in water quality caused by the taking and use of water that they authorise. While protection of water quality is not the topic of this book, it is important to recognise that water quality has historically been an important aspect of the common law rights to water and is still an important aspect of the design of modern statutory schemes of water rights.

Potential impacts of climate change 1.27 Australia officially recorded its hottest year on record in 2013.91 The top five warmest years on record include 2014 and 2015.92 The State of the Climate 2016 report explains: ‘[t]he warming trend occurs against a background of year-to-year climate variability, mostly associated with El Niño and La Nina in the tropical Pacific Ocean.’93 Other key points from that report are that the duration, frequency and intensity of extreme heat events have increased, May–July rainfall has reduced by around 19 per cent since 1970 in the southwest of Australia, since the mid-1990s

the April–October rainfall has declined by around 11 per cent and rainfall has increased across parts of northern Australia since the 1970s. The reduction in rainfall is amplied in streamflow. In the far southwest, streamflow has declined by more than 50 per cent since the mid-1970s. In the southeast, streamflows are around half the long-term average since the mid-1990s. The 100-year rainfall pattern for southeastern Australia, in particular, shows a wetter period from 1950 to 1990 and a significant decline in rainfall from 1990: Figure 7.94 The changing rainfall patterns are shown in Figures 8 and 995 by the maps of trends of southern winter and northern wet-season rainfall.96 In the future, Australian temperatures are projected to continue increasing, and winter and spring rainfall is projected to decrease across southern Australia with more time in drought. Importantly, the 2016 [page 19] report explains that the elevated levels of carbon dioxide explain ‘about 15% of the record temperature anomaly’. There is not yet an explanation on rainfall anomaly. 1.28 The data on the effects of climate change in Australia cannot be assessed here. However, the CSIRO Report 200897 made an assessment of the possible climate change effects on the MDB. The report found that, while the impacts of climate change by 2030 are uncertain, ‘surface water availability across the entire MDB is more likely to decline than to increase’, and that a decline in the south is more likely than a decline in the north, where significant increases are possible. However, the report concludes: The median water availability decline would reduce total surface water use by 4 percent under current water sharing arrangements but would further reduce flow at the Murray mouth by 24 percent to be 30 percent of the total without-development outflow. In volumetric terms, the majority of the impact of climate change would be borne by the environment rather than by consumptive water users.

1.29 For a combination of reasons relating to use of surface and ground water, that consumptive use in a changing climate could have a catastrophic effect on some of the nation’s water resources, especially in the MDB. The CSIRO Report 200898 found that: Consumptive water use across the MDB has reduced average annual streamflow at the Murray mouth by 61 percent. Water resource development has greatly reduced the frequency of flooding of many Ramsar sites and other key floodplains and wetlands across the MDB. Severe drought inflows to the Lower Lakes (annual inflow less than 1500 GL) — which would never occur in the absence of consumptive water use under the historical climate — prevail in 9 percent of years at the current level of water resource development. These hydrologic changes are linked to the significant levels of environmental degradation observed at numerous floodplains and wetlands across the MDB.

Figure 10 shows the historical water level in Lake Alexandrina from 1962 to 2014, artificially maintained by the barrages at the River Murray mouth. The hydrological changes are graphically illustrated by the sudden dramatic decline in the level of water in Lake Alexandrina, one of the Lower Lakes at the end of the Murray-Darling river system and a Ramsar listed wetland, by the collapse in Murray River flows in 2008–10.99 1.30 The problems of the MDB are emblematic of the water scarcity issues facing much of Australia. The growing appreciation of these problems in the past two decades sponsored a national program of water policy and law reform, increasingly led by the Commonwealth Government. Understanding the reforms begins with classifying water resources. [page 20]

Figure 10: Historical Lake Alexandrina Water Levels.100 [page 21]

Defining water resources in law 1.31 The classification of water resources is important for defining the scope of this book and the scope of the water rights

legislation in Australia. Historically, the subject of the water rights legislation has been terrestrial water resources in their natural resource state. That is changing with a new resort to the technologies of desalination and recycling and the consequent expansion of legislative attention to marine water and effluent as sources of water for human use and consumption.

Traditional classification of terrestrial water resources 1.32 Broadly speaking, there are three classes of terrestrial water resources that are traditionally recognised as a water source or resource in water rights legislation: water that flows across or through the surface of land in defined channels and collects in defined places, regularly but not necessarily continuously, defined today as ‘watercourses and wetlands’ or equivalent terms such as ‘waterways’; water that flows or collects underground, defined today as ‘ground water’; and water that lies on or flows freely over the surface of the land otherwise than in watercourses or wetlands, and usually after rainfall or rising from a spring, defined today as ‘storm water’, ‘run-off’ or ‘overland flow’. These classes of water resources are recognised, to greater or lesser degrees, in the statutory definitions of the states and territories, and the rights that attach to them may differ. The definitions given below (sometimes summarised or paraphrased) illustrate by a selection of examples the ways in which each state and territory defines the water resources that are subject to regulation under their respective water resources statutes. The term ‘watercourse’ is discussed separately because of the significance of its common law meaning for the interpretation of some of the statutory provisions.

Statutory definitions of each jurisdiction

New South Wales 1.33 In New South Wales, ‘water source’ is defined to mean the whole or any part of: (a) one or more rivers, lakes or estuaries, or (b) one or more places where water occurs naturally on or below the surface of the ground (including overland flow water flowing over or lying there for the time being), and includes the coastal waters of the State.101

There are, in turn, statutory definitions of some of the concepts used in this definition, notably, river, lake, estuary and coastal waters.102 [page 22] ‘River’ is defined to include: (a) any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved, and (b) any tributary, branch or other watercourse into or from which a watercourse referred to in paragraph (a) flows, and (c) anything declared by the regulations to be a river, whether or not it also forms part of a lake or estuary, but does not include anything declared by the regulations not to be a river.

‘Lake’ is defined to include: (a) a wetland, a lagoon, a saltmarsh and any collection of still water, whether perennial or intermittent and whether natural or artificial, and (b) any water declared by the regulations to be a lake, whether or not it also forms part of a river or estuary, but does not include any water declared by the regulations not to be a lake.

It is notable that the definitions of ‘river’ and ‘lake’ are inclusive and may, therefore, be supplemented by the common law on the ordinary meaning of those terms. ‘Estuary’ is defined to mean:

(a)

any part of a river whose level is periodically or intermittently affected by coastal tides, or

(b) any lake of other partially enclosed body of water that is periodically or intermittently open to the sea, or (c) anything declared by the regulations not to be an estuary, but does not include anything declared by the regulations not to be an estuary.

‘Coastal waters of the State’, by incorporated definitions, means the first three nautical miles of the territorial sea of Australia as measured from the baseline that marks the beginning of Australia’s international maritime boundaries, and any sea that is on the landward side of any part of that territorial sea, but is not within the limits of the state.103 The laws of the state apply to the coastal waters of the state, thus the Water Management Act 2000 (NSW) will apply to relevant water resource activities in the coastal waters. ‘Ground water’ is not a term used in the Act, but ‘aquifer’ is defined to mean ‘a geological structure or formation, or an artificial landfill, that is permeated with water or is capable of being permeated with water’. The Water Management Act does not govern access to alternative water resources in the sewerage network or stormwater drains. Those alternative resources are covered by the Water Industry Competition Act 2006, which defines ‘water’ (includes stormwater and recycled water, but does not include sewage) and ‘recycled water’, which is gained from the treatment of sewerage. [page 23]

Queensland 1.34 In Queensland, generally ‘water’ means:104 (a) water in a watercourse, lake or spring; (b) underground water; (c) overland flow water;

(d) water that has been collected in a dam.

‘Water’ is also given a second extended definition for the purposes of Chapter 2A of the Queensland Act, which applies to the delivery of water supply and demand management in the South-East Queensland region. This extended definition of water ‘also includes recycled and desalinated water, from any source’. The Queensland Act also defines ‘artesian water’, ‘watercourse’, ‘underground water’, ‘overland flow water’, and ‘dam’. ‘Overland flow water’ is a concept particularly applied in the Queensland legislation to describe stormwater and water flowing over land otherwise than in a watercourse or lake. It includes water that has precipitated or risen to the surface naturally from underground. It does not include water that has naturally infiltrated the soil in normal farming operations, recycled tailwater from irrigation or water collected from roofs for rainwater tanks. ‘Recycled water’ is regulated under the Water Supply (Safety and Reliability) Act 2008.

South Australia 1.35 In South Australia, ‘water resource’ means a watercourse or lake, surface water, underground water, stormwater (to the extent that it is not within a preceding item) and effluent.105 The Natural Resources Management Act 2004 (SA) s 3 goes on to define ‘watercourse’, surface water’, ‘undergroundwater’ and ‘effluent’, some of which are noted here to illustrate the incorporation of the traditional classes of water and the inclusion of new sources of water that are available because of the development of technology. ‘Watercourse’ is defined broadly to include not only a river, creek or other natural watercourse (whether modified or not) in which water is contained or flows permanently or from time to time, but also a dam or reservoir that collects water flowing in the watercourse, a lake or estuary through which water flows and a channel into which the water from a watercourse has been

diverted. Further, a reference to a ‘watercourse’ is defined to be a reference to either or both of the bed and banks of the watercourse or the water for the time being within the bed and banks. ‘Surface water’ means both water flowing over land (except in a watercourse) after it has precipitated or risen to the surface naturally from underground and water of this kind that has been collected in a dam or reservoir. [page 24] ‘Underground water’ means both water occurring naturally below ground level and water pumped, diverted or released into a well for storage underground. ‘Effluent’ means domestic wastewater or industrial wastewater, both of which terms are defined.

Tasmania 1.36 In Tasmania, ‘water resource’ is defined to mean ‘a watercourse, lake or any dispersed surface water or groundwater’, or a tidal area that is declared to be subject to the Act in respect of the taking of water.106 The Act goes on to define the significant terms in s 3(1). A unique term in the Tasmanian Act is ‘dispersed surface water’, which means water flowing over land otherwise than in a watercourse after having precipitated or after rising to the surface naturally from underground, or such water that has collected in a dam.

Victoria 1.37 In Victoria, the Water Act 1989 contains no succinct definition of the water resources that are regulated under the Act. Instead, it adopts the ordinary meaning of the word ‘water’, which

is defined to mean ‘water, whether or not it contains impurities’.107 The principal sources of water that are regulated under the Act, ‘waterway’ and ‘groundwater’, are also defined in s 3(1). ‘Waterway’ means: (a) a river, creek, stream or watercourse; or (b) a natural channel in which water regularly flows, whether or not the flow is continuous; or (c) a channel formed wholly or partly by the alteration or relocation of a waterway defined in (a) and (b); or (d) a lake, lagoon, swamp or marsh, being a natural collection of water (other than water collected in a private dam or a natural depression on private land) into or through or out of which a current of water flows as part of a river, creek, stream or watercourse; or (e), (f) and (g) land which is associated with a waterway, whether by being regularly covered by water from a waterway or being part of a slope that rises from the waterway to a definite lip.

‘Groundwater’ means any water occurring in or obtained from an aquifer and includes any matter dissolved or suspended in any such water. ‘Aquifer’ means a geological structure or formation or an artificial landfill permeated or capable of being permeated permanently or intermittently with water. [page 25] It is notable that the Victorian Act contains no definition of ‘surface water’ being water that does not flow in a waterway. Such water is generally not regulated under the Act except when it is collected in a dam; however, the Act does use the term in juxtaposition to ground water, such as where it requires the water resources assessment program to provide information about ‘surface water and groundwater’.108

The Victorian Act also defines ‘recycled water’ to mean ‘water derived from sewage or trade waste that has been treated for the purposes of re-use’ but does not seek to regulate it.

Western Australia 1.38 In Western Australia,109 ‘water resources’ includes: (a) watercourses and wetlands together with their beds and banks; (b) other surface waters; and (c) aquifers and underground water.

It is not clear why this definition is inclusive unless it is intended to permit the ‘water resources’ to capture water that is artificially added or injected to one of the named resources.110 The Act gives extensive definitions of ‘watercourse’ and ‘wetland’, both of which include a natural formation that has been artificially altered. The Act also defines ‘underground water’ to include water that percolates from the ground into a well or other works.

Australian Capital Territory 1.39 In the Australian Capital Territory, ‘water’ means ‘surface water or ground water’ and includes water that contains impurities.111 Various types of water resources subject to management under the Act are defined simply, yet broadly: ‘surface water’ means water on or flowing over land (including in a waterway) after it has either precipitated or risen to the surface naturally from underground, or after it has been returned to the environment following treatment or use, and all such water collected in a dam, reservoir or rainwater tank is included in the definition of surface water;112 and ‘ground water’ means water occurring or obtained from below the surface of the ground or beneath a waterway; it includes water occurring in or obtained from a bore, but not water obtained from any system for the distribution, reticulation, transportation, storage or treatment of water or waste.113

[page 26] The Act also defines ‘waterway’114 and ‘aquifer’. Interestingly, the Act regulates by ‘recharge licence’ works for the purpose of increasing the quantity of ground water.115

Northern Territory 1.40 In the Northern Territory, the ordinary meaning of ‘water’ is adopted; that is, water means water, whether or not it contains impurities.116 The definitions of water resources subject to management under the Act are ‘groundwater’, ‘aquifer’, ‘waterway’ and ‘tidal water’. This last resource, ‘tidal water’, is defined to mean the Northern Territory’s coastal waters and other tidal waters landward of the coastal waters.

Commonwealth 1.41 The Water Act 2007 (Cth) gives an interesting expansion to the definition of ‘water resource’, which means:117 (a) surface water or ground water; or (b) a watercourse, lake, wetland or aquifer (whether or not it currently has water in it); and includes all aspects of the water resource (including water, organisms and other components and ecosystems that contribute to the physical state and environmental value of the water resource).

It is interesting because the definition separately identifies the water and the geological land form in which water may be found, and also because it includes in the concept of water resource the organisms and other ecosystem elements that characterise and give value to the resource. Surface water is also defined to include water in a watercourse, lake or wetland and any water flowing over or lying on the land.

Summary of statutory definitions

1.42 There are a number of notable features in these statutory definitions of water resources, though these features do not present uniformly in all jurisdictions because of the variation of statutory language. (1) Each jurisdiction explicitly includes in its relevant definition of water resources all three of the traditional classes of water resources, except the Victorian and the Northern Territory Acts, which do not include a definition of overland flow or dispersed surface water; that is, surface water that does not flow in a watercourse or wetland. (2) It does not matter that water may only be found intermittently in a watercourse or wetland, perhaps on a seasonal or less regular basis. (3) A watercourse or wetland may be artificially modified or the ground water resource artificially created or supplemented, as in Queensland or South Australia. [page 27] (4) A watercourse or waterway usually includes the bed and banks, sometimes by explicit definition, as in South Australia and Victoria, but other times by implication, as in the New South Wales and Queensland provisions referring to a river or watercourse flowing in a ‘channel’. (5) Regulations or other subsidiary instrument may be used to prescribe that a particular body of water is or is not a water resource of a particular sort subject to the statutory regime. (6) The extent of the water resources regulated in each jurisdiction differs; for example, only New South Wales and the Northern Territory include estuaries and coastal waters. Only South Australia includes effluent generally, while Queensland specifically defines water in the southeast region

to include desalinated and recycled water for the purposes of managing its water supply network. Only the Australian Capital Territory includes rainfall captured in a rainwater tank. 1.43 The most contentious of the defined water resources is a watercourse or waterway. Two jurisdictions, New South Wales and South Australia, permit recourse to the common law definition of watercourse to supplement the inclusive statutory definition. Other jurisdictions purport to define watercourse or waterway by exhaustive meaning, but even there it is possible that the interpretation of the statutory definition may be informed by the common law meaning. At common law, the definition of ‘watercourse’ is relevant to determining the extent of rights to take water and the rights to drainage and the construction of flood control barriers. The common law definition may also be significant for ascertaining when statutory controls over interference with the physical form or environment of a watercourse may be exercised: Zouki v Water Administration Ministerial Corporation (2001) 118 LGERA 229. The leading Australian judicial definition of ‘watercourse’ at common law comes from the judgment of Barwick CJ in Knezovic v Shire of Swan Guildford (1968) 118 CLR 468, a High Court decision on appeal from the Supreme Court of Western Australia. His Honour regarded a watercourse as having a bed and banks and flowing water exhibiting ‘features of continuity, permanence and unity’, even if that flow be intermittent or seasonal: at 475.118 He also held that a watercourse is to be distinguished from ‘a mere drainage depression in the contours of the land which serves to relieve the upper land of excess water in times of major precipitation’: at 475.119 The Knezovic definition has been [page 28]

considered in numerous cases.120 It was most recently applied in Macag Holdings Pty Ltd v Torrens Catchment Water Management Board [2000] SASC 115; (2000) 76 SASR 434, where the Supreme Court of South Australia held that a small channel at the foot of a small valley was not a ‘natural watercourse’ because the flow of water along the channel was only occasional (after heavy rain) and for a short duration of no more than four hours. 1.44 In conclusion, we note that most of the Australian states and territories (Victoria and the Northern Territory excepted) define water resources in a way that provides for the regulation of the three traditional classes of natural water resources, but with various differences in the detail. The Victorian and Northern Territory legislation does not define water or water resources to include overland flow, and this omission is reflected in the focus of the regulatory management of water resources. Queensland and Victoria include definitions of recycled water, but do not submit that form of resource to the general regulatory framework of natural resource management. New South Wales and the Northern Territory seem to provide for regulation of water desalination by including their coastal waters in the water resource definition. Queensland defines desalinated water, but principally for the water supply purposes. Only the Commonwealth Act definition includes other attributes of a water resource that give it environmental values.

1.

D I Smith, Water in Australia: Resources and Management, Oxford University Press, Melbourne, 1998, p xvii.

2. 3.

Ibid, p 4. Antarctica is the driest of all the continents. See . This Figure was kindly provided to the author by the Australian Government, Bureau of Meteorology, April 2009.

4. 5.

See . Australian Government, Bureau of Meteorology, Water in Australia 2013–14, 2015, p 12, Figure 2 . The Bureau of Meteorology website also shows in interactive interface the ‘Australian Landscape Water Balance’ for actual periods of time: (day, month, year) and relative to long-

term records: . 6.

7. 8. 9.

Australian Government, Bureau of Meteorology, Water in Australia 2013–14, 2015, p 12: . See also, Australian Water Resources Assessment 2012, 2013, ‘National Overview’, p 2: . See . N Harrington and P Cook, Groundwater in Australia, The National Centre for Groundwater Research and Training, 2014, Figure 1, p 5. Smith, 1998, p 7.

10. 11.

Ibid, citing 1987 data. Australian Water Resources Assessment 2012, Technical Supplement 3, and Water in Australia 2013–14, 2015, 2.3, p 23.

12. 13.

Smith, 1998, pp 8–12; Australian Water Resources Assessment 2012, ‘National Overview’, p 2. Smith, 1998, p 12.

14. 15.

Ibid, p 14. Ibid, pp 14–15.

16.

Government of Western Australia, Department of Water, ‘Fitzroy catchment subregion overview and future directions: Kimberley regional water plan working discussion paper’, October 2009. The measurements were taken inland at Fitzroy Crossing. Smith, 1998, p 194.

17. 18.

19. 20. 21. 22.

Ibid, p 197. See also Australian Government, Bureau of Meteorology, ‘El Niño Southern Oscillation’: and follow the links to ‘Climate’, ‘About Australian climate’, ‘Australian climate influences’ and ‘El Niño Southern Oscillation’. Australian Government, Bureau of Meteorology, ‘Indian Ocean Influences on the Australian Climate’: . D Yencken and D Wilkinson, ‘Land and Waters’ in Resetting the Compass: Australia’s Journey Towards Sustainability, CSIRO Publishing, 2000. See .

23.

2000 Assessment, see ‘Water Availability’. The Cap is discussed in chapters 14, 15 and 16. Water Act 2007 (Cth), Basin Plan, 2012.

24. 25.

Australian Water Resources Assessment 2012, ‘Introduction’, pp 8–9. Australian Water Resources Assessment 2012, ‘National Overview’, p 5.

26. 27.

Australian Water Resources Assessment 2012, ‘Introduction’, p 7. Australian Water Resources Assessment 2012, ‘Introduction’, p 9.

28.

Australian Government, Bureau of Meteorology, Water in Australia 2013–14, p 29: . Ibid.

29.

30.

Water in Australia 2013–14, p 31.

31. 32.

Water in Australia 2013–14, p 33. N Harrington and P Cook, Groundwater in Australia, National Centre for Groundwater Research and Training, Australia, 2014, p 7.

33. 34.

See further ibid. Water in Australia 2013–14, p 4.

35. 36.

2000 Assessment, see ‘Summary’. Commonwealth of Australia, Water Availability in the Murray-Darling Basin: A report from the CSIRO to the Australian Government, CSIRO: and follow links to ‘Flagships’, ‘Water for a Healthy Country Flagship’, ‘Sustainable Yields Project’, ‘The Murray-Darling Basin Sustainable Yields Project’, ‘MDBSY Whole of Basin Report’ and ‘Water Availability in the Murray-Darling Basin Report’. The CSIRO has conducted similar studies in other regions of Australia; for example, the ‘South-West Western Australia Sustainable Yields Project’, December 2009.

37.

Government of Western Australia, Department of Water, ‘Gnangara groundwater system’, May 2017, at and follow links to ‘Water topics’, ‘Groundwater’ and ‘Understanding groundwater’. The Department explains as follows: The average groundwater level graph is based on monthly measurements at 43 monitoring bores across the Gnangara Mound (Superficial aquifer), which are averaged to show relative changes in groundwater levels compared to the average highest recorded groundwater level. Bores for the graph were selected from our existing monitoring network on the Gnangara Mound, with a minimum of ten years of data. To achieve the single monthly average figure, monthly water levels are offset against the highest historically recorded groundwater level for each bore. These offset water levels are then averaged across all 43 bores to produce a single number for the month.

38. 39. 40. 41.

42. 43. 44.

Also, Department of Water, ‘Gnangara Groundwater Areas Allocation Plan’, 2009, Figure 5, ‘Groundwater storage decline in the Superficial Aquifer 1979–2008’, p 13. Western Australian Department of Environment, Policy on Accessing the Leederville and Yarragadee Aquifers in Perth, July 2003. A Gardner, ‘Environmental Water Allocations in Australia’ (2006) 23 EPLJ 208 at 212. CSIRO Report 2008, p 47. See also, Water in Australia 2013–14, pp 23–27. Australian Government, Department of the Environment and Energy: and follow links to ‘Topics’, ‘Water’, ‘Water in our environment’ and ‘Great Artesian Basin’. Smith, 1998, pp 156–157. See website of the Great Artesian Basin Coordinating Committee, established in 2004. Heads of Agreement between the New South Wales, Victorian and the Commonwealth Governments, ‘The Agreed Outcome from the Snowy Water

Inquiry’, 2000, and Snowy Water Outcomes Implementation Deed 2002 between the same parties. 45.

46.

New South Wales Government, Department of Primary Industries, Water, at and follow links to ‘water management’, ‘water recovery’ and ‘Snow Water Initiative’ (October 2016). 2000 Assessment, see Water Availability, Figure 8.

47. 48.

Bureau of Meteorology, Water in Australia 2013–14, 2015, section 2.2, p 13 ff. Water in Australia 2013–14, p 23 ff.

49. 50.

Water in Australia 2013–14, p 11. Australian Government, ‘Our North, Our Future: White Paper on Developing Northern Australia’, 2015, esp 40–54.

51.

CSIRO, ‘Northern Australia Water Resource Assessment’: , and follow links to ‘research’, ‘major initiatives’ and ‘developing northern Australia’. C Petheram et al, ‘Northern rivers and dams: A preliminary assessment of surface water storage potential for northern Australia, Technical Report’, 2014. L O’Neil, L Godden, E Macpherson and E O’Donnell, ‘Australia, wet or dry, north or south: Addressing environmental impacts and the exclusion of Aboriginal peoples in northern water development’ (2016) 33 EPLJ 402.

52.

53. 54.

Australian Government, Murray-Darling Basin Authority, ‘Basin Plan Annual Report 2014–15’. Australian Government, National Water Commission, ‘Impacts of water trading in the southern Murray-Darling Basin between 2006–7 and 2010–11’, 2012. G Roth, G Harris, M Gillies, J Montgomery and D Wigginton, ‘Water-use efficiency and productivity trends in Australian irrigated cotton: A review’ (2013) 64 Crop & Pasture Science 1033.

55. 56.

Water in Australia 2013–14, p 23. Australian Water Resources Assessment 2000, see p v and Water Use.

57. 58.

Australian Water Resources Assessment 2000, see Water Use. Water in Australia 2013–14, p 38. The Australian Bureau of Statistics ‘Water Account, Australia, 2013–14’ presents the figures differently: see and search catalogue number 4610.0.

59. 60.

Water in Australia 2013–14, p 40. Water in Australia 2013–14, p 42.

61.

Melbourne Water, ‘Water use data’, at (October 2016). Australian Bureau of Statistics ‘Water Account, Australia, 2013–14’, ‘State and Territory Summaries’, see and search catalogue number 4610.0.

62. 63. 64.

2000 Assessment, see ‘Water Use’, p 55. These figures do not add up to 100 per cent, but they are the figures given. Australian Government, Bureau of Meteorology, ‘National Water Account, 2014’, National Overview, Key findings: (October 2016).

65.

2000 Assessment, see ‘Achieving Sustainable Management’.

66. 67.

Water in Australia 2013–14, pp 29–30. J Whittington et al, CRC for Freshwater Ecology, Ecological Sustainability of Rivers of the Murray-Darling Basin: Review of the Operation of the Cap, February 2000, p 7.

68. 69.

2000 Assessment, see ‘Achieving Sustainable Management’. Smith, 1998, pp 89–95. Water Act 2007 (Cth), Basin Plan, see esp [5.05(1)(a)] and chapter 7, part 2. See also Australian Government, Department of Environment, ‘Water Recovery Strategy for the Murray-Darling Basin’ (June 2014) and Australian Government, Department of Agriculture and Water Resources, ‘Water programmes in the Murray-Darling’: (2016). State governments are also investing in these programs: State of Victoria, Department of Environment, Land, Water and Planning, ‘Water for Victoria, Water Plan’, 4.6, ‘Balancing outcomes of the Murray-Darling Basin Plan’ (2016).

70.

M Hartley, ‘Regulating for groundwater-use efficiency: A toolbox approach based on experience in three disparate jurisdictions’, (2014) 31 EPLJ 92 at 95–96; A Gardner, R Blakers and M Hartley, ‘Legal Scenarios for Integrated Water Resources Modelling’, (2014) 17 Australasian Journal of Natural Resources Law and Policy 1 at 29ff. Smith, 1998, pp 306–317.

71. 72. 73.

2000 Assessment, see ‘Achieving Sustainable Management’. Victorian Government Department of Sustainability and Environment, State Water Report 2003–2004, 2005, section 1.4, p 15.

74. 75.

CSIRO Report 2008, pp 50–51. N Harrington and P Cook, Groundwater in Australia, The National Centre for Groundwater Research and Training, 2014, pp 16–17.

76.

M Bennett, A Gardner and K Vincent, ‘Regulatory Renovation for Managed Aquifer Recharge Using Alternative Water Resources: A Western Australian Perspective’, (2014) 24(1) The Journal of Water Law 5. Government of Western Australia, Water Corporation of Western Australia, ‘Groundwater Replenishment’: and search that term (2016).

77.

78. 79.

Government of Victoria, State Water Report 2003–2004, 2005, Part 1, p 34. Water Act 1989 (Vic) s 22(2).

80.

See J Gray and A Gardner, ‘Legal Access to Sewage and the “Re-invention” of Wastewater’ (2008) 12(2) The Australasian Journal of Natural Resources Law and Policy 115. T McCallum, ‘Kalkallo: a case study in technological innovation amidst complex regulation’, a report for Project A3.2, Co-operative Research Centre for Water Sensitive Cities, 2015.

81.

82. 83.

State of Victoria, Department of Environment, Land, Water and Planning, ‘Water for Victoria, Water Plan’, chapter 5. Water in Australia 2013–14, pp 33–34.

84.

Smith, 1998, chapter 2 and pp 97–103.

85.

2000 Assessment, see ‘Water Quality’.

86.

Smith says that, nationally, about 30 per cent of ground water is saline or brackish: see Smith, 1998, p 36. N Harrington and P Cook, Groundwater in Australia, 2014, say that potable (below 1000 mg/L of salinity) ground water yield is 18,310 GL per year out of total sustainable yield of ground water of all salinity classes of 29,173 GL per year. See Smith, 1998, p 74.

87. 88.

89. 90.

91.

92. 93. 94.

95. 96. 97. 98. 99.

M Waschka and A Gardner, ‘Diffuse source pollution and water quality law for the Great Barrier Reef: why the reticence to regulate?’, chapter 11 in J Gray, C Holley and R Rayfuse (eds), Trans-jurisdictional Water Law and Governance, Earthscan, 2016, pp 195–213. Australian Government, Department of the Environment and Energy, ‘2011 State of the Environment Report’, Water Quality, chapter 4.2.2. Western Australian Government, Department of Environmental Protection, Acidification of the Superficial Aquifer in the Perth Metropolitan Region: Causes, Distribution and Information Gaps, Progress Report No 3, June 2005, Summary. See also Government of Western Australia, Department of Water, ‘Perth Shallow Groundwater Systems Investigation: Lexia Wetlands’, May 2011. See also S Appleyard and T Cook, ‘Reassessing the management of groundwater use from sandy aquifers: acidification and base cation depletion exacerbated by drought and groundwater withdrawal on the Gnangara Mound, Western Australia’ (2009) 17 Hydrogeology Journal 579. Australian Government, Bureau of Meteorology, Australian Annual Climate Statement 2013, issued 3 January 2014. The statement explains: ‘The Australian area-averaged mean temperature for 2013 was +1.20 °C above the 1961–1990 average.’ Australian Government, Bureau of Meteorology, CSIRO, State of the Climate 2016, p 4, 2016. Ibid. See . Australian Government, Bureau of Meteorology, Australian Climate Variability and Change — Time Series Graphs, Annual Rainfall, Southeastern Australia, 1900–2015. See . Australian Government, Bureau of Meteorology, CSIRO, State of the Climate 2016, pp 9 and 10. CSIRO Report 2008, ‘Executive Summary’, p 5. Ibid, p 6. A Ramsar listed wetland refers to a wetland designated by the Commonwealth of Australia under the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971. The Commonwealth Minister may list and declare for protection such wetlands under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

100. Australian Government, Murray-Darling Basin Authority, Drought Emergency Framework for Lakes Alexandrina and Albert, 2014:

and follow links to ‘Publications’, ‘MDBA reports’, see p 7, Figure 1. 101. Water Management Act 2000 (NSW), Dictionary, definition of ‘water source’. 102. Water Management Act 2000 (NSW), Dictionary, definitions of ‘river’, ‘lake’, ‘estuary’ and ‘coastal waters’. 103. The ‘limits of the State’ are, at common law, the low water mark of the tide on the seashore: New South Wales v Commonwealth (1975) 135 CLR 337. 104. Water Act 2000 (Qld), Dictionary. 105. Natural Resources Management Act 2004 (SA) s 3. 106. Water Management Act 1999 (Tas) s 3(1), as amended by Water Legislation Amendment Act 2008 (Tas) ss 5 and 7. 107. Water Act 1989 (Vic) s 3(1). 108. Water Act 1989 (Vic) s 22(2)(a). 109. Rights in Water and Irrigation Act 1914 (WA) ss 2 and 3. 110. For a contrary view, see K Vincent and A Gardner, ‘Managed aquifer recharge using alternative water sources in Western Australia: A new property rights approach’ (2014) 23 APLJ 36 at 45. 111. Water Resources Act 2007 (ACT) s 3 and Dictionary. 112. Water Resources Act 2007 (ACT) s 8. 113. Water Resources Act 2007 (ACT) s 9. 114. Water Resources Act 2007 (ACT) s 10. 115. Water Resources Act 2007 (ACT) ss 47–51. 116. Water Act 1992 (NT) s 4. 117. Water Act 2007 (Cth) s 4. 118. See also: Gartner v Kidman (1962) 108 CLR 12 at 27–28, per Windeyer J, where his Honour noted a passage from an American case that says there may be a distinct meaning given to the term ‘watercourse’ when used in relation to riparian rights and drainage rights. Barwick CJ in Knezovic at 476 rejects this suggestion. 119. Applying these definitions to the facts may be problematic. In Knezovic v Shire of Swan-Guildford, the High Court decision holding that the natural drainage channel was not a watercourse was only a 3–2 majority. All of the judges of the Supreme Court of WA, at first instance and on appeal, had held that the drainage channel was a natural watercourse. See also Maugeri v Commissioner of Irrigation [1972] Qd R 411 where the Supreme Court of Queensland held that a drainage depression was a watercourse with a clearly defined bed and banks, cutting through the level of adjacent land, and in which water flowed occasionally, so that the Commissioner was entitled under statutory authority to enter the plaintiff’s land and ensure that a barrier was removed. 120. See M Taylor and R Stokes, ‘Up the creek: What is wrong with the definition of a river in New South Wales?’ (2005) 22 EPLJ 193.

Figure 1: Average annual rainfall, Australia. Referred to in chapter 1 at [1.2].

Figure 2: Long-term annual runoff total and its proportions per drainage division. Referred to in chapter 1 at [1.2]. Australian Government, Bureau of Meteorology, Water in Australia 2013-14, p 12, Figure 2. Bureau of Meteorology creative commons attribution: .

Figure 3a: Surface water drainage divisions of Australia. Referred to in chapter 1 at [1.3].

Figure 3b: Australia’s ground water provinces. Referred to in chapter 1 at [1.3]. Australian Bureau of Statistics.

Figure 4: Map showing population density, which includes location of major cities and state and territory boundaries. Referred to in chapter 1 at [1.9]. From the Australian Bureau of Statistics (ABS), 2006 Census, A Picture of a Nation: The Statistician’s Report on the 2006 Census, “Population Overview”, January 2009. ABS data used with permission from the ABS.

Figure 7: Southeastern Australia annual rainfall, time series, 1900– 2016. Referred to in chapter 1 at [1.27]. Australian Government, Bureau of Meteorology: and follow links to ‘Climate’, ‘Climate change and variability’, ‘Time series graphs’. Bureau of Meteorology creative commons attribution: .

Figures 8 and 9 are taken from Australian Government, Bureau of Meteorology, State of the Climate, 2016, pp 9 and 10: . Reproduced by permission of the Bureau of Meteorology, © 2017 Commonwealth of Australia.

Figure 8: Southern growing season (April–October) rainfall deciles for the last 20 years (1996–2015). This decile map shows where rainfall is above average, average or below average for the recent period, in comparison with the entire rainfall record from 1900. Referred to in chapter 1 at [1.27].

Figure 9: Northern wet season (October–April) rainfall deciles for 1995–2016. Referred to in chapter 1 at [1.27].

[page 29]

2 HISTORICAL DEVELOPMENT OF WATER ACCESS RIGHTS AND LEGAL MODELS FOR SHARING WATER RESOURCES Introduction 2.1 S D Clark and I A Renard, The Law of Allocation of Water for Private Use, 1972: Another reason for entrusting development of water resources to the state stems from a fundamental idea of the ‘nature’ of water. Water is a transient, elusive commodity, whether flowing in a river, diffused over land or percolating through it. Even when it comes to rest in an apparently stagnant pond, it is, in fact, subject to change by precipitation, natural surface drainage, seepage, evaporation and transpiration. Like air, it defies our ordinary concepts of possession and ownership. Coupled with this, is the universal dependence of all life on water. Together, these notions have dictated the response of removing the vast bulk of visible water from the sphere of private ownership.1

2.2 Communiqué of the Council of Australian Governments meeting, Attachment A, 1994: In relation to water resource policy, the Council agreed: … 4.

in relation to water allocations or entitlements: (a) the State Government members of the Council, would implement comprehensive systems of water allocations or entitlements backed by

separation of water property rights from land title and clear specification of entitlements in terms of ownership, volume, reliability, transferability and, if appropriate, quality, (b) where they have not already done so, States would give priority to formally determining allocations or entitlements to water, including allocations for the environment as a legitimate user of water …2

[page 30] 2.3 Council of Australian Governments, Intergovernmental Agreement on a National Water Initiative, 2004 (‘NWI’)3 at [2]: In Australia, water is vested in governments that allow other parties to access and use water for a variety of purposes — whether irrigation, industrial use, mining, servicing rural and urban communities, or for amenity values. Decisions about water management involve balancing sets of economic, environmental and other interests. The framework within which water is allocated attaches both rights and responsibilities to water users — a right to a share of the water made available for extraction at any particular time, and a responsibility to use this water in accordance with usage conditions set by government. Likewise, governments have a responsibility to ensure that water is allocated and used to achieve socially and economically beneficial outcomes in a manner that is environmentally sustainable. [Italics added.]

2.4 Council of Australian Governments, NWI at [37]: Broadly, water planning by States and Territories will provide for: (i) secure ecological outcomes by describing the environmental and other public benefit outcomes for water systems and defining the appropriate water management arrangements to achieve those outcomes; and (ii) resource security outcomes by determining the shares in the consumptive pool and the rules to allocate water during the life of the plan.

2.5 The four quotations above show a transition in the legal character of water access rights. Writing in 1972, Clark and Renard encapsulate the philosophical basis for the system of public control of water resources that prevailed in Australia for most of the twentieth century. Under that regime, private persons could exercise rights to access water resources on the basis of land access rights (often limited to domestic and stock use), access rights

under personal licences that were usually attached to the title to land where the water was to be used, or rights to receive a supply of water from a public water utility that had ill-defined rights of governmental access. The policy developments instigated in 1994 and 2004 by the Council of Australian Governments, however, launched Australia on the most significant water law reform for a century. A central feature of that reform has been the conversion of most of the former landholder, licence, supply and public utility rights to access rights that have the legal character of private property. The generic term given to the new proprietary right to access water is a ‘water access entitlement’. The broader term ‘water access rights’ refers to entitlements and other access rights, principally the remnant landholder access rights, which have not been transformed into property rights in water separate from land title. [page 31] 2.6 The new water access entitlements are to be plan-defined perpetual entitlements to a share of available water resources that may be traded separately from land title. The twin purposes of the reforms have been to harness the economic efficiencies of market mechanisms in the allocation and re-allocation of water resources to human uses, and to address natural resources degradation and achieve the sustainable use of water resources. Importantly, the new species of water access entitlements are held subject to government regulatory authority. Notions of private property rights in water resources often evoke political concerns about the possible social, economic and environmental effects of the private control and market distribution of scarce water resources, which are so vital to all life.4 Should Australians be concerned about the establishment of private proprietary rights in water resources and the establishment

of water markets? How have these legal reforms changed the way we share scarce water resources? 2.7 The initial purpose of this chapter is to introduce the legal traditions for sharing water scarcity that have, arguably, influenced this recent evolution of property rights in Australian water resources. To do this, we will briefly explore concepts of property and two Anglo-American historical models of water access rights as legal models for sharing water scarcity. We also introduce the concept of sustainability that has been injected into Australian water resources law by the introduction of water resources planning as the foundation for the definition of all water access rights and for the operation of water markets. In chapter 26, we will conclude with an evaluation of the nature of water access rights in Australian water resources law and an analysis of the legal model that Australia has adopted for sharing water scarcity within the limits of environmental sustainability.

Concepts of property and Anglo-American historical models of water access rights 2.8 The common understanding of ‘property’ is founded on the notion of the ownership of some object or thing, whether corporeal or incorporeal. In law, ownership confers on a defined person or persons exclusive rights in respect of the object or thing, such as the right to possess, use, manage, profit from, destroy or transfer to another, and concurrent duties not to cause harm by the use of the object or thing.5 Contrary to popular usage, the legal concept of ‘property’ does not refer to the object or thing itself; rather, it refers to the set of rights and duties that define the relationship between the owner and the [page 32]

object or thing.6 The law recognises and enforces that proprietary relationship of the owner against all other persons, including government. It is important to note at the outset two important legal conceptions of property in relation to water resources: water in its natural state is common property not amenable to personal ownership, but rights of access to water resources are a species of property that may inhere in a person, whether an individual or a juristic entity such as a corporation.

Water resources as common property 2.9 As Professor Fisher has explained, the common law of England followed Roman legal tradition in recognising water resources in a state of natural flow as a form of common property — a resource available to all and not amenable to exclusive ownership by any person. A right of property usually inheres in an identifiable person, whether the person is an individual or a juristic entity. The essence of property rights is that the exercise of those rights is exclusive to the person in question. Some substances however have not been regarded as capable of sustaining rights of property. Roman law, for example, recognised that certain things could not belong to individual persons. Some of these belonged to nobody — res nullius, while others belonged to the state — res publicae. However, it is significant … that a number were regarded as common to all — res communes. Those common to all were, … the air, running water, the sea and the seashores.7

2.10 A feature of common property is that any person may exercise a public right of access to the resource, as with the public right to fish or navigate in tidal waters.8 At common law, the executive government could not restrict these public rights by granting exclusive private rights to access the same resource. Only legislation could abridge the public right and authorise the government to grant private rights of access to the common property resource. The abuse of the public right could be controlled by taking judicial proceedings in public nuisance against a direct interference with the exercise of the same public right by another; for example, by blocking navigation or polluting

waters. Sadly, the common law did not devise concepts to limit the exercise of public rights as to quantity of the natural resource being exploited, so that a common property resource could be exploited to the point of exhaustion. However, the common law did develop a regime of private rights to access water resources that were incidental to the ownership of land. These ‘natural rights’ of land ownership restricted access to water resources and had some conserving influence on the exploitation of the water resources in rivers and lakes shared by more than one landowner. [page 33]

Rights of access to water as a species of property 2.11 In the Anglo-American common law tradition, there developed two different models of private rights to access the common property water resources of rivers and lakes: the riparian doctrine developed in England and adopted in most of the common law world, and the prior appropriation doctrine of the arid western states of the United States of America and some parts of Canada. The rights of access under both of these doctrines qualify the depiction of water resources as common property, because both doctrines conferred some exclusivity of private access to the water resources, albeit with generally different proprietary consequences. Although the two common law doctrines have long since been overlaid with legislative provisions for licensing, the basic features of the two doctrines are briefly described here as a basis for understanding models of water allocation.9 A fuller description of the Australian common law doctrines of access to water resources follows in chapter 8.

The riparian doctrine 2.12 The basis of the riparian doctrine is ownership of land that abuts the water resource, particularly the ownership of the bank of a river or lake that flows over the surface of more than one landholding. The right to access the water resource was regarded as an incident of the ownership of the riparian land, a ‘natural right’ accruing to that landholder. The right could not be transferred to a non-riparian landholder in gross.10 It could only be conveyed to another person by the transfer of the riparian land. The right of the riparian landholder was to receive the natural flow and to make reasonable use of it on the riparian land, which right was shared with all other riparian landholders on the same water resource. This entitled the landholders to have the water flow past their land in its natural state of flow, to take and use the water for ordinary (domestic and stock watering) purposes and for extraordinary purposes (eg irrigation and [page 34] power generation) that did not sensibly diminish or increase the quantity of flow nor alter its character or quality. In times of scarcity, upstream landholders might exhaust the water by their ordinary use, but diversions for extraordinary use would have to be reduced to permit other landholders to access a fair share of the water. The riparian doctrine also authorised the riparian landholder to construct works to divert water. 2.13 The distinctive character of the riparian doctrine was that it vested only a right to access the water resource — a ‘usufructuary’ right — that is, a right to access a resource that the rights holder did not own. The exercise of the right by the diversion of a certain quantity of water for particular beneficial purposes did not vest any indefeasible right to continue that use by virtue of some prior

occupation: Mason v Hill (1833) 110 ER 692.11 Thus, a landholder who was not taking water for extraordinary use could decide to commence exercising that right and bring legal proceedings to restrain another riparian landholder whose established use of the water resource might prevent that. Furthermore, the riparian landholders could vindicate their rights by legal action without the need to show economic harm caused by another person breaching their right. The riparian doctrine shared the water resources of the river or lake on the basis of the reciprocal rights and obligations of the riparian landholders: the ‘principle of mutuality’.12 There was clearly a sense of equitable apportionment of the resource between the riparian landholders. On the other hand, the riparian doctrine said little about sharing scarce water resources with the nonriparian community. It did, however, have the happy consequence of protecting in-stream flows for the benefit of the environment, though that appears not to have been an explicit purpose of the doctrine.

The prior appropriation doctrine13 2.14 The basis of the prior appropriation doctrine is the taking of water from a ‘natural stream’ and its application to a beneficial use within a reasonable period of time and in a non-wasteful manner. The act of appropriation created a perpetual property right to take that quantity of water, the security of that right against other appropriators ranking according to the time of first appropriation — ‘first in time, first in right’. The doctrine is said to have originated in the nineteenth-century practices of miners occupying federal public lands in the arid western regions of the United States of America. The doctrine was subsequently extended to other users of water and displaced the riparian doctrine as the common law of access to water resources.14 2.15

The right to appropriate the water does not depend on

ownership of land; indeed, the mere ownership of land gives no rights to take and use water. The appropriator would, [page 35] of course, need to obtain authority to convey water from the stream across private or public land to the place of use. There are no limitations on the place of use, which may involve inter-basin transfer. The right subsisted only so long as the appropriator was exercising it; the right was held to be abandoned by the failure to take the water or by its wasteful use. Traditionally, beneficial use was regarded as involving a broad range of human consumptive uses that depended on the appropriator taking the water from the stream, but the modern doctrine has evolved to permit in-stream flows for environmental purposes. Otherwise, it is not clear how the doctrine would have provided for in-stream flows. 2.16 In times of scarcity, there was no equitable sharing or pro rata reduction in entitlements. The most junior of the appropriators (in terms of the time of first appropriation) were expected to cease taking water in order that the more senior appropriators could take their full entitlement. The market in water rights was seen as a mechanism to re-allocate water and alleviate problems of scarcity. From the early stages of the doctrine’s development in the nineteenth century, the right of appropriation was recognised as being transferable, like other property rights.15 Initially, this involved recognition of the change of the place of use of the water and the point of diversion, which might be achieved by transfer of ownership.16 The right to change the type and time of use followed from those early decisions. In time, transfers became subject to the rule that there be no injury to other appropriators, including junior appropriators. Because of concerns about speculation in water rights, some American states went further and enacted declarations that prior appropriation

rights were appurtenant to the land where the water was used and could only be transferred with the land to which they were appurtenant. Those restrictions have been replaced in modern law with schemes for voluntary water transfers to meet changing water needs, including for environmental purposes, and regulatory procedures aimed at protecting private and public interests that may be affected by the transfer of water rights. 2.17 In summary, although the prior appropriation doctrine allowed the allocation of water on the basis of beneficial use to any person, it did not share the water equitably in times of scarcity. The regime of property rights in the water resource was based on the somewhat arbitrary hierarchical principle of the time of appropriation. Being a property right, the appropriation was transferable, though early legislative intervention curtailed transferability by making the appropriation appurtenant to land to stem speculation in water property rights. The prior appropriation doctrine has thus provided for the development of water markets as a contemporary tool of water management.17

Significance of the common law models of rights 2.18 The two common law models have been significantly modified or, in some cases, wholly replaced by legislation since the nineteenth century. Nevertheless, these two models provide a foundation for understanding the development of the legislative [page 36] provisions, especially those establishing water property rights in contemporary Australian law. What we will see is that, although Australia adopted the riparian doctrine in the nineteenth century, important elements of the prior appropriation doctrine have been imported into the reformed regime of water access rights. The reformed regime is founded on two key features:

water resources planning to ensure environmental sustainability and security of consumptive water use; and tradable water access entitlements that confer proportional shares of the available water resource (the ‘consumptive pool’) that are adjusted equitably in times of scarcity.

Environmental sustainability 2.19 Writing in 1972, the year that marks the inception of the modern history of concern with sustainability,18 Clark and Renard did not explicitly articulate a concern with environmental sustainability. However, they spoke of ‘the universal dependence of all life on water’ and argued that this fact is another reason supporting the public or state control of water resources. The quotations at [2.2] to [2.4] above from the Council of Australian Governments’ agreements in 1994 and 2004 articulate a growing concern with environmental sustainability in the management of water resources, at the same time as advocating the development of a water market regime. It was agreed that there should be formal allocations of water to the environment, that water plans should secure ecological outcomes as well as resource security outcomes, and that governments have a responsibility in managing water resources ‘to achieve socially and economically beneficial outcomes in a manner that is environmentally sustainable’. In the past 20 years, the transformation of the old forms of water access rights into private and tradable proprietary entitlements has been predicated upon the establishment of water resource plans defining the community or collective interests in the environmentally sustainable sharing of water resources. What legal heritage was there to draw upon in designing this sustainability reform?

The absence of a common law concept in Australia

2.20 The Australian common law has not yet explicitly developed a concept of environmental sustainability. In respect of private property, the common law’s sanction for unsustainable practices affecting only one’s own property is the market; a wasted property can be expected to decline in market value. There are, of course, common law doctrines that require a person to manage their own property in such a way as not to cause harm to one’s neighbours — even to take positive steps to remove or reduce hazards on one’s own property lest they escape and cause harm to neighbours. However, there are no common law duties to avoid foreseeable ecological degradation by the use of one’s own [page 37] property even if it would, cumulatively with the actions of other property owners, cause a decline in public interest environmental values.19 In the context of water resources, there may have been incidental benefits for environmental conservation of water by the operation of private rights under the riparian doctrine,20 but the common law has not provided protection from the cumulative over-exploitation of common property water resources to the detriment of the natural ecosystems dependent upon them. Neither has it constrained governments from authorising the cumulative over-exploitation of water resources causing ecological harm. 2.21 In contrast, the American public trust doctrine (a common law doctrine) has expanded to protect the ecological values of publicly owned water resources against the exercise of governmental powers to authorise the exploitation of those resources. For our purposes, the most pertinent aspect of the doctrine is its application as a limit on the appropriation of water resources — that is, on the authorisation of the taking and use of water from a natural resource. This application of the doctrine is

founded in the celebrated case of National Audubon Society v Superior Court (the Mono Lake Case) (1983) 33 Cal 3d 419; 189 Cal Rptr 346.21 The question in the case was whether the public trust doctrine could apply to limit the appropriative water rights system administered under statutory authority by the California Water Resources Board. The case arose when the City of Los Angeles Department of Water and Power applied to divert more water from the unique Mono Lake in the arid mountain areas of central California. The city had been exercising rights to divert water from the lake since 1940, causing the lake’s level to drop and serious ecological consequences. The National Audubon Society objected to the application for increased diversion because of the likely impact on future commercial, recreational and scenic uses of the lake. The society also argued that, under the doctrine of public trust, even the city’s existing rights to divert water from streams entering the lake had to be reconsidered. The Water Resources Board denied this power and even that it could do anything to limit the grant of the new rights for domestic use, which were proclaimed by the legislation to be the highest use of water. The Supreme Court of California held that the State of California had a duty to consider the effect of the proposed diversions on public trust values (including the lake’s ecological values), and to avoid or minimise so far as feasible any harm to those values. There was a power to grant permits affirming the appropriation rights even though it may unavoidably harm the public trust values. However, the state had under the public trust doctrine a duty of continuing supervision of the existing water rights to ensure that environmental values were respected. The state retained a power to reconsider and adjust those rights to restore the public trust ecological values, especially as those values had not been considered on the initial grant of the rights in 1940. Except in rare instances, the grantee of the rights held them subject to the public trust. This meant that, although the rights were proprietary, there would be no compensation for their variation.

[page 38] The doctrine has been further applied in California,22 but has only been used in a similar fashion in one other case in another American state.23 2.22 There is no similar doctrine of public trust in Australia, despite arguments that there are some favourable judicial pronouncements about the authority of government to deal with public lands under statutory powers.24 There is, arguably, no need for such a common law doctrine in Australia because control of public lands and publicly owned natural resources is vested, constitutionally, in the various state legislatures: see chapter 5 at [5.6]. This means that all authority to deal with public natural resources must be found in legislation. There are also the ‘state vesting’ provisions of Australian water resources legislation, which declare the rights to the use, flow and control of most natural water resources to be vested in the states: see chapter 9. Recent attempts in Australia to argue for the application of a public trust doctrine have been ineffective.25

The legislative definition of sustainability 2.23 In Australian water resources law, the development of the legal concept of environmental sustainability has been left to the legislature. The principal legal tool developed to define and secure environmental sustainability is planning by the executive government. Water resource planning has been developing in Australia since the 1970s, initially as a non-statutory practice providing policy guidance to governmental decisions. Under the water law reforms, the planning process was to be given a statutory basis that would give greater security to ecological and public benefit outcomes as well as the resource security outcomes desired by water users. The plans were to define the legal limits for sustainable water resource management and to be the legal

foundations of the proprietary rights of the access entitlements tradable in regulated water markets. 2.24 There are questions about how statutory water resource planning will provide for both ecological sustainability and resource security outcomes. From the technical legal perspective, one has to consider general questions of the appropriate process, content and legal effect of plans, and those questions are reflected in the discussion in chapters 15, 16 and 17. However, there are also broader policy questions about what legislation for a water resource planning system can do. [page 39] 2.25 First, can legislation give a precise meaning to sustainability and mandate its achievement by executive government in the preparation and approval of the plans? Although [2] and [37] of the NWI, quoted at the beginning of this chapter, might suggest a political aspiration for such a statutory design, there are other paragraphs of the agreement (for example, [36]) that might support an argument that planning is the mechanism by which government makes trade-offs between competing outcomes to meet productive, environmental and social objectives and that sustainability is what the government says it is: see chapter 16, especially at [16.84]–[16.86]. Is ‘sustainability’ even a concept capable of guiding government decision making with legal precision? For many, it is a new concept that, when expressed as ‘sustainable development’, means whatever one wants it to mean. Bosselmann argues that, at least, the concept of ‘sustainability’ has a medieval European heritage and that it can be given a substantive meaning as ecological sustainability and endowed with the status of a paramount principle in the pursuit of sustainable development.26 If this is so, is there the scientific understanding of Australian water resources

— both surface and ground water — to devise appropriate management concepts and tools that are both reliably rigorous to have legal application in legislation or plans and adequately adaptable to be applicable to the varying forms of water resources across the country? For example, can we define ecological outcomes against which to monitor compliance with legal requirements for environmental water allocations? Further, is the concept of ‘consumptive pool’ capable of application to all forms of water resource? Finally, how useful are the sophisticated computer programs for integrated modelling in setting the parameters for water resource sustainability?27 Even if the legislatures can enact statutory objectives and governmental duties to pursue sustainability, and even if water industry experts can define adequate management concepts and tools for plans, there are still significant questions for the judicial application of the legal mandates, especially in the administrative law doctrines that inform the exercise of judicial review of governmental decision making. These doctrines have been explored to some extent in the early litigation about water resource plans, but one suspects that there are further issues to be resolved about the valid approval and implementation of water resources plans: see chapters 4 and 16. 2.26 A second important question about water resource planning for achieving environmental sustainability is how to transition from the old entitlement regimes that lacked significant planning foundations. In particular, how were we to deal with problems of over-allocation and overuse? What recognition was to be given to existing legal access rights and entitlements and their levels of historical use? Indeed, what was the legal nature of the former rights and entitlements, and would there be any duty to compensate the holders for reductions of their allocations on the transition to the new regime? The legal answers to these last two questions were made more difficult because water trading commenced before the transition to the new legal regimes.

[page 40] In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, the High Court gave opinions on the legal nature of the former New South Wales water licence rights to ground water and answered the question whether there is a duty to compensate holders of those rights for reductions of their allocations on the transition to the new NWI regime. The case is discussed more at [5.61], [10.3] and [12.2]. In essence, though, four of the seven judges (including one in dissent) held that the bore licences were property because they could be traded, while three judges did not need to determine that question. Six of the seven judges held that the considerable volumetric reduction in the plaintiffs’ licence allocations on transition to the NWI entitlements was not an ‘acquisition’ of property held by them, so there was no duty to compensate. 2.27 These questions on transition to a planned sustainable regime have been particularly important in the Murray-Darling Basin (‘MDB’), not only because each state’s past laws and practices have differed, but also because levels of over-allocation and overuse differed between the jurisdictions. State inaction in addressing these questions prompted the national parliament to enact the Water Act 2007 (Cth), amended in 2008, to establish the Murray-Darling Basin Authority as a national agency authorised to make a ‘Basin Plan’, an overarching water resource plan that would set the environmental sustainability limits within which the states must plan for and manage their water resources. On 22 November 2012, the Commonwealth Minister for Water adopted the Basin Plan,28 setting in train the formal process of reducing total diversions in the MDB from 13,623 to 10,873 gigalitres per year — a total reduction of 2,750 gigalitres per year. The procedures, content and effect of the Basin Plan are discussed in Part 4 of this book. For now, we note that attempts by MDB river irrigators to

challenge this sustainability framework were unsuccessful: Lee v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174.29 The various grounds of constitutional challenge to the Water Act 2007 are considered in chapter 5, but an interesting question about the character of the entitlements is relevant here. One of the plaintiffs’ key arguments was that Commonwealth Constitution s 10030 prevented the Commonwealth from making a law that would reduce the irrigators’ historical long-term reasonable use of the waters of the River Murray on their irrigation lands in Victoria and South Australia. They asserted various annual volumetric amounts of water usage for a range of horticultural crops as representing the ‘historical measure of use by horticulturalists that is reasonable and which accords with industry standards along the River Murray since the establishment of [page 41] irrigation districts [in] 1885 order to sustain irrigable agriculture’.31 They claimed that the Water Act and Basin Plan would infringe their constitutionally protected rights to this historical reasonable use of water and deplete the economic viability of their irrigation farmlands. The plaintiffs’ argument was never really tested in the court proceedings because the scope of s 100 was held not to apply to the legislative power exercised by the Commonwealth: 229 FCR 431 at [109]–[110] and [135]–[136]. But the argument was misconceived. It defied Australia’s adoption of the common law riparian tradition as opposed to the prior appropriation paradigm. It defied the Australian tradition of state-based statutory regimes that vested in the state most rights to use water resources until the state granted rights of access in accordance with statutory provisions. The state legislation retained one telling feature: public control of the distribution of water resources, especially in times of scarcity. As the High Court explained in ICM Agriculture Pty Ltd v

Commonwealth (2009) 240 CLR 140; [2009] HCA 51, albeit mainly in relation to ground water access licences, the state legislatures maintained sovereign control over the exact definition of water access rights through generations of evolving legislative provisions. Increasingly, the purposes of the state statutory regimes of water resources management have been to ensure the long-term sustainability of the systems, including the support of ecological characteristics. Interestingly, around the same time that the High Court was deciding that the reduction of water licence entitlements on transition to the NWI regime was not an ‘acquisition’ of property requiring compensation, the Commonwealth chose effectively to compensate all reduction of entitlements required by the Basin Plan. Between 2008 and 2010, the Commonwealth established two programs designed to recoup water licence entitlements for allocation to the environment.32 The ‘Restoring the Balance’ program facilitated the Commonwealth’s purchase of water entitlements from willing sellers. The ‘Sustainable Rural Water Use and Infrastructure Program’ channelled Commonwealth investment into projects that would improve and modernise irrigation infrastructure, with the water savings being shared by the Commonwealth and the irrigation proponent. The purchased and saved entitlements were then held by a new institution, the Commonwealth Environmental Water Holder, which was bound to apply the water to environmental purposes: see chapter 6 at [6.38]. The Commonwealth estimated that these methods of acquiring environmental water entitlements would recover enough water from consumptive use to cover the entire Basin Plan reduction of access entitlements: Lee v Commonwealth (2014) 229 FCR 431 at [59]–[61]. 2.28 A third important planning question is what level of flexibility should be given to government in amending the plans, and, correspondingly, what level of security should be accorded to

the access rights and entitlements? How are the risks of future adjustment [page 42] of access entitlements and environmental allocations to be assigned? Devising policy responses to these questions has been a difficult issue, but not just because of the transition to a new model of water access rights. The devastating effects of sustained drought in many parts of Australia has now manifested in the growing discussion of the adaptive capacity of water resources management under pressure from climate change,33 which has found common ground with similar emerging discussions in other countries.34 Who should bear the risk of reduced allocations that can, arguably, be traced to anthropocentric emissions of greenhouse gases — albeit on a global scale?

1.

S D Clark and I A Renard, The Law of Allocation of Water for Private Use, Australian Water Resources Council Research Project, vol. 1, The Framework of Australian Water Legislation and Private Rights, 1972, pp 27–28.

2.

Council of Australian Governments meeting, February 1994, Communiqué, Attachment A, available at the website of the National Competition Council relating to National Competition Policy: , p 103. A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): .

3. 4.

5.

6. 7.

V Shiva, Water War: Privatization, Pollution and Profit, South End Press, Cambridge MA, 2002; M Barlow and T Clark, Blue Gold: The Battle Against Corporate Theft of the World’s Water, Earthscan, London, 2002; and M Barlow, Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water, Black Inc, Melbourne, 2007. T Honore, Making Law Bind: Essays Legal and Philosophical, Clarendon Press, Oxford, 1987, Chapter 8, describes 11 standard incidents of ownership that may be more or less present in a set of proprietary rights. S J Hepburn, Principles of Property Law, 2nd edn, Cavendish, Avalon, NSW, 2001, pp 2–3. D E Fisher, Water Law, LBC, Sydney, 2000, p 64. See also Mason v Hill (1833) 110 ER 692 at 700.

8.

The example of a public right to fish in tidal water was discussed by the High Court of Australia in Harper v The Minister for Sea Fisheries (Tasmania) (1989) 168 CLR 324 at 329 ff.

9.

There are numerous accounts of the doctrines in legal literature of England, Canada, the United States of America and Australia. This brief comparison of the two doctrines draws on Clark and Renard, 1972; B H Thompson, J D Leshy and R H Abrams, Legal Control of Water Resources: Cases and Materials, 5th edn, Thomson Reuters, St Paul, Minnesota, 2013, Chapters 2 and 3; and Commonwealth of Australia, Productivity Commission, Water Rights Arrangements in Australia and Overseas, October 2003, pp 40–42, available from the Productivity Commission website: and search ‘water rights arrangements’. See also D H Getches, Water Law in a Nutshell, 3rd edn, West Publishing Co, 1997 and the alternative sophisticated historical analysis of C M Rose, ‘Energy and Efficiency in the Realignment of Common Law Water Rights’ (1990) 19 J Legal Stud 261. R Bartlett, ‘Transferability of Water Rights in Australia and the United States’ in R Bartlett, A Gardner and S Mascher, Water Law in Western Australia: Comparative Studies and Options for Reform, The Centre for Commercial and Resources Law, The University of Western Australia, 1997, pp 94–97.

10.

11. 12.

See also Clark and Renard, 1972, pp 52–55. Fisher, 2000, p 78.

13.

This account is taken mainly from Thompson, Leshy, and Abrams, 2013, Chapter 3, pp 168–173. The authors describe the doctrine explained here as a ‘thumbnail sketch’ of the classic doctrine, which is now encrusted with considerable modification in various jurisdictions, especially by statute. See also Getches, 1997. Commonwealth of Australia, Productivity Commission, Water Rights Arrangements in Australia and Overseas, October 2003, pp 41–42. In some American states (eg California), both doctrines were adopted: Bartlett, 1997, pp 58–61.

14.

15. 16.

Bartlett, 1997, p 98 ff. Thompson, Leshy, and Abrams, 2013, pp 301–304.

17. 18.

Ibid, p 303 ff. K Bosselmann, The Principle of Sustainability: Transforming Law and Governance, Ashgate, Surrey, 2008, p 25.

19.

A Gardner, ‘The Duty of Care for Sustainable Land Management’ (1998) 5(1) AJNRLP 29 at 31. In relation to ground water and diffused surface water, the common law applied a rule of capture and no principle of mutuality: see [8.33] ff and [8.41] ff.

20. 21. 22.

The case is considered by Thompson, Leshy and Abrams, 2013, p 674 ff. J Sax, ‘Bringing an Ecological Perspective to Natural Resources Law: Fulfilling the Promise of the Public Trust’ in L J Macdonnell and S Bates (eds), Natural Resources Policy and Law, University of Colorado School of Law, Boulder, 1993, pp 148–161. Sax describes how, in the EBMUD case, the court supervised a process of scientific research of a proposed water diversion to determine an environmental flow regime that was subject only to judicial modification.

23.

W Andreen, ‘The evolving contours of water law in the United States: …’ (2006) 23

24. 25.

EPLJ 5 at 16; Thompson, Leshy, and Abrams, 2013, p 685 ff. See also S Leonhardt and J Spuhler, ‘The Public Trust Doctrine: What it is, where it came from, and why Colorado does not (and should not) have one’ (2013) 16 U Denv Water Law Rev 47. T Bonyhady, ‘A Usable Past: The Public Trust in Australia’ (1995) 12(5) EPLJ 329. Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning (NSW) [2016] NSWLEC 6 at [183]–[187]; Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171 at [43]; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138.

26. 27.

Bosselmann, 2008, Chapter 1. A Gardner, R Blakers and M Hartley, ‘Legal Scenarios for Integrated Water Resources Modelling’ (2014) 17 AJNRLP 1.

28.

Water Act 2007 (Cth) s 44; Basin Plan 2012: . The facts are more fully explained by North J at first instance: Lee v Commonwealth (2014) 220 FCR 300; [2014] FCA 432. The High Court refused leave to appeal: Lee v Commonwealth [2015] HCATrans 123.

29.

30.

31.

32. 33.

34.

Section 100 restricts the Commonwealth from making a law or regulation of trade and commerce that abridges the right of a state, or the residents therein, to the reasonable use of waters of rivers for conservation or irrigation. A Gardner, ‘Lee and Gropler v Commonwealth and Murray-Darling Basin Authority — reflection on a conception of Australian water access rights’ (2013) 28(3) Australian Environment Review 517, citing the Statement of Claim at [20]. The Federal Court explained the two programs in Lee v Commonwealth (2014) 229 FCR 431 at [55]–[58]. A Foerster, ‘Water Law: adapting to climate change in south-eastern Australia?’ in M Kidd, L Feris, T Murombo and A Iza, Water and the Law: Towards Sustainability, Edward Elgar, 2014. M Bennett and A Gardner, ‘Regulating Groundwater in a Drying Climate: Lessons from South West Australia’ (2015) 33 JERL 293, available at . B Cosens, ‘Water law reform in the face of climate change: Learning from drought in Australia and the western United States’ (2016) 33 EPLJ 372.

[page 43]

3 NATIONAL WATER LAW REFORM POLICY Evolving perceptions of the constitutional reality 3.1 Until the 1980s, water resources law and policy was mainly state-based, especially with respect to the conferral and regulation of water access rights. The Commonwealth Parliament could have legislated with respect to navigation and shipping on inland rivers, but that power was confined by the constitutional preservation of ‘the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation’.1 The constitutional reality is that the states have broad and direct governmental authority to manage water resources and the Commonwealth has limited authority to involve itself in water resources management: see chapter 5. 3.2 This view of the constitutional reality is reflected, for example, in the limited role that the Commonwealth played during the 1980s and ’90s in implementation of the 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, the ‘Ramsar Convention’.2 The Commonwealth used policy instruments and financial assistance to facilitate state implementation of the convention obligations,

nominating wetlands for listing under the Convention at the request of the states and only directly managing wetlands that were on Commonwealth lands. The Environmental Protection (Impact of Proposals) Act 1974 (Cth) was used to consider the impacts of development proposals on wetlands, and the Commonwealth heritage and endangered species legislation could also affect wetlands.3 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) strengthened the Commonwealth’s capacity to protect wetlands. It provided for Commonwealth designation of wetlands for Ramsar Convention listing and required Commonwealth environmental assessment and approval of actions that may significantly affect listed wetlands, but required only Commonwealth cooperation with the states for the general management of all wetlands within the States: see chapter 14. [page 44] 3.3 Despite the perceptions of the constitutional reality, there was an episodic evolution of Commonwealth involvement in the development of national water policy in the period 1994–2013, resulting in Commonwealth leadership of the development of national water policy. Three enactments were significant statutory indicators of that leadership: the National Water Commission Act 2004 (Cth), formalising oversight of national water reform policy, the Water Act 2007 (Cth), taking oversight control of water access rights in the Murray-Darling Basin (‘MDB’), and the Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth), creating the ‘water trigger’ for Commonwealth approval of large coal mines and coal seam gas projects that significantly affect a water resource. Also, from 2006, water became a regular Commonwealth ministerial portfolio,4 mostly in conjunction with environment until 2015, when it was joined with the agriculture portfolio.5

Evolving concerns of the Commonwealth 3.4 The MDB has been the primary focus of both Commonwealth and interstate attention to management of the water resources for decades. The Commonwealth and the three main MDB states (New South Wales, South Australia and Victoria) made the River Murray Waters Agreement 1914 to share the costs of works and ongoing maintenance costs as well as the waters of the River Murray and its tributaries.6 However, the 1914 Agreement was confined in scope to the main channel of the River Murray and the River Murray Commission that administered the Agreement was confined in its independence because the stateappointed Commissioners felt accountable to the governments that appointed them. The management of the water resources of the River Murray and the rights to take and use those resources were still very much ruled by state law and policy. Although there were amendments to the 1914 Agreement in 1948 and 1958 that secured a better share of the River Murray’s waters for South Australia, there were serious problems emerging with the health of the river by the 1970s, principal among them the level of salinity in the water. This was again a major concern for South Australia, which depended on the River Murray for much of its public water supply as well as for irrigation. There was a growing need to manage land use and development in the catchment to protect water quality. There was also increasing concern about over-allocation of the water resource undermining security of water entitlements and the health of the riverine ecosystem. These issues led to the Commonwealth, New South Wales, South Australia and Victoria making the new MurrayDarling Basin Agreement [page 45] in 1987, which was executed in amended form in 1992 and

ratified by legislation in each participating jurisdiction (‘the 1992 MDB Agreement’).7 3.5 As the preamble to that Agreement states, the ‘Governments wish to promote and co-ordinate effective planning and management for the equitable efficient and sustainable use of the water, land and environmental resources of the Murray-Darling Basin’. The 1992 Agreement established the cooperative institutional basis for managing the quantity and quality of water resources in the whole catchment, the authorisation for the construction, operation and maintenance of works, and the sharing of waters between the states, including water accounting. It also created the procedure for the making of new Schedules that would amend the Agreement itself, authorising new works and measures. This process was pursued to make Queensland a party to the Agreement (Schedule D, 1996), to authorise a ‘Salinity and Drainage Strategy’ (Schedule C, 1988),8 to create a protocol for the interstate transfer of water entitlements (Schedule E, 1998) and to impose a ‘cap’ on water allocations (Schedule F, adopted in 1997 and confirmed in 2000). The Australian Capital Territory joined the Agreement under a Memorandum of Understanding in March 1998. The institutional arrangements created by the 1992 MDB Agreement are discussed in chapter 7. The Schedule F Cap is discussed in chapters 14 and 16. In many respects, the policy generated in the MDB has been the prototype of that developed and advocated for broader national application, albeit that implementation of the MDB policy has mainly been through the administration of state law. As the policy developed, the 1992 MDB Agreement itself became inconsistent with aspects of the national policy and its institutional framework became inadequate to meet the growing challenges of managing the MDB. When the Commonwealth and the MDB States legislated to give the Commonwealth oversight control of the MDB in 2008, they also adopted a new 2008 MDB Agreement: see chapter 7 at [7.16] ff.

3.6 Another specific involvement of the Commonwealth in the law and policy of water resources management concerned the Snowy Mountains Hydro-Electric Scheme (‘Snowy Mountains Scheme’).9 The Scheme involved significant control, diversion and storage of waters, and was initially authorised under Commonwealth legislation enacted in 1949 in purported exercise of the defence power.10 However, because of the broader water resource management interests of New South Wales and Victoria in the Scheme, the legal and policy foundations were broadened by agreement between the Commonwealth and the two states in 1957, which led to the enactment of supporting legislation by the two states.11 The management of the water resources of the area by the Snowy Mountains Hydroelectric Authority, an instrumentality of the Commonwealth, has [page 46] since been superseded by the transfer of the assets of the Authority to the Snowy Hydro Company, a corporation owned by the three jurisdictions and subject mainly to the water resources management laws of New South Wales. The only direct interest retained by the Commonwealth in the Snowy Mountains Scheme is its minority shareholding in the Snowy Hydro Corporation and its legislative participation in the management of the MDB, which are discussed, respectively, in chapter 7 and Part 4. 3.7 Looking beyond the MDB, there are various examples of Commonwealth political interest in water resources management in recent decades, mainly in providing funding support for water resources development by the states.12 However, the first truly important contemporary national policy pronouncement came with the National Strategy for Ecologically Sustainable Development (‘NSESD’) endorsed by the Council of Australian Governments (‘CoAG’) in 1992.13 Consistently with the theme of

ecologically sustainable development, section 18 of the NSESD stated that the challenge for water resource management is: To develop and manage in an integrated way, the quality and quantity of surface and ground water resources, and to develop mechanisms for water resource management which aim to maintain ecological systems while meeting economic, social and community needs.

To meet this challenge, section 18 of the NSESD proposes a strategic approach with various aspects, including development decisions impacting on water resources being based on acceptable water quality and quantity criteria, more efficient use of water, allocating water for stream-flow and other environmental uses and pricing policies aligned to the real value of the resource. Various more specific measures are also listed. The notable ones in relation to water rights are:14 integrated catchment management; effective public participation in developing pricing and allocation policies and management measures; legislative and policy frameworks for the protection of aquatic ecosystems; improved management of water allocations to ensure maintenance of in-stream and floodplain environmental values; consideration of the whole hydrological cycle in water management planning, including stormwater, waste waters and effluents; improved water markets and introducing more comprehensive systems of transferable water entitlements; and institutional reform of water agencies. [page 47] The CoAG also agreed to the preparation of a report for their first meeting in 1993 ‘on the current state of play in both urban

and rural water use, as a basis for considering the need for greater impetus to be given to reform in key areas’.

The 1994 CoAG Water Reform Framework 3.8 On 25 February 1994, CoAG agreed on ‘a strategic framework to achieve an efficient and sustainable water industry’: the 1994 CoAG Water Reform Framework Agreement.15 The core elements of that strategic framework included: water pricing principles of consumption-based pricing, full-cost recovery and funding of future asset refurbishment, and removal or disclosure of cross subsidies; the implementation of comprehensive systems of water allocation incorporating: — the creation of property rights in water separate from land titles and clearly specifying the ownership, volume, reliability, transferability and, if appropriate, quality, — formal allocations or entitlements of water for the environment as a ‘legitimate user of water’, using the best scientific information available to identify the water needs required to maintain the health and viability of river systems and ground water basins, — addressing over-allocation to enhance or restore the health of river systems, and — ensuring that future water resource developments are appropriately assessed to provide for environmental requirements before any harvesting of water resources; the institution of trade in water rights, including interstate trade, once water entitlement arrangements have been settled; institutional reform to: — separate the administration of water resource management and water services provision (the latter to be performed on a commercial basis), and

—

implement integrated natural resources management (integrated catchment management); programs of public consultation and education; and the development of the National Water Quality Management Strategy, including for better use of wastewater and stormwater, and of catchment management to protect water resource values. 3.9 The implementation of the 1994 Framework Agreement was tied to the National Competition Policy in April 1995 when CoAG agreed to make the second tranche of the Commonwealth’s National Competition Policy payments to the states in 1999–2000 [page 48] dependent on the achievement of water policy goals.16 The agreement on these payments recognised that the states would forgo revenue from governmental regulatory and service monopolies by implementing the institutional reforms of the national competition and water policies. This linkage of the competition and water policy reforms gave impetus to the states’ efforts to achieve key elements of these reforms. With the exception of Victoria and the Northern Territory,17 who had already reformed their water legislation just prior to 1994, each of the Australian states and territories enacted major reforms of their water legislation by 2000.18 The principal types of reforms achieved were separation of the functions of water delivery from regulation, separation of water access entitlements from land titles and explicit provision for environmental water. The National Competition Council (‘NCC’) undertook assessments of the states’ progress in implementing the 1994 Framework Agreement, certifying each state’s entitlement to the National Competition Policy payments.19 Some of the Framework Agreement principles were further articulated by these NCC assessments. However, by 2003, the pressure was mounting for another round of reform

because of the increased demands for water, an improving understanding of the management of surface and ground water systems and the growing awareness of the requirements of effective water markets.

The 2004 Intergovernmental Agreement on a National Water Initiative 3.10 The 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’)20 relaunched the efforts to define and manage environmental water allocations and water access entitlements. It renewed the parties’ commitment to the 1994 Framework Agreement and set a new schedule of actions with the objective of providing ‘greater certainty for investment and the environment’.21 Tasmania and Western Australia did not sign the NWI Agreement in June 2004 but have since agreed to participate, Tasmania in June 2005 and Western Australia in 2006. [page 49] On the same day in 2004 as the NWI was made, the Commonwealth, New South Wales, South Australia, Victoria and the Australian Capital Territory also made the Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray-Darling Basin — the ‘Living Murray Agreement’.22 Under this agreement, the parties committed to provide new governmental funding (jointly $500 million) over five years for measures to recover and manage 500GL of water annually for the achievement of environmental objectives for six significant ecological sites in the MDB. The measures eligible for funding included investment in rural water infrastructure, investment in infrastructure or behavioural change to reduce urban consumption, purchase of water rights by market-

based mechanisms and regulatory measures. The delivery of the recovered environmental water was to be consistent with a new Basin Environmental Watering Plan, which was to be approved by the MDB Ministerial Council. The arrangements established by the Living Murray Agreement are now (2016) administered as the Living Murray program by the Murray Darling Basin Authority.23 3.11 Implementing the NWI is a continuing huge task. Initially, the Natural Resources Management Ministerial Council (‘NRMMC’)24 was responsible for overseeing that implementation on advice from the National Water Commission (‘NWC’).25 The initial implementation steps were a baseline assessment of water resources and governance arrangements by the NWC,26 and the preparation by each state of ‘implementation plans’ that were accredited by the NWC and made publicly available.27 The NWC completed its first assessment of the implementation of the NWI in 200728 and its final triennial assessment in 2014.29 The NWC was closed in late 2014 and formally abolished in 2015, [page 50] with the function of assessing implementation of the NWI conferred on the Productivity Commission.30 The next triennial assessment is due in 2017. 3.12 In conducting the assessment, the Productivity Commission is directed to have regard to the NWI objectives.31 Implementation of the Agreement: … will result in a nationally-compatible, market, regulatory and planning-based system of managing surface and ground water resources for rural and urban use that optimises economic, social and environmental outcomes by achieving the following: (i)

clear and nationally-compatible characteristics for secure water access entitlements;

(ii) (iii)

transparent, statutory-based water planning; statutory provision for environmental and other public benefit outcomes,

and improved environmental management practices; (iv) (v) (vi) (vii)

complete the return of all currently allocated or overused systems to environmentally-sustainable levels of extraction; progressive removal of barriers to trade in water …, with an open trading market to be in place; clarity around the assignment of risk arising from future changes in the availability of water for the consumptive pool; water accounting which is able to meet the information needs of different water systems in respect to planning, monitoring, trading and environmental management and on-farm management;

(viii) policy settings which facilitate water use efficiency and innovation in urban and rural areas; (ix) addressing future adjustment issues that may impact on water users and communities; and (x)

recognition of the connectivity between surface and ground water resources and connected systems managed as a single resource.32

Throughout this book, we make relevant references to the policy prescriptions of the NWI, so there is no need to discuss them in any detail here. However, it is pertinent to note four policy developments in the NWI compared to the 1994 Framework Agreement that were significant for the legislative definition of water access rights. 3.13 The first area of significant policy development related to water access entitlements and environmental allocations. A water access entitlement for consumptive use should be described as a ‘perpetual or open-ended share of the consumptive pool of a specified water resource, as determined by the relevant water plan’ and the periodic ‘allocation [page 51] of water’ to the entitlement should be made consistently with the water plan.33 Water planning should provide for:34 secure ecological outcomes by describing the environmental and

other public benefit outcomes and the management arrangements to achieve those outcomes; and resource security outcomes by determining the shares in the consumptive pool and the rules to allocate water during the life of the plan. The prescription of the essential attributes of tradable water access entitlements are elaborated and, significantly, include a new recognition of the need for a publicly accessible register of water access entitlements.35 Water allocated under a plan for environmental and other public benefit outcomes should be given statutory recognition and have, at least, the same degree of security as water access entitlements.36 There was a commitment to addressing over-allocated systems and there was prescribed a formula for assigning the risk of future reductions in water access entitlements.37 Water planning should also take account of native title interests in water and the legislation should provide for indigenous access to water resources.38 3.14 The second area of significant policy development in the NWI was the greater prescription of measures to facilitate the operation of efficient water markets and opportunities for trading, within and between states and territories, where water systems are physically shared or hydrologically connected.39 In particular, this required the states to establish compatible institutional and regulatory arrangements that manage the jurisdictional differences between entitlement characteristics (for example, reliability of periodic allocations), supply losses, supply source constraints associated with infrastructure, consistent pricing policies and the requirements of the MDB Cap.40 There were also commitments to remove barriers to permanent trade out of water irrigation areas up to an annual threshold limit of 4 per cent of the total water entitlement of that area.41 Another commitment was to study the feasibility of establishing market mechanisms such as tradable salinity and pollution credits to provide incentives for investment in water use efficiency and for dealing with environmental

externalities.42 All of these compatible institutional arrangements must coalesce around a compatible, [page 52] publicly accessible and reliable system of water access entitlement registers that are essential to the provision of good information needed for an efficient market.43 3.15 The third area of significant policy development in the NWI related to water pricing.44 The goals of the water pricing reforms included facilitating the efficient functioning of water markets and applying the principles of user-pays and pricing transparency in the recovery of the costs of water planning and management and environmental externalities. In addition, the states agreed to use independent bodies to set or review prices in accordance with NWI principles. 3.16 The fourth area of significant policy development in the NWI related to water resource accounting. The purpose of water resource accounting is ‘to ensure that adequate measurement, monitoring and reporting systems are in place in all jurisdictions, to support public and investor confidence in the amount of water being traded, extracted for consumptive use, and recovered and managed for environmental and other public benefit outcomes’.45 The parties agreed to integrate the accounting of ground and surface water systems that closely interact,46 to develop a compatible register of new and existing environmental water and annual reporting arrangements that include environmental water47 and to adopt the more widespread use of metering.48 3.17 The states and territories are responsible for implementing the NWI in their own jurisdictions, consistently with the implementation plans.49 The states and territories agreed to modify their existing legislation and administrative regimes to

ensure that their water access entitlements and planning frameworks incorporate the features described in the NWI.50 Relevant parties were to review existing cross-jurisdictional water sharing agreements, including the 1992 MDB Agreement, to ensure their consistency with the NWI.51 The Commonwealth would assist in the implementation ‘by working with the states and territories’. What means were employed to enforce compliance with the NWI, either at the instance of the Commonwealth or at the instance of a state? The NWI Agreement is not capable of creating binding legal relations between the states and territories themselves, or between any of them and the Commonwealth.52 In many respects, it was only an agreement to agree on future actions, with advisory reporting by the NWC to inform political oversight by the Natural Resources Management Ministerial Council and CoAG.53 Ultimately, it is not possible for the respective heads of executive governments [page 53] to bind their respective legislatures to amend their laws. The NWI is not an agreement that a court of law would enforce. What means, then, were there to induce compliance? The parties agreed that the NWC would do the scheduled 2005 assessment of the National Competition Policy water reform commitments,54 but they did not agree to a continuation beyond 2005 of the National Competition Policy financial incentives that drove the implementation of the 1994 Framework Agreement. 3.18 The National Water Commission Act 2004 (Cth) did establish the Australian Water Fund Account, which was to provide financial assistance awarded by the Minister for particular projects relating to Australia’s water resources and to pay for the performance of the NWC’s functions.55 While the states could

apply for project funding from the Australian Water Fund, applications may be made by any party. These funds were not, by the Act, linked directly to the states’ performance of the NWI obligations, and there was not any link between the NWI and the National Competition Policy.56 Nevertheless, the Commonwealth Minister could attach to the grant of Australian Water Fund monies conditions that required implementation of some aspects of the NWI. One such example was the funding agreement made in 2005 between the Commonwealth (represented by the NWC) and New South Wales to make structural adjustment payments to water entitlement holders on reduction of their entitlement volumes on transition to NWI consistent water sharing plans.57 Further, the MDB jurisdictions (except Queensland) may have had an added financial incentive to implement the NWI in order to obtain the promised Commonwealth share of funding under the Living Murray Agreement.58 The main sanction for implementation of the NWI has been political pressure informed by NWC public reporting on the implementation assessment.59 At least, the NWI and the National Water Commission Act 2004 (Cth) provided framework for a sophisticated political and public assessment of the progress in implementing the NWI. [page 54] However, that was not enough to secure effective implementation of the NWI in the face of prolonged severe drought and a burgeoning awareness of climate change that provoked, for the first time really, the significant assertion of Commonwealth power to manage water resources, especially in the MDB.

The 2007 National Plan for Water Security

3.19 In January 2007, Prime Minister Howard announced the Commonwealth’s National Plan for Water Security, which promised $10 billion of Commonwealth funding to implement a 10-point plan to improve water use efficiency and address overallocation of water. Distilled to its essence, the Prime Minister promised: national government funding of public and private works to upgrade irrigation infrastructure, including metering, in return for the Commonwealth sharing the water savings on a 50:50 basis with irrigators — the Commonwealth’s share going to the environment; addressing water over-allocation in the MDB by: — a new set of governance arrangements in the MDB by which the Commonwealth would set and administer a ‘sustainable cap’ on the taking and use of surface and ground water, — a $3 billion program of water entitlement buy-back and structural adjustment payments to assist unviable irrigators to exit the industry, and — a $500 million program of engineering works to improve the efficiency of river operations and storages in the MDB; and other national measures aimed at restoring the Great Artesian Basin, expanding the role of the Bureau of Meteorology to provide water information, and an investigation of future land and water development in northern Australia. The implementation of the plan in the MDB, especially the establishment of the new governance arrangements for intrastate rivers, required the agreement of the MDB states and their referral of constitutional powers to support the proposed Commonwealth legislation. Victoria held out against the Commonwealth’s proposals, and the Water Act 2007 (Cth), which was assented to on 3 September 2007, did not rely on the referral of state powers. The objectives of the Act are discussed in chapter 4. In essence, though, the Act’s policy purpose was to secure key elements of the

NWI reforms in respect of the MDB. The Act does this by establishing a new Commonwealth agency, the Murray-Darling Basin Authority (MDBA), to prepare for the Commonwealth Minister’s approval a ‘Basin Plan’ setting sustainable diversion limits and by requiring state water management plans to comply with the Basin Plan. However, the implementation of the Basin Plan would still depend on the functioning of the 1992 MDB Agreement and its administrative machinery. The states’ water entitlement system would continue to be administered by the states under new market guidelines created and administered by the Australian Competition and Consumer Commission (‘ACCC’). [page 55]

The 2008 Agreement on Murray-Darling Basin Reform 3.20 Following a national election in November 2007, the new Commonwealth Government set about renegotiating the Howard Government’s package with respect to the MDB, with the rather unique advantage of having Labor Party governments in power in all jurisdictions. In July 2008, the six MDB jurisdictions (the Commonwealth, New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory) signed the Agreement on Murray-Darling Basin Reform (the 2008 MDB Reform Agreement).60 In many ways, the 2008 MDB Reform Agreement adopted the existing features of the Water Act 2007 (Cth) in respect of the MDB; the reforms aimed to secure the NWI by the MDBA preparing the Basin Plan for approval by the Commonwealth Minister for Water. The significant new elements were that the 2008 MDB Reform Agreement replaced the former 1992 MDB Agreement machinery with a new Ministerial Council and supporting committees and the MDBA, as a Commonwealth agency, took over the operation of the River Murray system. The

Basin Plan would still set the sustainable diversion limits, but there was added provision for ‘critical human needs water’ subject to there being no alteration of the states’ water shares without the unanimous agreement of the new Ministerial Council. There were revisions to the ACCC’s water market guidance functions and the Commonwealth pledged to take on the liabilities of the Basin States for future reductions of diversion limits that were due to the requirements of the Basin Plan responding to new knowledge.61 The 2008 MDB Reform Agreement was implemented by the Commonwealth Parliament amending the Water Act 2007 (Cth)62 and each of the Basin States legislating to refer the relevant constitutional powers.63 3.21 The 2008 MDB Reform Agreement also provided the administrative arrangements for dispensing the new Commonwealth Government’s enhanced funding program, ‘Water for the Future’ — worth $12.9 billion nationally.64 In respect of the MDB elements, the objectives of the Commonwealth’s funding were, supposedly, to implement watersaving infrastructure projects, return water to the environment and adapt to climate change.65 Certain Basin State priority projects were to be funded pursuant to the 2008 MDB Reform Agreement, though subject to due diligence assessments against various [page 56] criteria that include the delivery of ‘substantial and lasting returns of water to the environment to secure real improvements in river health’ and consistency with the NWI.66 Further, once the funding arrangements for projects were agreed, the progress payments were to be made subject to the Basin State achieving agreed progress and transferring to the Commonwealth at least 50 per cent of the water savings, which would be held by a new institution established under the Water Act 2007 (Cth) — the

Commonwealth Environmental Water Holder. In other words, the Commonwealth returned, to some extent, to requiring implementation of national water policy reforms in return for Commonwealth funding. 3.22 The ‘Millennium Drought’ broke in late 2009–early 2010 with the onset of a ‘La Niña’ pattern during 2010 and 2011, which saw Australia experience its wettest two-year period on record except for the southwest of Australia.67 While some were thinking about how to adapt to more severe drought and the spectre of climate change,68 there is little doubt that the breaking of the severe drought reset community perspectives for policy discussions in the making of the MDB Basin Plan (approved by the Commonwealth Minister for Water in November 2012) and, after a change of government at the 2013 national election, reset the trend of political attitudes in national water policy debate. The notable trends and issues in that debate from 2010 were a strengthening of public funding for investment in water use efficiency measures for irrigation infrastructure and environmental water delivery as a means of retaining water for economic and consumptive use in rural communities;69 growing attention to the impact of the mining and coal seam gas industries on groundwater systems,70 to water pricing principles and developing alternative water sources (especially water recycling, storm water capture and [page 57] ground-water recharge for urban water supply)71 and to indigenous peoples’ access to water resources;72 and proposals for new infrastructure for water resources development, especially in northern Australia.73 However, with the exception of the creation of the ‘water trigger’ in 2013 (see [3.3] above), the abolition of the National Water Commission in 2014 and the transfer of the

ministerial water portfolio to a Minister for Agriculture and Water Resources in 2015, there has been no significant policy or institutional change since the 2008 amendments to the Water Act (Cth). Indeed, recent (2015 and 2016) national government documents reaffirm the enduring value of the NWI as the essential model for Australian water resources management and ongoing legislative reform.74

1.

Commonwealth of Australia Constitution Act 1900 s 98, confirming the Commonwealth Parliament’s power to legislate with respect to navigation and shipping in exercising its legislative powers to regulate interstate trade and commerce under s 51(i), and s 100, preserving the states’ rights to the reasonable use of the waters of rivers.

2.

M Comino, ‘The Ramsar Convention in Australia Implementation Framework’ (1997) 14 EPLJ 89 at 92–94. Ibid.

3. 4.

5. 6. 7.

8. 9.

—

Improving

the

Australian Government, National Water Commission, Distilled, February 2006, ‘Commissioners welcome new parliamentary secretary’: archived website of the National Water Commission: . Commonwealth of Australia, Minister for Agriculture and Water Resources: (November 2016). S D Clark, ‘The Murray-Darling Basin: Divided Power, Co-operative Solutions’ (2003) 22 Australian Resources and Energy Law Journal 67. Murray-Darling Basin Act 1993 (Cth), containing the Agreement as Schedule 1. The preamble explains the history of the Agreement. See also the state legislation: Murray-Darling Basin Act 1992 (NSW), Murray-Darling Basin Act 1993 (SA) and Murray-Darling Basin Act 1993 (Vic). Schedule C to the 1992 Agreement adopted the 1988 Salinity and Drainage Strategy. D E Fisher, Water Law, LBC Information Services, 2000, pp 56–59.

10. 11.

Snowy Mountains Hydro-electric Power Act 1949 (Cth). Snowy Mountains Hydro-electric Agreements Act 1958 (NSW) and Snowy Mountains Hydroelectric Agreements Act 1958 (Vic).

12.

Fisher, Water Law, pp 42–46. See also, Parliament of the Commonwealth of Australia, Senate Select Committee on Water Pollution, Report: Water Pollution in Australia, 1970, and Senate Standing Committee on Environment, Recreation and the Arts, Water Resources — Toxic Algae, December 1993. Commonwealth of Australia, National Strategy for Ecologically Sustainable Development, December 1992.

13. 14.

NSESD, section 18, pp 72–74.

15.

CoAG meeting, February 1994, Communiqué, Attachment A, available at the website of the National Competition Council relating to National Competition Policy: , p 103.

16.

CoAG Agreement to Implement the National Competition Policy and Related Reforms, 11 April 1995; Attachment A to the Communiqué of the CoAG meeting, available at the website of the National Competition Council relating to National Competition Policy: , p 109. Water Act 1989 (Vic) and Water Act 1992 (NT).

17. 18.

19.

20.

21. 22.

23.

24.

25.

Water Resources Act 1998 (ACT), Water Management Act 2000 (NSW), Water Act 2000 (Qld), Water Resources Act 1997 (SA), Water Management Act 1999 (Tas) and Rights in Water and Irrigation Amendment Act 2000 (WA). NCC, National Competition Policy website, ‘Major Areas of Reform’, ‘Water’: and follow links to ‘Publication search’, ‘Document Types’ and ‘NCC assessment report’. A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): . See also D Connell, S Dovers and R Quentin Grafton, ‘A Critical Analysis of the National Water Initiative’ (2005) 10(1) Australasian Journal of Natural Resources Law and Policy 81. NWI para 5. A copy of the Living Murray Agreement is available on the Australian Government Web Archive, Council of Australian Governments’ Meeting 25 June 2004: . See also Connell, Dovers and Quentin Grafton, ‘A Critical Analysis of the National Water Initiative’ at 96–97. Australian Government, Murray-Darling Basin Authority: , and follow links to ‘Managing water’, ‘Environmental water’ and ‘Delivering environmental water’. The NRMMC was abolished in late 2013 when the Council of Australian Governments (‘CoAG’) ‘streamlined’ the system of national ministerial councils, reducing 22 councils to eight: Council of Australian Governments, ‘COAG Councils’: . There are no councils now that have specific natural resources and environmental management responsibilities, though the CoAG council system maintains a ‘Reform Agenda’ for ‘Water, Climate Change and the Environment’: . NWI paras 18 and 19. The National Water Commission Act 2004 (Cth) established the NWC, which is discussed in chapter 6 at [6.31]–[6.32].

26. 27.

NWI para 105(i). NWI paras 8–10 and 105. See also National Water Commission Act 2004 (Cth) s 7(2). The accredited Implementation Agreements can be found on the archived website of the NWC: .

28.

NWI paras 106 and 107. National Water Commission Act 2004 (Cth) s 7(2)(h). NWC, National Water Initiative: First Biennial Assessment of Progress in Implementation, 2007, available from the archived website of the NWC: .

29.

NWC, National Water Reform Assessment 2014, available from the archived NWC website homepage: .

30.

National Water Commission (Abolition) Act 2015 (Cth), amending the Productivity Commission Act 1998 and inserting a new Part 3, ss 87–89 in the Water Act 2007 (Cth). Water Act 2007 (Cth) s 88(3B).

31. 32. 33.

NWI para 23. The words in italics are defined in Schedule B(i) of the NWI Agreement. NWI paras 28–29.

34. 35.

NWI para 36. NWI paras 31–32.

36. 37.

NWI para 35. NWI paras 46–51.

38. 39.

NWI paras 52–54. NWI para 58.

40. 41.

NWI paras 59–60. NWI paras 60 and 63.

42.

43.

NWI para 61. ‘Environmental externalities’ may be defined as the unintended and uncosted adverse effects on the environment and other people of an authorised resource use. It is also possible that water resource uses can have external benefits. NWI paras 58 and 59.

44. 45.

NWI paras 64–77. NWI para 80.

46. 47.

NWI para 83. NWI paras 84 and 85.

48. 49.

NWI para 87. NWI para 20.

50. 51.

NWI para 28. NWI paras 13 and 14.

52.

A Gardner, ‘Federal Intergovernmental Co-operation on Environmental Management: A Comparison of Developments in Australia and Canada’ (1994) 11 EPLJ 104 at 116–119. NWI paras 18–22 and the National Water Commission Act 2004 (Cth) s 7.

53. 54.

55.

NWI para 11. See also National Water Commission Act 2004 (Cth) s 7(3), as enacted in 2004. The 2005 National Competition Policy assessment was done by the NWC in conjunction with the baseline assessment of water resources and governance arrangements under NWI para 105(i): see archived NWC website: and follow links to ‘Publications’, ‘Assessments’ and ‘National Competition Policy assessments’. National Water Commission Act 2004 (Cth) ss 40–42.

56.

Personal communication, Belinda Wilson, Water Reform Program, National Water

57.

58. 59. 60.

61.

62. 63. 64. 65.

66. 67.

68.

69.

Commission, 21 March 2006. There may be constitutional implications in enacting a statutory link between the funds and the performance of NWI obligations: see chapter 5 at [5.53]. This funding agreement became the legal link for the water entitlement holders arguing that the Commonwealth was responsible for an acquisition of their property through the reduction of ground-water access rights: ICM Agriculture v Commonwealth (2009) 240 CLR 140; and see discussion at [10]–[16] and [168] of the funding agreement for the ‘Achieving Sustainable Groundwater Entitlements’ program. The case is discussed in chapter 5 at [5.61]–[5.63]. See [3.10] above. By this Agreement, the Commonwealth agreed to contribute $200 million to address over-allocation in the MDB. National Water Commission Act 2004 (Cth) s 44. The Minister could veto the publication of an NWC assessment or recommendation. A copy of the 2008 MDB Reform Agreement is available on the CoAG website: and follow links to ‘Meeting outcomes’, ‘COAG meeting, 3 July 2008’, ‘Attachments’, ‘Intergovernmental agreements’ and ‘MurrayDarling Basin Intergovernmental Agreement’. The provisions of the NWI and the implementing legislation for assigning risk for future reductions in water availability are discussed in chapter 16 at [16.111] ff and [16.143]. Water Amendment Act 2008 (Cth). New South Wales, Queensland, South Australia and Victoria each enacted a statute called the Water (Commonwealth Powers) Act 2008 in late 2008. See Parliament of Australia, House of Representatives, Hansard, Second Reading Speech on the Water Amendment Bill 2008, 25 September 2008, p 8657 at 8660. The 2008 MDB Reform Agreement para 4.9. It was also agreed in para 4.3 that Basin State Priority Projects must make a substantial contribution to improving water use efficiency and addressing over-allocation in the MDB. The 2008 MDB Reform Agreement para 4.12 and Schedule E. Australian Government, Bureau of Meteorology, ‘Recent rainfall, drought and southern Australia’s long term rainfall decline’, April 2015: and follow links to ‘Climate’, ‘Recent climate’, ‘Climate updates’ and ‘Southern rainfall decline’. Albert I J M van Dijk et al, ‘The Millennium Drought in Southeast Australia (2001– 2009): Natural and Human Causes and Implications for Water Resources, Ecosystems, Economy and Society’ (2013) 49(2) Water Resources Research 1040. For legal perspectives on the water governance challenges of climate change, see L Godden, R Ison and P Wallis, ‘Water Governance in a Climate Change World: Appraising Systemic and Adaptive Effectiveness’, introduction to special issue, (December 2011) 25(15) Water Resources Management 3971, and various articles in that issue. House of Representatives Standing Committee on Regional Australia, Of Drought and Flooding Rains: Inquiry into the Impact of the Guide to the Proposed Basin Plan (May 2011), especially recommendations 4, 9 and 10; Water Act 2007 (Cth) Basin Plan,

70.

71.

72.

73. 74.

esp [5.05](1)(a) and chapter 7, part 2; and Australian Government, Department of Environment, Water Recovery Strategy for the Murray-Darling Basin (June 2014), limiting water entitlement buybacks in the MDB to 1500 GL: Australian Government, Web Archive: . Council of Australian Governments, National Partnership Agreement on Coal Seam Gas and Large Coal Mining Developments (March 2012), leading to the Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 (Cth) and the Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth) creating the ‘water trigger’. Australian Government, Productivity Commission, Australia’s Urban Water Sector, 2011: ; and Department of Agriculture and Water Resources, ‘Water policy and resources’, ‘Urban water’, ‘Urban water policy and reform’; and see M Bennett, A Gardner and K Vincent, ‘Regulatory Renovation for Managed Aquifer Recharge Using Alternative Water Resources: A Western Australian Perspective’ (2014) 24 Water Law 5. Australian Government, National Water Commission, Position Statement, ‘Indigenous access to water resources’, June 2012, archived website of the National Water Commission: . Australian Government, White Paper on Developing Northern Australia, June 2015, ‘Developing the North’s Water Resources’, pp 40–54. Ibid, p 47; Australian Government, Competition Policy Review: The Final Report, November 2015, Part 2, Findings and Recommendations, Recommendation 20, p 53; and Department of Agriculture and Water Resources, ‘National Water Infrastructure Development Fund — Capital Component’, 2016, section 3.1.

[page 59]

4 OBJECTIVES AND PRINCIPLES OF WATER RESOURCES LAW 4.1 The purpose of a statement of objectives in legislation is to guide administrative decision makers and those subject to the legislation on the interpretation of the legislation. This is especially important for the interpretation of how the discretionary powers of government may be exercised under the legislation. It is a rule of statutory interpretation enacted by Australian parliaments that: [i]n interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.1

4.2 As the rule of statutory interpretation says, if there is no express statement of objectives or purposes, then the objectives of the legislation may be implied from reading the Act as a whole. Some jurisdictions’ water resource legislation includes, in addition to a statement of objects, a statement of management principles that are to be applied in the administration of the Act.2 Further, some jurisdictions’ legislation provides for the making of a state water plan that defines in more detail pertinent objectives for water resources management.3 The meaning of these statements of objectives and principles are discussed in this chapter.4 4.3

The legislation itself may also express the duty of an

administrator to give effect to the statement of objectives and management principles, though the precise terms of [page 60] this duty may vary.5 Even if there is no express statement of such a duty,6 one may be implied. In Tickner v Bropho (1993) 40 FCR 183 at 191–1947 Chief Justice Black found that the express objectives of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to preserve and protect the Aboriginal heritage areas and objects, when read with other operative provisions of the Act, gave rise to implied duties on the Minister to give full consideration to an application for the exercise of the Minister’s power to make a protective declaration. The implied duties included the obligation to consider whether the area was a significant Aboriginal area and whether it was under threat of injury. There was also an implied duty to receive and consider a report about the area under threat before deciding whether or not to make a declaration, even though the statutory provision for the report was only facultative and did not express such a duty. His Honour held that an interpretation of the operative provisions of the Act that gave effect to the purposes of the Act was to be preferred. The interpretive force given to the objectives equated with an implied obligation to give effect to the objectives, at least in implying procedural duties for decision making. However, the objectives did not confine the Minister’s ultimate discretion to decide whether or not to make a declaration. In other words, there was no implied duty on the Minister ultimately to achieve any level of protection of Aboriginal heritage. 4.4 There are, therefore, three broad issues to address in relation to legal effect of the statements of objectives and principles: What is the content of the statement of objectives and principles found in the water resources legislation?

What is the nature of the duty of the relevant administrators to implement the objectives and principles? What is the effect of the subsidiary means of identifying and expressing objectives; for example, in a statutory state water plan? Among the objectives and principles declared in water resources legislation, the ‘precautionary principle’ (or precautionary approach, as some prefer to call it) has received particular legislative, judicial and scholarly attention. The chapter will conclude with an overview of the application of this principle in relation to water rights legislation.

Content of objectives and principles 4.5 With the exception of the Northern Territory, all Australian jurisdictions include some express statement of objectives in their water resources legislation.8 It is possible [page 61] here to address only certain key features of these statements; namely, the objectives of sustainability and the presence or absence of alternative objectives such as pursuit of social and economic benefits and efficiency and equity in water resources allocation.

Sustainability 4.6 Each of these statements expresses an objective of sustainability in one form or another. The Victorian, Western Australian and Australian Capital Territory Acts’ sustainability objectives do not expressly refer to ‘ecologically sustainable development’ (‘ESD’). For example, the Victorian Act has one of its

purposes as ‘to make sure that water resources are conserved and properly managed for sustainable use for the benefit of present and future Victorians’.9 The Western Australian and Australian Capital Territory Acts’ sustainability objectives are more strongly expressed, because they explicitly include protection of water dependent ecosystems.10 4.7 New South Wales, Queensland and South Australia refer specifically to ‘ecologically sustainable development’ and go on to define that phrase, but with different effects.11 In New South Wales, the Objects of the Act ‘are to provide for the sustainable and integrated management of water sources of the state for the benefit of both present and future generations and, in particular (a) to apply the principles of ecologically sustainable development’. The principles of ecologically sustainable development are defined to be a set of processes and relevant considerations for decision making, including the precautionary principle.12 The Queensland Act states that there are four main purposes of the Act, the first two of which are, ‘(a) the sustainable management of Queensland’s water resources and quarry material …; [and] (b) the sustainable and secure water supply and demand management …’. ‘Sustainable management’ is extensively defined with eight paragraphs, including: (a) the principles of ESD, which are further defined, (b) the allocation and use of water resources for the economic, physical and social wellbeing of the people of Queensland, ‘within limits that can be sustained indefinitely’, (c) sustaining the health of ecosystems, water quality, waterdependent ecological processes and biological diversity associated with water resources, and (d) recognising the interests of Aboriginal people and Torres Strait Islanders. The concept of ‘sustainable management’ is then [page 62]

defined as a goal or purpose of the making of regulations and water plans (subsidiary legislation under the Act) and water operations licensing.13 The purposes of the Act were significantly amended in 2016, redirecting them to the Act as a whole rather than only to water resources management under chapter 2, and setting up the sustainable allocation and use of water resources for economic and social purposes as a principle parallel to rather than subject to the principles of ecologically sustainable development.14 The South Australian Act provides that the ‘objects of this Act include to assist in the achievement of ecologically sustainable development in the state by establishing an integrated scheme to promote the use and management of natural resources in a manner that’ recognises/provides for/promotes various related goals. This Act also provides a set of processes and relevant considerations for decision making, including the precautionary principle, in a manner similar to the New South Wales and Queensland legislation.15 However, the South Australian Act does something that those other two Acts do not do: it also defines ‘ecologically sustainable development’ to have a substantive content; namely:16 ecologically sustainable development comprises the use, conservation, development and enhancement of natural resources in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical wellbeing while — (a) sustaining the potential of natural resources to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacities of natural resources; and (c) avoiding, remedying or mitigating any adverse effects of activities on natural resources.

4.8 The Tasmanian Act includes a similar substantive statement of sustainability by incorporation of the objectives of the resource management and planning system of Tasmania.17 Those objectives include the promotion of ‘sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity’, and ‘sustainable development’ is

further defined to have the same meaning as ‘ecologically sustainable development’ in the South Australian Act. On the other hand, the effect of the sustainable development objective is qualified by the accompanying statement in the principal objectives provision of having regard to ‘the need to — (a) promote sustainable use and facilitate economic development of water resources’. 4.9 In summary, therefore, while all of these state and territory Acts contain some form of sustainability objective, only the objectives of the South Australian Act contain an unqualified substantive objective of ESD. [page 63] The Commonwealth Act’s ‘objects’ provision is an interesting comparator.18 It does not expressly refer to ‘ecologically sustainable development’; instead it includes in objects (b) and (c) the goals of giving effect to relevant international agreements and, in doing so, of promoting the ‘use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes’. It then adds objective (d): without limiting paragraphs (b) or (c): (i) to ensure the return to environmentally sustainable levels of extraction for water resources that are over-allocated or overused; and (ii) to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin; and (iii) subject to subparagraphs (i) and (ii)—to maximise the net economic returns to the Australian community from the use and management of the Basin water resources; …

The juxtaposition of paras (c) and (d) could be argued to preserve the balance between the economic, social and environmental outcomes. Equally, it could be argued that (d) articulates how those three outcomes are to be optimised; namely, that maximising economic returns cannot be at the expense of

achieving a return to environmentally sustainable levels of extraction and protecting the ecological values of the MDB. The objects of the Commonwealth Act may be better understood in the context of the provisions describing the purpose and content of the Basin Plan, an instrument that is to achieve various objectives in both the short-to-medium term and in the long term. There is no doubt that a short-to-medium-term objective is to deal with over-allocation and over-use in the MDB. As explained in the second reading speech for the Water Bill 2007:19 The Water Bill and the national plan [for water security announced by the Prime Minister on 25 January 2007] build on the 2004 National Water Initiative agreement, signed by all governments. The key objectives of the National Water Initiative are to improve the efficiency of water use and establish clear pathways to return all water sources to environmentally sustainable levels of extraction. These are the objectives of the Water Bill …

The Basin Plan purpose under s 20 reiterates the essence of the objects of the Act, including in s 20(b) ‘the establishment and enforcement of environmentally sustainable limits on the quantities of surface and groundwater that may be taken from Basin water resources’. The Basin Plan content under ss 22–24 is to include long-term sustainable diversion limits and temporary diversion provisions that reduce to zero over five years so as to minimise the social and economic impacts of reducing extractions to the sustainable diversion limit. The MDBA and the Minister, in performing their functions in relation to the Basin Plan, are to give effect to the relevant international agreements [page 64] and to take into account a broad range of principles and factors, including ‘the principles of ecologically sustainable 20 development’. Ultimately, the legal effect of the Commonwealth Act’s objects and principles cannot be understood without

considering the express requirement that ‘[a] long-term average sustainable diversion limit for the Basin water resources … must reflect an environmentally sustainable level of take’, a concept that is defined by the Act.21 The effect of these provisions is discussed in chapter 16 at [16.136]–[16.143]. There has been much debate about the effect of the Water Act objects and Basin Plan purposes, both during the making of the Basin Plan and in its current implementation process.22 Some decried the Water Act as prioritising the environment at the expense of balance in optimising economic, social and environmental outcomes, and called for the Act to be amended. The plain truth is that the Act does prioritise provision of water to the environment for the short-to-medium-term objective of returning to environmentally sustainable levels of extraction, redressing a long-term historical imbalance in favour of economic uses of the Basin water resources, and aiming to optimise the longterm economic, social and environmental outcomes. Legally, it is notable that it is the more specific and operative duty provisions for implementing international obligations and making environmental water allocations that created this effect, rather than the more generally expressed objective of ‘ESD’. 4.10 An interesting question about the meaning of ESD is whether it includes notions of intragenerational equity as well as intergenerational equity.23 Intragenerational equity would require or permit a resource manager to accord some measure of social equity in the distribution of the resource development and environmental benefits. This issue arose in Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503,24 a case concerning the allocation of fishing rights. The main issue in the case was whether the Australian Fisheries Management Authority (‘AFMA’), and the officer reviewing its decisions, had acted unlawfully in making decisions to constrain the entry of large vessels into the South East Fishery. One argument was that the decisions were invalid because the duty to manage the fishery

consistently with the principles of ecologically sustainable development did not authorise the decision [page 65] makers to consider the ‘possible social and economic effects on decentralised fishing communities of an increase in the size of vessels with a corresponding decrease in numbers’: (1997) 77 FCR 503 at 548.25 The reviewing officer, Mr Palmer, had recourse to the National Strategy for Ecologically Sustainable Development26 to define the meaning of ESD in s 3(1)(b) of the legislation. Drummond J, at 548, explained the officer’s reasoning: This Strategy identified, as one of the ‘guiding principles of ecologically sustainable development’, that decision-making should effectively integrate both long and short term economic, environmental, social and equity considerations. The matters Mr Palmer said he had regard to in giving recognition to the Strategy included the disquiet expressed by State governments and the social and economic effects on decentralised fishing communities of an increase in the size of vessels with a corresponding decrease in numbers.

His Honour concluded that Mr Palmer had incorrectly defined the statutory objective by reference to the Strategy. Section 3(1)(b) of the FM Act is … concerned only with the need to ensure that the fisheries resources themselves are exploited only to the extent that the sustainability of the fish stocks over the long term is not impaired and with the need to ensure that the marine environment, in which those fish stocks exist, is similarly not subjected to irreparable damage. Yet in reliance upon the discussion in the National Strategy of the ESD objective there referred to, Mr Palmer erroneously assumed that s 3(1)(b) permitted him to have regard to social and community issues.

4.11 It is not clear whether the objectives provisions of the water resources legislation would be interpreted to include intragenerational social equity considerations as part of the concept of ecologically sustainable development. It is arguable that the commonly adopted phrase ‘enable people and communities to provide for their economic, social and physical well-being’ implicitly includes social equity. However, no

jurisdiction’s water resources legislation includes notions of social equity as clearly as the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which gives as the first principle of ecologically sustainable development: ‘decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations’.27 That leaves the question whether social and economic benefits and social equity are otherwise expressed as objects of the water resources legislation, perhaps even in juxtaposition to sustainability objectives. [page 66]

Social and economic benefits 4.12 There is a history of social and economic factors, including social and economic equity, being considerations relevant to the allocation of water resources in Australia. No doubt this history relates to the strong perception of water as a public resource or good that is essential to life and is to be applied to the development of the nation and with an eye on social equity objectives.28 At times, the social and cultural values applied to water resource allocation have strained the application of the legal framework. Such was the case in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 when, in the aftermath of the Second World War, the Commission refused to transfer an irrigation farm-lease from Browning to a naturalised British subject of Italian origin. The Commission had a very wide discretion to control the allocation of the irrigation district land, which it exercised to refuse the transfer because of a preference for allocating the land to Australian returned soldiers and curtailing an aggregation of Italians in an irrigation area. 4.13 What role do social and economic policy factors (including equity) play in the objectives of water resources management law

today? Each of the jurisdictions includes various social and economic policy factors in their statutory objectives. An immediate recognition of these factors lies in the concept of sustainable development; that is, development and use of water resources for social and economic benefit is contemplated. However, the statements of objectives go further. The Objects of the New South Wales Act include paras (c) and (e), which provide something of a checklist of social and economic policy factors:29 (c) to recognise and foster the significant social and economic benefits to the state that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, … (e) to provide for the orderly, efficient and equitable sharing of water from water sources.

4.14 Of the other jurisdictions, Queensland, South Australia, Tasmania, Victoria and Western Australia declare objectives relating to the orderly, equitable and efficient use of water resources (or a similar phrase).30 [page 67] The Queensland Act is alone in defining ‘efficient use’ of water, which includes demand management and water conservation measures, or consideration of the ‘volume and quality of water required for particular circumstances, including release into the environment’.31 New South Wales, Queensland and South Australia include

objects of recognising Aboriginal heritage and interests in water resources.32 The Australian Capital Territory, Tasmanian and Victorian Acts do not. It has been strongly argued that the current proposals for water resource development in Northern Australia require better recognition of Aboriginal peoples’ water rights and interest,33 and that could begin with recognition of them in the statutory objectives. New South Wales, Queensland, South Australia, Tasmania and Victoria all include objects of involving the community in the management of water resources.34 The Commonwealth Act does not mention equity, but does include an objective ‘to improve water security for all uses of Basin water resources’.35 4.15 In summary, Australian water resources legislation contains strong expressions of the development and use of water for social and economic benefits. There is also a prevalent, though not ubiquitous, concern for allocating water resources with an eye on certain undefined objects of fairness and equity. The legislation recognises the relevance of these factors to water resource management, though arguments of social and economic equity may not prevail when weighed against other factors in the administration of water rights.36 On the other hand, it is unlikely that a court would, on an application for judicial review, entertain an argument that too much weight had been given to social equity over sustainability considerations unless an argument could be made that the decision made was legally unreasonable.37 In that regard, it may be unreasonable to give great weight to social equity factors, which are only obliquely mentioned in the statutory statement of objects, at the expense of the sustainability objects, which are prominently expressed. [page 68]

4.16 Generally, the legislation does not attempt to define the terms employed to express these types of objectives. A court of law would generally leave that task to the executive branch of government because of the inherently political nature of these concepts. In Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2005] NSWCA 10 at [110]–[153]; 138 LGERA 11, the New South Wales Court of Appeal said as much in response to an argument that a water sharing plan was invalid because the plan was unfair and, therefore, irrational. While the court acknowledged, at [120], that the approach adopted in the plan was open to criticism and that an alternative approach to management of the ground-water resource could have been adopted, it was not prepared to hold that the plan was ‘irrational in a legal sense’, so as to be invalid. In respect of reviewing the plan against the objective of equity, Spigelman CJ said at [143]– [144]: Matters of ‘equity’ are introduced in the objects clause and, by force of s 21(e), are permissible to be considered by a Minister when determining the content of a plan. This identifies relevant considerations with the determination of which a court is unlikely to intervene. Inevitably, when significant changes are made to an established regulatory regime, there will be winners and losers. Considerations of equity are quintessentially matters for political decision-making. I am not satisfied that anything in the nature, scope and purpose of the Act prevents the Minister from implementing a scheme which operates to the detriment of some persons and to the advantage of others, in a manner not determined by availability of water but by broader considerations of what the Minister regards as equitable.

Spigelman CJ at [150]–[152] explained the logic of the plan and held that what was fair or unfair was a matter for political judgment: The Plan implements a proportionate reduction of all existing entitlements, alleviated in the short term by the supplementary water licence system. In the longer term the transfer system will provide a mechanism for bringing licensed extraction in particular areas closer to the annual recharge in those areas. Furthermore, it will do so by ensuring that the water is used for its highest value economic use. The Plan operates unequally by reason of the fact that one group of licence holders may have to pay another group of licence holders a sum of money in order

to access additional water. The choice made by the Minister in this regard raises considerations of equity of a character inappropriate for judicial review. No doubt some persons would regard pre-existing water access licences as some sort of accrued right, notwithstanding their statutory origin. It may appear to be unfair for such persons to have to pay additional money to obtain access to water which they could presently achieve under their licences, without adverse effects on water availability in the immediate region, particularly as they have to pay other persons who could not use the water in any event. What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.

His Honour agreed, at [153], with the conclusion of McClellan J at first instance ‘that such elements of unfairness as some may believe to arise in the case of the Plan are not [page 69] of a degree which renders the mechanism irrational so that Plan operates beyond the legally permissible limits of the statutory power’. 4.17 Thus, one may conclude that a court of law would likely not adduce from a statutory objective a judicial standard of equity or social or economic benefit to review an administrative decision unless the unfairness were so extreme as to satisfy the test of being irrational. However, would the inclusion of social and economic policy factors (including efficiency and equity) carry greater legal weight in statements of principles of sustainable management?

Water resource management principles 4.18 The answer to this question may be found in analysing the recent practice of stating resource management principles in addition to the objectives of the legislation. The principal example of this practice is found in the New South Wales Act, though it has also been adopted in the Queensland and South Australian Acts.38

It suffices to consider the New South Wales ‘water management principles’. There are principles of general application, and then sets of principles that relate sequentially to water sharing, water use, drainage management, floodplain management, controlled activities and aquifer interference activities. It is worth quoting here in full the general and water sharing principles of s 5 of the Water Management Act 2000 (NSW):39 (2) Generally: (a) water sources, floodplains and dependent ecosystems (including ground water and wetlands) should be protected and restored and, where possible, land should not be degraded, and (b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and (c) the water quality of all water sources should be protected and, wherever possible, enhanced, and (d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and (e) geographical and other features of indigenous significance should be protected, and (f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and (g) the social and economic benefits to the community should be maximised, and (h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.

[page 70] (3) In relation to water sharing: (a) sharing of water from a water source must protect the water source and its dependent ecosystems, and (b) sharing of water from a water source must protect basic landholder rights, and (c) sharing or extraction of water under any other right must not prejudice the

principles set out in paragraphs (a) and (b).

4.19 The general principles of subsection (2) relate mostly to the protection of the water sources and their dependent ecosystems and to Indigenous and other heritage values attached to those water resources. The proposition that social and economic benefits to the community should be maximised sits clearly within a sustainability framework and could not be said to qualify it. Each of the general principles (a)–(g) appears to have some normative value without providing a specific and substantive measure of the acceptability of any particular management decision. On the other hand, it is arguable that if something is to be protected, as provided in paras (a)–(c), then a management decision could not validly permit it to be degraded in any way; for example, a water use approval given under the Act40 may not authorise the deterioration of water quality. The final general principle, that (g) the principles of adaptive management should be applied, is arguably a proposition of process that will be explored further at [4.47]–[4.49]. 4.20 The water sharing principles of subs (3) exhibit stronger attributes as normative propositions. The three paragraphs proclaim a priority regime for allocation decisions that purports to protect the water source and dependent ecosystems, and basic landholder rights, against prejudice from allocations under licence. This intention is manifested by the use of the word ‘must’ in each of the paragraphs, as distinct from the word ‘should’ in the paragraphs of subs (2). The operation of s 5(3) was considered by the New South Wales Court of Appeal in Nature Conservation Council of New South Wales v Minister Administering the Water Management Act 2000 (Gwydir River case) [2005] NSWCA 9; 137 LGERA 320, a case in which the appellant challenged the validity of the environmental water allocation provisions of the Water Sharing Plan for Gwydir Regulated Water Source 2003 (NSW). The court addressed the effect of s 5(3) in conjunction with s 9(1) of the Act, which provided:

(1) It is the duty of all persons exercising functions under this Act: (a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and (b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection.

4.21 It is, therefore, difficult to distil a normative effect for the management principles in isolation of the express duty to give effect to those management principles. Nevertheless, Spigelman CJ, at [53] and [54], with whom Beazley and Tobias JA agreed, summarised and commented on the effect of the provisions: [page 71] It is the duty of the Minister when formulating a Minister’s plan with respect to water sharing to give priority to the principle that sharing of water must protect the water source and its dependent ecosystems over any other right to extract water, relevantly water access licences (ss 9(1)(b), 5(3)(a) and 5(3)(b)). The last proposition [just quoted] requires a certain amount of straining of the statutory language. Section 9(1)(b) refers to priority between principles in s 5(3). A careful reading of s 5(3) would suggest that para (a) and para (b) are such principles. It is by no means clear that s 5(3)(c) answers the description of a ‘principle’. It states that other rights of access to water must not ‘prejudice the principle set out’ in the previous two paragraphs. Nevertheless the intent is clear that, in exercising functions under the Act, including the making of a Minister’s plan, decision-makers should give priority in relation to water sharing to protecting the water source and its dependent ecosystems.

4.22 With respect, it is difficult to see why s 5(3)(c) should not be regarded just as much as a ‘principle’ as paras (a) and (b), especially as s 9(1) expressly refers to all three paragraphs as such. Nevertheless, in this context and later at [91], his Honour acknowledges that the text of the legislation, including; the water management principles identified in s 5(2)(a) and (b); and the priority given to protecting the water source and dependent

ecosystems in relation to water sharing by ss 5(3) and 9(1)(b); indicate that the water sharing plan would be invalid for failing to provide the environmental water rules required by the Act. The effect of this analysis is that the management principles of s 5(3), together with the duty to implement them in s 9(1), create a legal obligation.41 It may be, therefore, that the legal effect of management principles can only be fully understood in the context of the nature of the duty to implement the principles.

Nature of the implementing duty The terms of the statutory duties 4.23 Of the jurisdictions that express objects in their legislation, all (except the Australian Capital Territory and the Commonwealth) have some statement in the nature of an implementing duty.42 The New South Wales Act expresses the duty in s 9(1) recorded above.43 [page 72] The Queensland Act, amended in 2016, provides that the purpose of ‘sustainable management’ is fulfilled by preparing and implementing water plans, and that a ‘water plan … advances the sustainable management of Queensland’s water’.44 The South Australian Act provides that ‘[t]he Minister, the Court and all other persons or bodies involved in the administration of this Act, or performing, exercising or discharging a function, power or duty under this Act, must have regard to, and seek to further, the objects of this Act’.45

The Tasmanian Act provides that ‘[i]t is the obligation of the Minister, the Secretary, a water entity and any other person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives specified …’.46 There are a number of points to note about these provisions. First, the Queensland implementing duty has been replaced in 2014–16 by provisions that have questionable normative effect. Secondly, the New South Wales, South Australian and Tasmanian implementing duties require the persons administering the legislation to have regard to the objectives and, if applicable, management principles. Thirdly, these implementing duties require something more of the administrator than having regard to the objectives and principles. The provisions create some form of duty to give effect to the substance of the objectives. How have the courts interpreted these two sorts of provisions?

The duty to have regard to relevant considerations 4.24 There are two aspects to this duty. The primary aspect is the obligation of administrators to take the objectives and principles into consideration in performing their functions. A failure to do so may render the performance of the function invalid: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39–40 per Mason J. The weight to be given to the various objectives or principles will usually be ascertained by the decision maker according to the circumstances at hand,47 although a decision that fails to give adequate weight to a highly important factor, or gives inordinate weight to an insignificant factor, may be struck down by the courts as unreasonable: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. In some cases, the circumstances may mean that a generally significant objective need not be considered: Minister for Planning v Walker [2008] NSWCA 224 at [50] ff. Ultimately, though, the administrator’s duty is only to consider the relevant factors, not necessarily to give

effect to them or to make a decision consistent with an objective or principle [page 73] that must be taken into account. The consideration must still be ‘proper, genuine and realistic’.48 4.25 The secondary or alternative aspect of the duty is the obligation of administrators not to have regard to considerations that are irrelevant — factors that are outside the scope or policy concerns of the legislation. Ascertaining what factors are irrelevant is a matter of statutory interpretation. It may be that the obligation to have regard to certain objectives and principles has the effect of excluding other, possibly competing, factors from the administrators’ purview. For example, if the relevant legislation is construed to require the decision maker to have regard only for environmental protection objectives and not the economic consequences of a regulatory decision, then the decision maker may validly exclude those competing considerations: The Phosphate Co-operative Company of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134.49 Taking into account matters that are irrelevant to the performance of the function may render the decision or action invalid: Re Environmental Protection Authority and the Minister for Environment (WA); ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136. 4.26 If the legislation confers a very broad discretion on the decision maker to decide what factors are relevant to the exercise of the power, then a court will be reluctant to intervene: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492. In that case, Dixon J explained, at 504–506, why the legislation permitted the Commission, in the aftermath of the Second World War, to apply a strong, even prejudicial, social policy to forbid the transfer of the irrigation land lease to Mr

Carbone, a naturalised British subject of Italian birth — that is, of enemy origin:50 The statutory provision which gives to the Commission the discretionary power of consenting to the transfer contains no statement of the matters which the Commission is to take into consideration in exercising the power. It contains a prohibition against transferring an irrigation-farm lease except with the consent of the Commission and proceeds to say that the grant or refusal of the application for consent shall be entirely in the discretion of the Commission. But there is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view. No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent. And I agree with the view expressed by Jordan CJ that the use of the word ‘entirely,’ while it indicates that the discretion is meant to rest in the Commission alone, does not

[page 74] necessarily indicate that it is intended to be arbitrary and unlimited, … But, though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court’s doing more than saying that this or that consideration is extraneous to the power (Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, pp 757, 758). But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission’s refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission’s discretion?

The main difference with the water resources legislation today is that, generally, it defines in some detail the scope and objects of the legislation. It is thus easier today to identify the types of considerations regarded as relevant or irrelevant to the exercise of the statutory functions of water resource managers. One way in which the legislature may confer a broad administrative discretion is to say that the power may be exercised ‘in the public interest’. As French CJ, Gummow and Crennan JJ said in ICM Agriculture Pty

Ltd v Commonwealth (2009) 240 CLR 140 at 162: ‘The term “in the public interest” is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.’ In that case, the statutory power extended to the state Minister approving a water sharing plan in accordance with the terms of a funding agreement with the Commonwealth, which was subject to challenge on constitutional grounds: see chapter 5 at [5.61]– [5.62]. In the context of statements of environmental statutory objectives, however, the term ‘public interest’ has been held to incorporate ‘ecologically sustainable development’: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105.

The duty to give effect to the objectives and principles 4.27 As noted above, the duty provisions for New South Wales, South Australia and Tasmania require something more of the administrator than having regard to the objectives and principles. The provisions create some form of duty to give effect to the substance of the objectives: to act in accordance with, promote, advance or further the objectives and, if applicable, management principles. Judicial consideration of these types of provisions has ascertained a legal effect that, potentially, requires more than merely having regard to nominated objectives. 4.28 In Cape York Aboriginal Land Council v Boyland, Executive Director of the Department of Environment [2000] QCA 20251 the Queensland Court of Appeal had to interpret the effect of the ‘cardinal principle’ for the management of national parks by the Executive Director. Section 25 of the National Parks and Wildlife Act 1975 (Qld) provided: [page 75]

The cardinal principle to be observed in the management of National Parks shall be the permanent preservation, to the greatest possible extent, of their natural condition and the Director shall exercise his powers under this Act in such manner as appears to him most appropriate to achieve this objective.

The Aboriginal Land Council challenged the decision of the Director to grant a permit to the sub-lessee of land in a national park to construct certain buildings for the purposes of providing a tourist and recreational facility. While there was considerable discussion of the legal advice and reasons that informed the Director’s decision, the Court of Appeal at [16]–[17] concluded that: [16] … the highest that the matter can be put for the respondents is that the first respondent [the Director] accepted the advice given that the question was whether permission could be reasonably withheld; and that he believed that he could withhold permission only if very sound reasons for refusing it were shown. It seems plain from this, in our opinion, that the first respondent asked himself the wrong question. The correct question was what was the most appropriate way of achieving the objective of the permanent preservation, to the greatest possible extent, of the natural condition of the park having regard to all the circumstances including the existence of the sublease for tourist and recreation facilities; whether it was by refusing permission to construct the buildings or to grant it subject to conditions or, as seems most unlikely, to grant it unconditionally. Having asked himself the wrong question he appears to have answered it by concluding that, once it was established that the proposed construction was bona fide for tourist and recreational facilities, he could not reasonably refuse it or, perhaps, could only reasonably have refused it for very sound reasons. He did not attempt to say what very sound reasons might be and he seemed to think that, even if there had been an application for a 30 storey building on the land he would merely have had ‘reservations’ about it. [17] It is plain that, if the first respondent has asked himself the right question he might have arrived at a different answer.

The Court of Appeal quashed the Director’s decision, which left the Director to entertain a new application for a permit to construct the tourist facilities in accordance with the court’s direction as to what was the proper question to ask. The result of the case was that the court insisted that the decision maker ask himself the right question; namely, whether the application was, in all the circumstances, the most appropriate way of achieving ‘the objective of the permanent preservation, to the greatest possible extent, of the natural condition of the park’. The court

required the decision maker to apply a positive test of achieving the objective. There was, however, no suggestion that the court would evaluate the application in light of that objective. 4.29 In contrast, it is arguable that the decision in Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503 (‘Bannister Quest’) is an illustration of a court giving substantive effect to the objectives of the legislation to invalidate certain administrative decisions. The applicant, Bannister Quest, sought judicial review of [page 76] certain decisions of the AFMA in light of its duty to pursue certain objectives of s 3(1) of the Fisheries Management Act 1991 (Cth) (‘FM Act’), which included: (b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and (c) maximising economic efficiency in the exploitation of fisheries resources; and (d) ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; … [emphasis added].

Bannister Quest challenged AFMA’s decisions to constrain the entry of large fishing vessels into the South East Fishery (‘SEF’), arguing that AFMA had misconstrued objectives (b), (c) and (d) and made decisions that were invalid. Much of the discussion of Drummond J turns on the meaning of the three objectives, but it is the effect given to the duty to pursue the objectives that concerns us here. In analysing that duty, his Honour commented at 513: The imperative nature of the obligation cast on AFMA by s 3(1) of the FM Act is emphasised by the contrast between the language of s 3(1) and (2): the former states that the five objectives listed in the subsection ‘must be pursued’ by AFMA in the

performance of its functions, while the latter subsection provides only that: ‘in addition to the objectives mentioned in subsection (1) … AFMA … [is] to have regard to’ the two additional objectives set out in that subsection, that is, it must take them into account in performing its functions but is not bound to seek to achieve them.

In Bannister Quest at 513–514, Drummond J went on to explain the effect given to the economic efficiency objective by the earlier Full Federal Court decision of Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314 (‘Adams’), noting that Sheppard J had: read s 3(1) of the FM Act as requiring AFMA to take into account, in making any decision in the exercise of its functions, all the s 3(1) objectives, although he added: No doubt there will be cases in which the minister may give varying degrees of weight and emphasis to this or that objective. So long as each objective is pursued, there will be no breach of duty. But if one of the objectives is not pursued at all, then that will not be the case. [Emphasis added.]

Thus, although the duty is to pursue the objectives, the judicial analysis of the duty in Adams was, practically, to require the decision maker to have regard to the objectives and ensure that no single objective was ignored. 4.30 In Bannister Quest at 514, the real issue for Drummond J was to identify ‘what the legislature sought to achieve by imposing obligations, so expressed, on AFMA’. In view of the ‘obscurity and ambiguity of much of the language of s 3(1)’, his Honour at 514– 515 had recourse to extrinsic materials in the form of the Commonwealth Government’s [page 77] 1989 policy statement ‘New Directions for Commonwealth Fisheries Management in the 1990s’.52 This exercise informed the whole of his Honour’s interpretation of the statutory objectives. The policy statement explains that the solution to the problem of economically and ecologically unsustainable fisheries is the

reduction of fishing capacity through the introduction of management concepts of ‘total allowable catch’ and ‘individual transferable quotas’ (‘ITQs’); concepts which are not defined in the legislation. His Honour quoted at 518 from the policy statement to explain the market-based management regime that was to be implemented under the new legislation: Market forces distribute the [ITQs] among those fishermen who value the rights most highly and are able to use the resource most efficiently. Because quota holders are guaranteed a proportion of the catch, they no longer need to compete for their catch and can concentrate on using the most economically efficient means of taking their share. In this way, ITQs facilitate autonomous adjustment of fleet size and fishing operations. The value of quota units to fishermen is determined by how efficiently each can use them. In general the more efficient fishermen buy ITQs from the less efficient at prices that exceed the earning capacity of those units in the hands of the less efficient fishermen. The less efficient operators leave the fishery, which reduces total fishing capacity.

Drummond J adopted this policy perspective on the intention of the legislation as the basis for defining and applying the three statutory objectives. In relation to the ‘economic efficiency’ objective, his Honour concluded at 521–523: In my opinion, this means that it is out of place for AFMA to have regard to the efficiency of an individual fisherman’s operation relative to that of other fishermen or to social or equity considerations, in taking any action which will have an impact on whether economic efficiency in the exploitation of the resources of a particular fishery is likely to be maximised or hindered by that action. It is clear that the duty to pursue the efficiency objective does not require AFMA to protect or enhance the financial position of each operator: the policy statement shows that this statutory objective is to be achieved in the course of restructuring the SEF, through the use of ITQs, to encourage the voluntary departure from the fishery of less profitable operators.

The objective, when properly construed, required AFMA to have regard to the efficiency of the industry, not an individual operation, but also to pursue that objective by implementation of the substantive policies for restructuring the SEF in accordance with a policy statement. 4.31 Similarly, in relation to the challenge on the ground of the

‘accountability’ objective, Drummond J concluded at 524: There is no reason to doubt that AFMA’s wide ranging duties to consult with industry bodies before taking action can entitle AFMA to give weight, in arriving at particular

[page 78] decisions, to the views expressed by industry organisations … in the course of the consultation process. But the consultation AFMA is required to undertake is for the purpose of assisting AFMA to achieve its statutory objectives. It is those objectives which AFMA has a mandatory duty to pursue in the performance of its functions: when information and opinions are conveyed to AFMA by industry representatives in the consultation process which AFMA considers have weight, it can only properly allow those considerations to affect the decisions it arrives at and, in particular, important decisions of the kind here in question, in so far as those views do not conflict with this mandatory duty.

Again, the interpretation of the objective postulates a correct procedure for the decision maker in pursuit of certain substantive policies. 4.32 Finally, a similar process of reasoning led Drummond J to conclude that pursuit of the ESD under the Fisheries Management Act was limited to ensuring the biological sustainability of fish stocks and preservation of the marine environment, and it did not permit AFMA to have regard to the social and equity effects on smaller operators of permitting large vessels to enter the SEF. His Honour explained at 540: s 3(1) no more permits the Board to be guided in making decisions like the one presently in issue by whether those decisions will advantage the financial position of individual small operators than to be guided by whether its decisions will improve the financial position of individual large vessel owners. Nor, for the reasons given, does it permit the Board to take into account the human costs of the restructure it is charged with implementing in the pursuit of its statutory duties.

In summary, his Honour gave effect to the substantive aims of the objectives by recourse to their definition in the Act and in a comprehensive policy, and by enforcing their effect by the more

traditional procedural reasoning of judicial review; that is, by requiring the objectives to be considered as relevant considerations or not considered because they were irrelevant. 4.33 More recent experience with judicial review of environmental statutory objectives shows, if anything, an increasing disinclination of the courts to give any substantive effect to the general statements of objectives. While acknowledging a purposive approach to statutory construction, courts are wary of giving significant effect to a particular statutory objective, even if it is asserted to be ‘an underlying purpose’ of the statute as a whole: MyEnvironment Inc v VicForests [2013] VSCA 356, especially per Warren CJ at [4]–[18]. In that case, the complex set of statutory instruments were seen to pursue multiple purposes, particularly the protection of habitat of Leadbeater’s possum and continued production of timber from forests. Her Honour explained at [16]: ‘even when a single, or significant legislative purpose can be clearly perceived, such a purpose may be articulated at a level of generality that makes it unhelpful when construing a particular provision which manifests a more specific legislative intent’. The specific habitat protection was to be ascertained by reference to the details of the subsidiary instruments that were prepared under particular provisions of the legislation and the level of generality in the statutory purpose to protect the habitat was of little assistance when construing those relevant provisions. [page 79] 4.34 A similar point was made by the New South Wales Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 on the exercise of a discretionary power to make a state environmental planning policy. The Environmental Planning and Assessment Act 1979 (NSW)

provided in s 37 that the Director of Planning may, after consultation with such public authorities as the Director determines, prepare a draft state environmental planning policy with respect to such matters as are, in the opinion of the Director, of significance for environmental planning for the state. Section 39 of the Act provides that the Minister shall take such steps, if any, as he considers necessary or appropriate to publicise a draft state environmental planning policy and to seek and consider submissions from the public before making a recommendation to the Governor to approve the policy. In order to facilitate approval of a large coal mine, the State Environmental Planning Policy No 45 — Permissibility of Mining (NSW) was made and purported to prevail over other environmental planning instruments, including a carefully made local environmental plan. The Director of Planning consulted only the chief executive officers of the Department of State Development and the Department of Mineral Resources in preparing the draft plan, and the Minister for Planning took no steps to publicise the draft policy or seek public comment on it. At first instance, Stein J of the Land and Environment Court of New South Wales upheld the argument by Rosemount that the policy was manifestly unreasonable and invalid, including because the procedure applied to the preparation and approval of the policy was inconsistent with the objects of the Act. The Objects expressed in s 5 of the Act included: (b) to promote the sharing of responsibility for environmental planning between different levels of government in the state, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

By s 7, the Minister was responsible for promoting and coordinating environmental planning and assessment for the purpose of carrying out the objects of the Act. Stein J held that the Director and the Minister were, in exercising their discretionary power to prepare and approve the policy:53

obliged to do so in a manner consistent with the promotion of the Act’s objects and in the context of the framework of the legislation. They were also obliged to exercise the discretions having regard to the subject matter, scope and effect of the draft policy. … For there to be a proper exercise of [the discretionary powers] there would need to be cogent reasons consistent with the objects of the Act for not consulting (and publicising). I have found that there were not such reasons.

4.35 The Court of Appeal overturned the decision of Stein J. The court characterised the objectives as relating to competing matters that needed to be weighed in exercising the statutory powers. In addition, the court contrasted the generally mandatory procedures [page 80] for the making of regional and local environmental plans with the discretionary procedures applicable to the making of the state environmental planning policies, and emphasised that such policies could override earlier-made planning instruments. Cole JA added at 75–76, with Handley and Sheller JJA agreeing: Nor is it possible to expand the statutory requirements of a particular regime which specifies the manner in which a particular planning instrument may be made by reference to the objects of the Act. The content of a scheme may be required to conform with the objects of the Act, and the procedural steps, in so far as they have an object or policy content, may be controlled by the objects of the Act in the sense that if the steps are taken for a purpose foreign to the objects of the Act, the procedural step in truth may not be one within the statutory power. However, subject to those matters the issue descends, in my view, to the narrow issue of Wednesbury unreasonableness. It is not unreasonable to do that which the statute permits in performance of a statutory power or obligation and for purposes contemplated or permitted by the statute.

The court concluded, at 76–80, that the exercise of the discretionary powers by the Director in limiting consultation and the Minister in not seeking public comment were not unreasonable because the actions were consistent with the express statutory powers. It would appear, therefore, that statutory duties to give effect to

the objectives of the legislation need to be quite clear and strong if they are to elevate the objectives to qualify the express terms of provisions for administrative powers and functions. It would be clearer still if the operative provisions were drafted to reflect better the terms of the objectives. 4.36 There are competing views on the legal utility of the statements of objectives for guiding administrative action for ESD, including in relation to water resource management. Some advocate the enactment of a reformed duty to apply ESD as the primary objective of the legislation.54 Others question the utility of judicial review proceedings targeted at enforcing objectives of ESD.55 We acknowledge that there are limitations on the function of judicial review for scrutinising the application or consideration of generally expressed ESD objectives provisions in natural resources and environmental legislation. Nevertheless, the accepted canon of purposive statutory construction means that express objectives provisions are preferable to judicial implications in difficult cases of statutory interpretation.

Subsidiary instruments to define objectives 4.37 Courts are understandably reticent to give substantive effect to a statutory statement of objectives because the generality of the language is difficult to apply to [page 81] the precise circumstances of particular cases without breaching the mantra of judicial review that a court will not review the merits of the decision. One means of overcoming the vagueness of general statutory objectives is to create a subsidiary instrument under the authority of the legislation that provides more precise guidance to administrative decision makers. Two states have adopted this

technique; New South Wales has legislated for the State Water Management Outcomes Plan (‘SWMOP’) and South Australia has legislated for the State Natural Resources Management Plan.56 We will consider briefly the effect of the New South Wales SWMOP provisions. 4.38 The New South Wales Act provides that the objects of the SWMOP are to:57 set the overarching policy context, targets and strategic outcomes for the management of the state’s water resources; promote the water management principles; and give effect to any government policy in relation to salinity strategies. The SWMOP must be consistent with any government policy (including matters declared by regulation to be government policy), and with government obligations arising under any federal intergovernmental agreement or under any international agreement to which the Commonwealth is a party. A water management plan must be consistent with the SWMOP. The SWMOP was promulgated by order of the Governor in the Gazette and had effect for a period of five years.58 4.39 The New South Wales Act also provides in s 9(2) that ‘[i]t is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan’. It may be expected that judicial interpretation of this duty would be similar to the duty to give effect to the water management principles discussed above. To date, judicial analysis of the effect of the SWMOP suggests a couple of indicators of the legal effect of this type of subsidiary instrument. In the Gwydir River case [2005] NSWCA 9; 137 LGERA 320, judicial recourse to the SWMOP showed that this type of instrument can be an authoritative explanation of government policy. In that case, Spigelman CJ, at

[29] and [95], quoted extensively from the SWMOP narrative to explain the policy background to the contested provisions of the water sharing plan and then referred to the SWMOP ‘analysis’ to support the validity of the plan provisions. In contrast, in Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation [2003] NSWLEC 213 the New South Wales Land and Environment Court upheld the validity of a water sharing plan after analysing arguments that the plan was inconsistent with the SWMOP. Pain J, at [87]–[88], explained the legal effect of the [page 82] SWMOP provisions in relation to the statutory requirement that the water sharing plan be consistent with the SWMOP: This means in general terms consistency with the whole of the SWMOP. The Plan itself expressly states that it is consistent with the targets in the SWMOP, as identified in Sch 2 to the Plan … Schedule 2 identifies the SWMOP targets which the Plan contributes to achieving. Even if Target 16a was not complied with it could not be said the Plan was in general terms not consistent with the whole of the SWMOP given other targets in the Plan dealing with environmental objectives including implementation of the ‘water cap’ under Target 1a are met by the Plan. I note that Target 16a is referred to in Sch 2 of the Plan and the level of contribution to the target is stated to be ‘high’, meaning while not meeting the target in full there is a good level of achievement. If I had found a breach of the SWMOP, the generality of the language used in the SWMOP in referring to ‘target’ rather than a ‘rule’ makes a finding of inconsistency with the whole of the SWMOP difficult to prove. The drafting of the SWMOP does not suggest that the targets have a binding rule-like quality such that a breach would give rise to invalidity.

4.40 There are benefits to specifying more refined targets and objectives for water resources management in a subsidiary instrument like a state water plan. However, if such instruments are expressed in general terms, it is unlikely that a court will apply its terms with the precision that might normally be expected of ordinary statutory provisions. The targets and objectives of state

plans will, at least, be relevant considerations and may also be a collation of targets and objectives that give general guidance to the substantive content of valid management plans and administrative decisions. The precise legal effect may depend on the language employed in the instrument itself and the nature of the policy objective being expressed. For example, the SWMOP considered at [86] in Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation [2003] NSWLEC 213 contained this statement about its own intended effect: The outcomes and targets identified in this SWMOP do not attempt to be exhaustive. Instead the focus is on those outcomes which affect the highest priorities and/or good indicators of overall improvement. Similarly the targets selected are those which are likely to achieve the greatest gains towards the outcomes in the short term. The targets do not therefore seek to establish an ultimate position or standard but rather to take a significant but practical step in the process of continuous improvement. [Original emphasis.]

On the other hand, a SWMOP provision that purported to express a governmental obligation under an intergovernmental agreement may be given more precise legal effect. For example, as discussed in Murrumbidgee Horticulture Council at [61], Target 1(a) of the SWMOP provided: Extractions in Murray-Darling Basin’s regulated rivers limited to the level of the long-term average annual extraction below the Murray-Darling Basin Ministerial Council Cap which results from the long-term impact of the environmental water rules. [Original emphasis.]

[page 83] The plan under challenge described its contribution to achieving Target 1a as ‘full’, meaning the contribution of the plan to achieve the target is fully met. Had this not been the case, there may have been an interesting question whether the Plan could be valid if it did not provide for meeting an important obligation of a federal intergovernmental agreement.59

The precautionary principle in water resources law 4.41 The New South Wales, Queensland and South Australian Acts include the precautionary principle in their statements of objectives and principles.60 There are numerous discussions of this principle in a range of sources.61 The modest purpose here is to note the incipient application of the precautionary principle in relation to water rights and the potential future application. 4.42 One of the objects of the New South Wales Act is ‘to apply the principles of ecologically sustainable development’. Those principles are defined to include the precautionary principle, which is itself defined:62 the precautionary principle — namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options.

[page 84] The New South Wales Land and Environment Court has held that the principle must be applied because the legislation requires that. As McClellan CJ commented in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [178]: as I have indicated the precautionary principle is now given statutory recognition not only in the Water Management Act but in numerous NSW Statutes. Some examples are: … It is a central element in the decision-making process and cannot be confined. It is not merely a political aspiration but must be applied when

decisions are being made under the Water Management Act and any other Act which adopts the principles.

This proposition has been repeated by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [121]. 4.43 In contrast, there are conflicting authorities on the applicability of the precautionary principle to decision making in the absence of a statutory mandate. For example, in Alliance to Save Hinchinbrook v Chief Executive [2006] QSC 084 at [35], the Queensland Supreme Court held that, as the legislation included no express definition of the precautionary principle and no express obligation to apply any such principle, the adoption by the decision maker of such a principle was likely to result in an additional consideration beyond those authorised by the Regulation and could thus amount to an irrelevant consideration. In Kroger v Southern Rural Water [2001] VCAT 1334 at [53]–[55], the Victorian Civil and Administrative Tribunal appeared to take a similar approach to the determination of an application for a licence to construct water abstraction works on a watercourse under the Water Act 1989 (Vic), which contains no express obligation to consider the precautionary principle. The Tribunal held that the language of the relevant statutory provision addressing ‘likely’ adverse effects was against the consideration of the precautionary principle. However, the Tribunal went on to say at [55]: Commonsense and the overall policy and purposes of the Water Act indicate nevertheless that a degree of caution should be adopted. The provisions which we have quoted in the Water Act show that environmental values are to be protected and are highly valued. It goes without saying that if action is taken which would compromise those values, the damage may be irreversible. Those considerations indicate that findings in favour of an applicant such as the present should only be made after proper consideration and due deliberation.

4.44 In More v Water and Rivers Commission [2006] WASAT 112 at [80]–[82], the Western Australian State Administrative Tribunal held that, although the Rights in Water and Irrigation Act 1914

(WA) does not expressly state that the Commission, or the Tribunal on review, should apply a precautionary approach to decision making, it was appropriate to adopt a precautionary approach because of the uncertainty surrounding the effects of granting the application for an increased water allocation and the potentially very serious harm that may occur from increasing the stress on the water resource in question. The Tribunal adopted an argument by Roberts and Gardner that a precautionary approach was consistent with the [page 85] relevant statutory provisions,63 especially the objectives of sustainable use and development of water resources and protection of their ecosystems. The Tribunal decision reversed a history of unsuccessful reliance by the Water and Rivers Commission on the precautionary approach in water licence appeals. Further, in 2016 the Supreme Court of Western Australia endorsed the State Administrative Tribunal having regard to the precautionary principle in a case reviewing refusal of a subdivision application under the Planning and Development Act 2005 (WA) even though the principle is not expressly mentioned in that Act. It was held that the precautionary principle was consistent with the purpose of that Act to ‘promote the sustainable use and development of land in the State’: Wattleup Road Development Co Pty Ltd v State Administrative Tribunal (No 2) [2016] WASC 279 at [10] and [53]. 4.45 To a certain extent, the ambivalence about whether the precautionary principle applies to particular decision making reflects uncertainty about what it requires. In this regard, Jacqueline Peel has commented:64 There is a detectable shift in decision-making in terms of an improved awareness on the part of many decision-makers of the need to consider scientific uncertainty

either expressly or implicitly in decision-making. However, there remains a lack of consistency as to how such consideration takes place. Relatively little innovation has occurred to fashion decision-making processes that are more responsive to issues of uncertainty and indeed there is a perception, particularly among courts, that such innovation is unnecessary because ‘common sense’ will suffice.

4.46 The difficulty of applying the precautionary principle is apparent when one reads the tentative judicial analysis of the operation of the principle in particular cases. For example, McClellan CJ in Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122, went on to apply the principle to the challenge that the water sharing plan was invalid for being unreasonable or irrational because it made a uniform reduction to all water entitlements in the management area rather than differential reductions on the historical evidence of the viable use of the different entitlements. His Honour said: [186] When deciding to make the Plan the Minister had the ultimate objective of providing for the long-term sustainability of the underground water. His decision was required to be informed by, inter alia, the precautionary principle which required a regime to be put in place which was likely to sustain the water source even if, as is the case, full scientific knowledge of the structure and behaviour of the aquifer is not available. [187] By ensuring the long-term health of the aquifer, the Minister has ensured both an appropriate environmental outcome and sustainable agriculture with the associated social and economic benefits. …

[page 86] With respect, this very brief analysis of the application of the precautionary principle reveals an intuitive appreciation of the principle, but not a clearly reasoned application.65 It is difficult to see what difference the application of the precautionary principle made to the decision. 4.47 In this regard, the decision of Preston CJ in the New South Wales Land and Environment Court decision of Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [126]–[127] has

provided guidance for the operation of the precautionary principle, including under the water rights legislation.66 It was the first detailed explanation in that court of the procedure for the application of the precautionary principle and, possibly, the most detailed judicial consideration of this question in any Australian court. It drew widely on judicial decisions from a range of jurisdictions as well as academic literature to provide guidance on the concept of the precautionary principle and its application. His Honour made many salient points, the most basic of which we note here with quotations of supporting text:67 (1) There are two conditions precedent to the application of the precautionary principle. The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate: …

(2) The principle addresses a range of threats to the environment. Threats to the environment that should be addressed include direct and indirect threats, secondary and long-term threats and the incremental or cumulative impacts of multiple or repeated actions or decisions. Where threats may interact or be interrelated (for example where action against one threat may exacerbate another threat) they should not be addressed in isolation: …

(3) Assessing the seriousness or irreversibility of environmental damage involves the consideration of many factors, including: (a) the spatial scale of the threat (eg local, regional, statewide, national, international); (b) the magnitude of possible impacts, on both natural and human systems;

[page 87] (c) the perceived value of the threatened environment;

(d) the temporal scale of possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts; (e) the complexity and connectivity of the possible impacts; (f) the manageability of possible impacts, having regard to the availability of means and the acceptability of means; (g) the level of public concern, and the rationality of and scientific or other evidentiary basis for the public concern; and (h) the reversibility of the possible impacts and, if reversible, the time frame for reversing the impacts, and the difficulty and expense of reversing the impacts.

(4) The assessment of threats will be enhanced by consulting widely. The assessment of whether the threats are serious or irreversible will be enhanced by broadening the range of professional expertise consulted and seeking and taking into account the views of relevant stakeholders and right-holders. The former is important because of the interdisciplinary nature of the questions involved. The latter is important because different judgments, values and cultural perceptions of risk, threat and required action play a role in the assessment process …

(5) ‘The threat of environmental damage must be adequately sustained by scientific evidence.’ (6) The second condition precedent is that there is scientific uncertainty about the nature and scope of the threat of environmental damage. The assessment of the degree of uncertainty might include consideration of the following factors: (a) the sufficiency of the evidence that there might be serious or irreversible environmental harm caused by the development plan, programme or project; (b) the level of uncertainty, including the kind of uncertainty (such as technical, methodological or epistemological uncertainty); and (c) the potential to reduce uncertainty having regard to what is possible in principle, economically and within a reasonable time frame.

(7) ‘It cannot be unequivocally stated that a particular phenomenon will never cause adverse effects.’ Thus, how much scientific uncertainty need there be as to the threat of environmental damage before the second condition precedent is fulfilled? [T]he magnitude of environmental damage is usually inversely proportionate to the

likelihood of risk in order for precaution to be triggered. That is to say, where the relevant degree or magnitude of potential environmental damage is greater, the degree of certainty about the threat is lower. They suggest that for a formulation of the precautionary principle which uses the threshold of ‘serious or irreversible’ environmental damage, the correlative degree of certainty about the threat is ‘highly uncertain of threat’. This would contrast with a formulation of the precautionary

[page 88] principle which sets a lower degree of potential harm such as ‘potential adverse effects’, where the correlative degree of certainty about the threat would be higher, namely ‘highly certain of threat’ …68 … de Sadeleer posits a threshold test of ‘reasonable scientific plausibility,’ or where a threat or risk of environmental damage is considered scientifically likely.

(8) If there is not the requisite scientific uncertainty about the threat of damage, the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats: …

(9) If the precautionary principle is activated, there is a shift in the evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.

(10) The shifting of the burden of proof does not determine that the proposal cannot proceed. If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decision-maker must assume that there will be serious or irreversible environmental damage. This assumed factor must be taken into account in the calculus which decision-makers are instructed to apply

under environmental legislation (such as s 79C(1) of the EPA Act). There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed: …

(11) ‘The precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known.’ It should not be used to try to avoid all risks, such as those founded on conjecture and not scientifically verified. [page 89] The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. This involves assessment of risk in its usual formulation, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and the more uncertain the threat, the greater the degree of precaution required: …

(12) ‘The precautionary principle embraces the concept of proportionality. The concept of proportionality is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question.’ One means of taking appropriate measures is through an adaptive management approach, which involves monitoring of management on agreed indicators, ensuring evaluation of monitoring results and reviewing and adjusting measures or decisions adopted. The precautionary principle does not necessarily prohibit development until full scientific certainty is attained.

4.48 This extensive summation of Preston CJ’s discussion of the precautionary principle leaves two important questions: (i) what will be required of an adaptive management approach and (ii) when will it be appropriate to prohibit a development?

Writing extra-judicially, Chief Justice Preston comments, ‘[a] precautionary approach may involve approving use of water resources subject to conditions that require monitoring and adaptive management’, citing two of his own decisions on the review of planning approvals for coal mines on conditions that provided for adaptive management.69 Both approval decisions were made under broad powers of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW), since repealed. In Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185 the approval of the Moolarben mine was on the condition that ‘[t]he proponent must ensure that it has sufficient water for all stages of the project, and if necessary, adjust the scale of mining operations to match its water supply’. Other conditions required preparation of a water management plan, a ground-water monitoring plan and a ground-water response plan. There were concerns about the impact of mine operations on regional ground-water systems and the potential need for Moolarben to obtain water from neighbours, including from the adjacent mine operated by Ulan. Ulan had already said it did not wish to supply water to Moolarben and challenged the condition as uncertain and unreasonable because the condition did not specify the precise way in which Moolarben must adjust its mining operation because of insufficient water. The arguments were rejected. Notwithstanding the detailed environmental assessment and ground-water modeling processes undertaken, there was residual uncertainty, including in the ground-water modeling. The court held that reducing mine operations would still be within the parameters of mine approval and that it was reasonable for the approval to apply a precautionary approach involving numerous conditions requiring monitoring and adaptive management through the adjustment of the scale of operations: see especially [82]–[99]. [page 90]

In Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213 the approved project was for longwall mining under two rivers, a reservoir and upland swamps. The approval conditions were purportedly directed to addressing the risk of harmful consequences from subsidence that may be caused by mining under these water features. The conditions provided for the performance measures, monitoring and reporting, ongoing environmental management and the determination of offsets for adverse impacts. The applicant’s challenge included arguments that the Minister’s approval invalidly delegated responsibility for determining the conditions of mining under the swamps to the Director-General and lacked finality because it failed to deal adequately with mitigation of impacts (by offsets) on the reservoir catchment. Both arguments were rejected. Preston CJ held valid the conditions providing for the Director-General’s approval of Extraction Plans for undermining swamps pursuant to a comprehensive assessment and preparation of management plans detailing baseline data, describing proposed performance measures and indicators for these swamps, monitoring and reporting protocols, and the measures to be implemented to comply with the performance measures and indicators, plus contingency plans for adaptive management of the mining plan as mining proceeds: at [20]–[45]. His Honour was assured that another condition required the proponent to ensure that the project did not cause any exceedances of the performance measures in ‘Table 1’, yet that Table provided that the performance measures were to be set through the Extraction Plans: at [43]–[44]. Preston CJ also upheld the condition delegating to the DirectorGeneral the power to require and determine offsets if the proponent exceeded the subsidence performance measures of Table 1 and the contingency plans failed to remediate the impact or the Director-General determined that it was not feasible to remediate the impact. In this regard, Table 1 specified ‘negligible’ effects as the indicator on a suite of environmental values named as the performance measures, with the proponent required to

define more detailed performance indicators through the various management plans: at [120]–[124]. Again, his Honour was assured by conditions requiring the progressive submission of management plans in accordance with the type of requirements for the conditions underlined above, and on the premise of improvement over time. His Honour characterised the regulatory scheme as prevent, remediate and, only if that is not feasible, offset. In this way, the Director-General’s power to determine offsets was characterised as a valid precautionary response to residual risks from uncertain potential impacts: at [131]. 4.49 With respect, this approach to flexible post-approval management planning as an implementation of the precautionary principle is discredited and better displaced by a more rigorous understanding of adaptive management that requires regulatory approvals under statutory authority to set the substantive limits on the implementation of project proposals.70 This argument is pursued in chapter 27.71 For now, it is suggested that the approach to an adaptive management response in the application of a precautionary [page 91] approach has taken a different path in a sequence of three Victorian decisions that resulted in prohibition of the water development proposals. In Castle v Southern Rural Water Authority [2008] VCAT 2440, the Victorian Civil and Administrative Tribunal (‘VCAT’) set aside the grant of a water licence on the application of Castle, a neighbour, arguing that there was inadequate information and evidence to justify the grant of a licence to take 400 ML/year of ground water to irrigate agricultural land. Castle was concerned that the grant of the licence would have adverse impacts on his prior licensed ground-water use and on the flow of ground water to a nearby

lake with environmental values. While the VCAT’s reasons for decision are not enunciated with rigorous legal citation and explanation, it is apparent that the VCAT: (a) endorsed a precautionary approach to ground-water licensing because of the inherent uncertainty about the hydrogeological understanding and the purposes of the Water Act 1989 (Vic) to provide for order, equity and efficiency and sustainable use of water resources: at [43]–[44] and [51]–[52]; and (b) rejected as inconsistent with the Act the authority’s approach of issuing the licence with conditions providing for monitoring and powers to amend or revoke the licence if the monitoring showed that the exercise of the licence rights was having an adverse effect on another person, the aquifer or the environment: at [77]–[96]. The VCAT concluded at [120]: ‘We are not satisfied that reliance can be placed on conditions for monitoring or [that] purporting to grant the authority powers to significantly modify the licence can be relied upon in the absence of evidence providing the basis for a sound assessment. Monitoring, or at least metering, can certainly be warranted, but as a check upon, rather than a substitute for a justifiable decision to grant a licence in the first place.’ In Alanvale Pty Ltd and AJ & KM Graham Pty Ltd v Southern Rural Water [2010] VCAT 480 the VCAT upheld the more precautionary approach of the water authority (corporation) in refusing two licences to take, respectively, 1220 ML and 280 ML/year of ground water for pasture irrigation. The VCAT cited the Water Act’s objective of ‘sustainable use’ (s 1(d)) and water corporations’ duties of ‘sustainable management’ (s 93) in emphasising the need for a more strategic approach to ground-water management. Although there was more scientific information about the groundwater balance than in Castle, the VCAT was careful to consider the effects of climate change and climate variability, potential effects of timber plantations, uncertainties about ground water and

surface water interactions, and potential risks from coastal saline water intrusion: at [70] ff. The precautionary principle was expressed in the State Environment Protection Policy ‘Groundwaters of Victoria’ and applicable to the licensing decision. The VCAT found that preconditions for its application (threat of harm and scientific uncertainty) were met and that this warranted refusal of the licence applications even though the statutory ‘permissible consumptive volume’ (‘PCV’) for the ground-water area would not be exceeded if the applications were granted. The PCV was only administratively, not scientifically, determined by calculating the existing licence rights, and so was not reliable in assessing two new large licence applications for irrigation that may threaten stock and domestic licences drawing from a ground-water resource diminishing under [page 92] the impact of climate change. Finally, as the proposed water law reforms advocated water trading to re-distribute existing unused allocations, the applicants were encouraged to seek new water entitlements through the market. The VCAT explicitly reiterated the view in Castle that licence conditions for monitoring and amending the licences could not be used as a substitute for a justifiable decision in the first place: at [203]. In Rozen v Macedon Ranges Shire Council [2010] VSC 583 the Supreme Court upheld the second decision of the VCAT to refuse approval for subdivision of land in a rural water supply catchment because of cumulative risks to water quality that could have serious effects on human health. In an earlier decision, the court had corrected the Tribunal’s view (in its first decision) that the precautionary principle would not apply to risks of serious harm to human health (that could be reversible): Western Water v Rozen (2008) 24 VR 215. Although the second Tribunal decision refused subdivision approval because the application breached new

statutory guidelines, the Supreme Court also held that the grant of the application would be ‘contrary to the precautionary principle’ that was applicable to determining the application under the State Environment Protection Policy (Waters of Victoria), which the VCAT was expressly required ‘to take account of and give effect to’: at [36]–[43] (emphasis added). While acknowledging that precaution should not necessarily result in prohibition, Osborn J held that the Tribunal’s decision was open to it in light of the evidence and the proponent’s application being in breach of the Guidelines: at [99]. The precautionary principle was triggered and the proponent did not meet the onus of proof to negate the risks to water quality. It cannot be contrary to the precautionary principle to refuse development approval if that appears proportional to the uncertain risks of environmental damage: Lindner; Whetstone v Regional Council of Goyder [2005] SAERDC 115; Moll Pty Ltd v City of Mitcham & CCSA [2002] SAERDC 55 at [99]. However, the current suite of statutory objectives and principles provides no certain measure of when a water allocation should be refused. Those measures must come in management plans, which are the subject of Part 4.

1.

Acts Interpretation Act 1901 (Cth) s 15AA, amended in 2011. Each state and territory has a similar provision: Legislation Act 2001 (ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A(1); Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18; and see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th edn, LexisNexis Butterworths, Sydney, 2014, pp 41–53. A water management example of this provision being applied is Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170 at [12]–[39].

2.

Water Management Act 2000 (NSW) s 5; Water Act 2000 (Qld) ss 2 and 7, defining the principles of ecologically sustainable development; Natural Resources Management Act 2004 (SA) s 7(3); Water Management Act 1999 (Tas) s 6 and Sch 1. The Water Act 2007 (Cth) ss 20 and 21, relating to the purposes and general basis of the Basin Plan, perform a similar function. Water Management Act 2000 (NSW) s 6 and Natural Resources Management Act 2004 (SA) s 74.

3.

4.

See below at [4.5]–[4.22].

5.

Water Management Act 2000 (NSW) s 9; Water Act 2000 (Qld) ss 2 and 7; Natural Resources Management Act 2004 (SA) s 8; Water Management Act 1999 (Tas) s 6(2); Rights in Water and Irrigation Act 1914 (WA) s 4(3). As with Water Act 2007 (Cth) s 3 and Water Resources Act 2007 (ACT) s 6.

6. 7. 8.

Lockhart and French JJ gave judgments to similar effect in respect of power under s 10 of the Act. Water Resources Act 2007 (ACT) s 6; Water Management Act 2000 (NSW) s 3; Water Act 2000 (Qld) s 10; Natural Resources Management Act 2004 (SA) s 7(1); Water Management Act 1999 (Tas) s 6; Water Act 1989 (Vic) s 1; Rights in Water and Irrigation Act 1914 (WA) s 4; Water Act (NT) does not include a statement of objectives. See also Water Act 2007 (Cth) s 3, Objects of the Act, and s 20, Purpose of Basin Plan.

9. 10.

Water Act 1989 (Vic) s 1(d). Rights in Water and Irrigation Act 1914 (WA) s 4(1)(a); Water Resources Act 2007 (ACT) s 6(a).

11.

Water Management Act 2000 (NSW) s 3; Water Act 2000 (Qld) s 10; Natural Resources Management Act 2004 (SA) s 7(1). The Dictionary to the Act defines the principles as those described in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [107]–[124] has explained the components of the concept of ecologically sustainable development. See also Minister for Planning v Walker [2008] NSWCA 224 at [42] ff on judicial review of the effect of the duty to consider the principles of ecologically sustainable development.

12.

13. 14.

Water Act 2000 (Qld) ss 2, 7, 37, 39, 41, 58 and 182. Water Legislation Amendment Act 2016 (Qld) s 12.

15. 16.

Natural Resources Management Act 2004 (SA) s 7(3). Natural Resources Management Act 2004 (SA) s 7(2).

17. 18.

Water Management Act 1999 (Tas) s 6 and Sch 1. Water Act 2007 (Cth) s 3(b), (c) and (d).

19.

Commonwealth, Parliamentary Debates, House of Representatives, 8 August 2007, 5 (The Hon Malcolm Turnbull, Minister for the Environment and Water) (emphasis added). Water Act 2007 (Cth) s 21(4)(a), and those principles are defined in s 4(2).

20. 21. 22.

Water Act 2007 (Cth) ss 23(1) and 4. See, for example, P Kildea and G Williams, ‘The Water Act and the Murray-Darling Basin Plan’ (2011) 22 PLR 3 at 10; Parliamentary Debates, Senate, Legal and Constitutional Affairs References Committee, ‘A Balancing Act: provisions of the Water Act 2007’, Chapter 2; Australian Government Solicitor, ‘The Role of Social and Economic Factors and the Basin Plan’, 25 October 2010, referred to by the Senate Committee; A Gardner, ‘Water Reform and the Federal System’, Chapter 15 in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, Federation Press,

2012, pp 283–289; and T Bonyhady’s detailed account of the debate: ‘Putting the Environment First?’ (2012) 29 EPLJ 316. 23.

24.

Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 says at [117] that intragenerational equity is part of the concept of ecologically sustainable development. The case is discussed below in relation to the nature of the duty to implement statutory objectives.

25. 26.

The statutory objective was in Fisheries Management Act 1991 (Cth) s 3(1)(b). Commonwealth of Australia, National Strategy for Ecologically Sustainable Development, December 1992. It was endorsed by CoAG in December 1992 as a policy of general application by the Commonwealth and its agencies.

27. 28.

Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3A(a). J M Powell, Watering the Garden State, Allen & Unwin, Crows Nest, 1989, pp 15–16 and 38–40.

29. 30.

Water Management Act 2000 (NSW) s 3(c). Water Act 2000 (Qld) ss 2(2)(a), (b), (d) and 7(a); Natural Resources Management Act 2004 (SA) s 7(3)(a); Water Management Act 1999 (Tas) s 6(1)(d); Water Act 1989 (Vic) s 1(c); Rights in Water and Irrigation Act 1914 (WA) s 4(1)(b). The Queensland and South Australian provisions incorporate ‘social and equitable considerations’ into ecologically sustainable development.

31. 32.

Water Act 2000 (Qld) s 7(3). Water Management Act 2000 (NSW) s 3(c)(iv); Water Act 2000 (Qld) s 7(2)(d); Natural Resources Management Act 2004 (SA) s 7(3)(h).

33.

L O’Neill, L Godden, E Macpherson and E O’Donnell, ‘Australia, Wet or Dry, north or south: Addressing environmental impacts and the exclusion of Aboriginal peoples in northern water development’ (2016) 33 EPLJ 402. Water Management Act 2000 (NSW) s 3(d); Water Act 2000 (Qld) s 7(2)(h); Natural Resources Management Act 2004 (SA) s 7(3)(j) and (k); Water Management Act 1999 (Tas) s 6(1)(e) and (f); Water Act 1989 (Vic) s 1(e).

34.

35. 36.

Water Act 2007 (Cth) s 3(e). More v Water and Rivers Commission [2006] WASAT 112. Godden suggests that Australian water resources law gives little formal recognition to the issues of social equity, especially with a diminishing role of government and a greater role for markets in the distribution of water resource rights: L Godden, ‘Water Law Reform in Australia and South Africa: Sustainability, Efficiency and Social Justice’ (2005) 17(2) JEL 181 at 203.

37.

R Creyke, J McMillan and M Smyth, Control of Government Action: Text, Cases & Commentary, 4th ed, LexisNexis Butterworths, Sydney, 2015 at [14.2.1]–[14.2.18]. Water Management Act 2000 (NSW) s 5; Water Act 2000 (Qld) ss 10(2)(c), (3) and 11; Natural Resources Management Act 2004 (SA) s 7(3).

38. 39. 40.

Water Management Act 2000 (NSW) s 5(2) and (3). Water Management Act 2000 (NSW) s 89.

41.

The full effect of the decision in this case is discussed in chapter 16 at [16.27] ff.

42.

Rights in Water and Irrigation Act 1914 (WA) s 4(3) is not discussed here. The types of provisions that could be enacted are discussed by D E Fisher, ‘Sustainability — the Principle, its Implementation and its Enforcement’ (2001) 18(4) EPLJ 361.

43.

44.

The New South Wales Act also provides in s 9(2) that ‘It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan’. The effect of this provision is discussed below. Water Legislation Amendment Act 2016 (Qld) amending the provisions of the Water Reform and Other Legislation Amendment Act 2014 (Qld). Water Act 2000 (Qld) s 37. The former implementing duty of s 12 — ‘[i]f, under this chapter, a function or power is conferred on an entity, the entity must perform the function or exercise the power in a way that advances this chapter’s purpose’ — was repealed by Water Reform and Other Legislation Amendment Act 2014 (Qld).

45. 46.

Natural Resources Management Act 2004 (SA) s 8. Water Management Act 1999 (Tas) s 6(2).

47. 48.

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105. Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154; 36 VR 281, applying High Court authority in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. See also Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [73]–[80].

49.

See also Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 95 LGERA 229, and Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401. As to the subsequent application of the principle defined by Dixon J, see R Creyke, J McMillan and M Smyth, Control of Government Action, 4th edn, LexisNexis Butterworths, Australia, 2015 at [9.3.10]–[9.3.11].

50.

51.

52. 53.

54.

55. 56. 57. 58.

This case is discussed at length by D E Fisher, ‘Considerations, Principles and Objectives in Environmental Management in Australia’ (2000) 17 EPLJ 487 at 497– 499. In doing so, his Honour was applying s 15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth). Rosemount Estates Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 1, quoted by Cole JA in the New South Wales Court of Appeal in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 71. G Dwyer and M Taylor, ‘Moving from consideration to application: The uptake of principles of ecologically sustainable development in environmental decisionmaking in New South Wales’ (2013) 30 EPLJ 185. A Edgar, ‘Between rules and discretion: Legislative principles and the “relevant considerations” ground of review’ (2013) 20 AJ Admin L 132. Water Management Act 2000 (NSW) s 6; Natural Resources Management Act 2004 (SA) s 74. Water Management Act 2000 (NSW) s 6. Water Management Act 2000 (NSW) s 6(6). The initial SWMOP was promulgated by the State Water Management Outcomes Plan Order 2002 (NSW) and has ceased to

have effect: status information for this Order: . In contrast, the Government of South Australia adopted ‘Our Place Our Future: State Natural Resources Management Plan 2012–2017. 59. 60.

The Murray-Darling Basin Ministerial Council Cap is discussed in Part 4. Water Management Act 2000 (NSW) ss 3 and 4, incorporating Protection of the Environment Administration Act 1991 (NSW) s 6; Water Act 2000 (Qld) ss 2(2)(a) and 7(b), defining the precautionary principle in conventional terms; Natural Resources Management Act 2004 (SA) s 7(3)(b) and (c).

61.

N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, Oxford, 2002, ch 3; A Deville and R Harding, Applying the Precautionary Principle, Federation Press, Sydney, 1997; J Peel, The Precautionary Principle in Practice, Federation Press, Sydney, 2005; The Hon Justice Brian Preston, ‘Water and Ecologically Sustainable Development in the Courts’ (2009) 6 McJICEL 129 at 143–145; G Bates, Environmental Law in Australia, 9th edn, LexisNexis Butterworths, Sydney, 2016 at [8.56]–[8.74]. Protection of the Environment Administration Act 1991 (NSW) s 6(2)(a). The definition of the principle that applies in New South Wales is taken from the 1992 Intergovernmental Agreement on the Environment, which is contained in a Schedule to the National Environment Protection Council Act 1994 (Cth). The precautionary principle is defined at s 3.5.1 of the Agreement. The Queensland definition incorporates the first part of this definition, and the South Australian definition incorporates both parts, though set out in two separate paragraphs.

62.

63.

64. 65.

66.

A Roberts and A Gardner, ‘Challenges for the management of water resources in Western Australia: A legal response to findings of the public sector performance report, 2003’ (2005) 22 EPLJ 40 at 46–47. J Peel, The Precautionary Principle in Practice, p 227. There was even less discussion of the precautionary principle by the New South Wales Court of Appeal in the appeal decision: Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11. The ongoing value of Preston CJ’s exegesis is seen in such cases as Rozen v Macedon Ranges Shire Council [2010] VSC 583 at [44]–[46] and Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2) [2016] NSWLEC 16 at [85].

67. 68.

[2006] NSWLEC 133 at [129] ff. Preston CJ cites M-C Cordonier Segger and A Khalfan, Sustainable Development Law: Principles, Practices and Prospects, Oxford University Press, Oxford, 2004, pp 145– 146.

69. 70.

B Preston, ‘Water and Ecologically Sustainable Development in the Courts’ (2009) 6 MqJICEL 129 at 143. J Lee and A Gardner, ‘A peek around Kevin’s Corner: Adapting away substantive limits?’ (2014) 31 EPLJ 247; J Lee, ‘Theory to practice: Adaptive management of the groundwater impacts of Australian mining projects’ (2014) 31 EPLJ 251.

71.

See .

[page 93]

Part 2 THE CONSTITUTIONAL AND ADMINISTRATIVE FRAMEWORK OF WATER RESOURCES MANAGEMENT This Part discusses the framework for water resources management in Australia provided by: the Commonwealth and state constitutions; the administrative framework, especially the state and Commonwealth institutions; and the arrangements for management of interstate water resources, especially in the Murray-Darling Basin.

[page 95]

5 THE CONSTITUTIONAL FRAMEWORK FOR WATER RESOURCES MANAGEMENT by Gerard Carney, Murray Wesson and Alex Gardner

Introduction 5.1 The control of water resources in Australia is traditionally the responsibility of the states. The Commonwealth was not given an express legislative power over this resource at federation but has the capacity to affect, directly and indirectly, water resources management through several of its legislative and financial powers. Until 2007, this had occurred mainly by the adoption of policy guidelines and the provision of financial assistance in relation to environmental protection and the fostering of interstate trade in water entitlements. Due to its limited powers in this area, the Commonwealth had promoted cooperative arrangements with the states. 5.2 However, the enactment of the Water Act 2007 (Cth) involves the new assertion of Commonwealth legislative powers as well as, by amendment in 2008, the exercise of powers referred to the Commonwealth by the states. The Water Act establishes a new

national framework for gathering and disseminating water resources information. More significantly, the Water Act establishes for the Murray-Darling Basin (‘MDB’) a new framework for defining environmental limits on water resources exploitation and new rules for enhancing the interstate water market. Nevertheless, state law remains the foundation for the water resources entitlement regimes, and the reason for that is constitutional. 5.3 This chapter begins with an outline of the states’ constitutional authority under both the powers that accrue to state governments by virtue of their ownership of natural resources and their general legislative powers, which are subject to certain limits under the Commonwealth Constitution and their own constitutions. Second, the chapter outlines the legislative powers of the Commonwealth, including its power to override state law. Third, it briefly notes the powers of the territories. Fourth, it explains the constitutional basis for the use of cooperative federal schemes for water resources management, including the referral of state powers to the Commonwealth that underlies the expansion of its regulation of water resources through the Water Act 2007 (Cth).

State authority 5.4 The constitutional authority of the state governments to regulate and manage water resources derives only from statute. The legal history of the development of colonial [page 96] self-government has left the contemporary state governments with no prerogative (ie common law) executive powers to manage those

resources, even though most state and territory governments make statutory claims of ‘ownership’ of most of our water resources.

‘Ownership’ powers of the states1 5.5 Upon settlement of Australia by the British Imperial Government in the late eighteenth and early nineteenth centuries, the sovereign title to all land and waters of Australia, and all the natural resources contained therein, vested in the British Crown. The convenience of this legal fiction for the enterprise of colonial governance was that all private rights to land, which also gave rights of access to water resources, could only be obtained by a grant from the Crown, typically of a right to ‘fee simple’ or full legal title to land. At common law, the fee simple title gave the land owner exclusive access to and control of the natural resources on the land, subject only to the reservation to the Crown of the royal metals (gold and silver). The legal fiction of the British Crown’s sovereign title was qualified, much later in 1992, by the common law recognition of native title to land and waters, which is discussed in chapter 13. 5.6 In the early colonial era, the governors exercised their powers to grant rights to Crown or ‘waste’2 lands upon the instructions of the Imperial Government, which controlled the revenues from the grants. The value of that revenue was not lost on the developing citizenry of the Australian colonies. As the colonies obtained powers of ‘responsible’ self-government3 from the Imperial Government, they also sought control of the waste lands of the colonies. This was achieved by the Imperial legislation that granted self-government, conferring on each of the colonial legislatures ‘the entire management and control of the waste lands belonging to the Crown in [the colony]’.4 The Imperial constitutional legislation also conferred on the colonial legislatures the power to appropriate the proceeds and revenues arising from the grant of legal rights to those waste lands and the power to legislate for regulating the sale, letting, disposal and

occupation of the waste lands. Henceforth, the colonial governors’ powers to grant rights to the natural resources of the waste lands were governed entirely by colonial statute. These colonial arrangements were inherited by the states on federation in 1901.5 [page 97] 5.7 The colonial, later state, legislatures used these legislative powers to create new types of statutory tenures or entitlements for the grant of rights to natural resources in the vast Australian hinterland. Tenures named as leases, licences and permits gave rights to occupy waste lands for the specific purposes defined by statute — for example, pastoral grazing of livestock, timber harvesting, mining and access to water. Even Crown grants of fee simple land title, which were still granted for the use of land for residential, industrial and agricultural purposes, were qualified by the prospective reservation of rights to minerals. In some cases, the states legislated with retrospective effect to claim sovereign title to mineral and petroleum resources underlying private land held in fee simple title.6 5.8 The nature of natural water resources, both on and below the surface of land, prevents water being the subject of absolute ownership in the same way as land and minerals. At common law, water is not capable of ownership until it is captured from its natural resource state by the exercise of rights of access. Those rights of access were incidents of private land title or rights of access to public lands. Over time, however, most of the colonial and state legislatures have also exercised their legislative powers to claim a sovereign ‘ownership’ of water resources as a foundation for legislative regimes that codify certain basic water access rights and authorise the executive government to grant major statutory rights to access water. The effect of the states’ rights to water is discussed in chapter 9.

5.9 Aside from their land boundaries,7 the territorial boundaries of the states are drawn from their coastlines. The legal foundation for these boundaries is the Commonwealth declaration of sovereignty over the offshore waters in the Seas and Submerged Lands Act 1973 (Cth). This Act was upheld by a majority of the High Court as an exercise of the external affairs power giving effect to relevant international conventions: New South Wales v Commonwealth (Seas and Submerged Lands Act case) (1975) 135 CLR 337. Certain practical difficulties in the administration of state laws led the Commonwealth and the states to agree to the 1979 Offshore Constitutional Settlement. The Commonwealth and state complementary legislation8 to implement this agreement confers on the states a qualified proprietary ownership and a general legislative power over the ‘coastal waters’, being the area within three nautical miles (nm) of the coastline as defined by the ‘baseline’ determined by the Commonwealth under international law. Any waters on the landward side of the baseline (such as bays, inlets and lagoons) have the same legal status as the land territory of the states. The Commonwealth retains sovereign legal powers over the territorial sea, which extends 12 nm from the baseline, and the maritime zones beyond that are recognised at international law. [page 98] 5.10 Let us turn now to the states’ legislative powers to establish not only rights to natural waters but also the contemporary statutory regimes of water rights.

Legislative powers of the states Plenary legislative power 5.11 All state parliaments are vested with a general legislative power to enact laws for the peace, welfare (or order) and good

government of their respective state.9 This does not mean that their laws are invalid if it could be established that they are not laws of ‘good government’. If this were so, the courts would be inundated with constitutional challenges to state legislation; the courts would be embroiled in political controversies; and the business of government would come to a standstill. For those reasons, the general legislative power of the states is, on its face, without limit except in so far as specific restrictions cut back on such a plenary power. These restrictions are found primarily in the Commonwealth Constitution (‘the Constitution’), although a few older restrictions continue to apply under the state constitutions from pre-federation colonial times. It is pursuant to this general legislative power that the states have regulated water management within their boundaries, subject to various restrictions under the Constitution.

Limits under the Commonwealth Constitution 5.12 The most significant of those express restrictions on state power respecting water regulation are: section 109, whereby the Commonwealth can override inconsistent state laws — provided the Commonwealth law is valid in itself. Such an inconsistency can arise directly where, for instance, the Commonwealth law prohibits what the state law permits or requires. Or it may arise indirectly where the Commonwealth intends its law to exhaustively regulate a field and the state law is seen to trespass on that field; section 92, which renders state and Commonwealth laws invalid if they violate the freedom of interstate trade, commerce and intercourse. This can only occur if the law discriminates against interstate trade to protect competitive local trade, and is protectionist in character: Cole v Whitfield (1988) 165 CLR 360. Even if the local trade benefits from the law at the expense of interstate competition, it may still not be ‘protectionist’ in character if this arises incidentally in the course of protecting

some other public interest, such as the conservation of a natural resource or the prevention of pollution or infectious disease across state borders; section 90, which prohibits the states from imposing customs and excise duties. The imposition of such duties is thereby exclusive to the Commonwealth under its tax power in s 51(ii). While a customs duty is imposed on the act of importing goods into [page 99] Australia, an excise duty is imposed on goods within Australia (whether imported or not) from the earliest stage of their creation up to just before the act of consumption. What constitutes an excise has proved very difficult for the High Court to define. The states have endeavoured to avoid s 90 by raising revenue through, for instance, licensing fees for the privilege of producing, distributing or selling goods, especially liquor, tobacco and petrol. The High Court effectively shut down these schemes in Ha v New South Wales (1997) 189 CLR 465 on the basis that, in substance, these licence fees were excise duties on those goods. In Queanbeyan City Council v ACTEW Corp (2011) 244 CLR 530 the High Court held that imposts placed upon ACTEW, a supplier of water, by Australian Capital Territory legislation were not duties of excise within the meaning of s 90. ACTEW was effectively under the control of the territory executive, which meant that the imposts were not taxes but aspects of the internal financial arrangements of the territory government. Whether water constitutes a ‘good’, so that a state or territory tax on water is vulnerable to a s 90 challenge as an excise duty, was therefore left undecided; and section 117, which protects residents of a state from being discriminated against in another state — unless this can be

justified on public policy grounds: Street v Queensland Bar Association (1989) 168 CLR 461. 5.13 There are other restrictions on state power that have been implied by the High Court from the Commonwealth Constitution. Of potential relevance to water regulation are: the immunity that the Commonwealth enjoys from being regulated by state law — at least in so far as the Commonwealth’s capacities are immune, but not the transactions entered into by the Commonwealth in exercise of those capacities: Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; the implied freedom of political communication, which prevents the states (and the Commonwealth) from unjustifiably impeding the right to discuss governmental and political affairs at the federal and state level: see, for example, McCloy v New South Wales (2015) 257 CLR 178; and Chapter III, which protects the institutional integrity of state courts in so far as they are part of the integrated Australian judicial system: Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51.10 While the impact of Chapter III is greater on the Commonwealth judicial system, state courts also benefit from its protective cloak when they are vested with federal judicial power pursuant to s 77(iii) and so become integrated into that system.

Other limits on legislative powers 5.14 As for the surviving colonial constitutional legacy, the following restrictions on state legislative powers may have relevance to water regulation. [page 100]

Extraterritorial competence 5.15 The states possess a limited extraterritorial competence to legislate beyond their borders, including the low-water mark around their coasts. Originally, this restriction was assumed by the imperial authorities to eliminate the risk of jurisdictional clashes within the British Empire. Today, it is justified on the basis of reducing such clashes within the federal system. For a state law validly to extend beyond that state’s boundaries, it is necessary to establish that there is ‘a sufficient connection’ with the interests of that state.11 Such a connection is established, for instance, in relation to fisheries legislation where the state intends to protect its commercial fishing industry. The position is different in relation to each state’s offshore waters where the Commonwealth has given the states a statutory capacity to regulate within three nautical miles of the territorial sea, without the need to satisfy a sufficient connection test. This offshore regime is considered further below. 5.16 More difficult issues can arise where the state law purports to extend across a state’s land boundaries. A prominent example of this occurred in relation to the Clean Waters Act 1970 (NSW), which made it an offence ‘to pollute any waters’ (s 16(1)) and deemed a person to so pollute if they allowed a substance to be washed into the water (s 16(2)). A farmer who sprayed his crops with an insecticide in Queensland that was washed by rainfall into the Barwon River was prosecuted under s 16 for polluting the river. The middle of the Barwon River forms the boundary between Queensland and New South Wales. The farmer defended the charge on the basis that the NSW Act did not extend to acts committed outside New South Wales. The NSW Court of Criminal Appeal in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 rejected this argument, holding that the NSW Act validly applied to acts committed outside New South Wales provided they caused pollution in NSW waters.

Entrenchment 5.17 Entrenchment of state legislation refers to legislation which is unable to be amended simply by a Bill which is passed in the normal manner by a simple majority of members in each house of parliament. Instead, the Bill must be passed by a special procedure that is usually more difficult to comply with, such as an absolute majority of the members. The most restrictive form of entrenchment is requiring the Bill to be approved by the electorate at a referendum. This is, of course, what is required for amendments to the Constitution under s 128. 5.18 State constitutions, however, are not fully entrenched in that way. The states are unable to entrench their legislation (including their own Constitution Acts) except in rather limited circumstances. Essentially, those circumstances are now prescribed by s 6 of the Australia Acts 1986, previously the proviso to s 5 of the Colonial Laws Validity Act 1865 (Imp). Section 6 provides: … a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be

[page 101] of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

The High Court of Australia held that s 6 of the Australia Act 1986 (Cth) makes an entrenchment provision binding on a state parliament enacting a law with respect to its ‘constitution, powers or procedures’: Western Australia v Marquet (2003) 217 CLR 545; [2003] HCA 67 at [67]. If this is the only source of binding force for an entrenchment provision, it means that only provisions that are concerned with the ‘constitution’ or composition of the

parliament, its actual powers or procedure (eg parliamentary privilege) are able to be ‘entrenched’. 5.19 Consequently, legislation concerned with water regulation, including legislation designed to give effect to commercial agreements, is unable to be entrenched, and remains liable to change by ordinary statutory amendment. This may be so, for instance, in relation to the attempt by the Victorian Parliament in the Constitution (Water Authorities) Act 2003 (Vic) to entrench in s 18(2) of the Constitution Act 1975 (Vic) the continuation of the delivery of water services by a public authority responsible to a minister. Although not binding, the special procedure requiring any amendment to be passed by a two-thirds majority in each House serves to highlight the public importance of any such amendment. 5.20 An alternative view of the effect of entrenchment is that a restrictive procedure inserted in the Constitution Act is binding even if it is not directly about the constitution, powers or procedure of the parliament: Bribery Commissioner v Ranasinghe [1965] AC 172 at 197, City of Collingwood v Victoria (No 1) [1993] 2 VR 66; City of Collingwood v Victoria (No 2) [1994] 1 VR 652; BHP v Dagi [1996] 2 VR 117. While the High Court in Marquet commented negatively, obiter dicta, about the potential application of this doctrine in Australia, it did not need to decide the issue and did not entirely exclude its possible application in Australia: at [80].12 Thus, it is arguable that important propositions of water regulation could be given a constitutional value by insertion into a state constitution with the protection of an entrenchment provision.

Commonwealth authority 5.21 Unlike the states, the Commonwealth is vested by the Constitution with only specific legislative powers. None of them

directly covers water regulation or indeed any natural resources, except for fisheries in Australian waters beyond territorial limits (s 51(x)). Control of natural resources was always intended by the drafters of the Constitution to remain within state responsibility. Nonetheless, as outlined below, certain Commonwealth powers provide some scope for Commonwealth regulation of water resources, in particular, through the corporations power in s 51(xx). In contrast, [page 102] the Commonwealth is not restricted in this way in relation to its territories (significantly, the Australian Capital Territory and the Northern Territory); s 122 vests it with wide legislative power in the territories comparable with that enjoyed by the states over their respective territory. Consequently, the Commonwealth has clear power to regulate all natural resources including water in its territories. This power is not restricted by the granting of selfgovernment to a territory, such as the Australian Capital Territory and the Northern Territory. 5.22 Far more complex is the Commonwealth’s capacity to interfere with the states’ regulation of water within their boundaries. The Commonwealth must first rely on one or more of its specific legislative powers and then ensure that its regulation does not violate any potential constitutional restriction on its powers, such as the Melbourne Corporation principle, which guarantees the continued existence of the states and their capacity to function as such, and s 51(xxxi), which requires the payment of just terms compensation for any compulsory acquisition of property from any state or person. 5.23 The Commonwealth cannot directly regulate the water resources within a state unless there is a sufficient connection with one of its heads of legislative power. The main potential heads of

power are the powers in s 51 to make laws with respect to: para (i) interstate and overseas trade and commerce; para (xx) foreign, trading and financial corporations; and para (xxix) external affairs. Additional support may be derived from the defence power in para (vi) and the implied nationhood power. The Commonwealth may also indirectly regulate water resources through its taxation regime (s 51(ii)) and its financial powers (ss 83 and 96). Each of these powers is now considered in turn. We do not consider specifically other minor s 51 powers cited in the Water Act 2007 (Cth) s 9, such as para (v) postal, telegraphic, telephonic, and other like services; para (viii) astronomical and meteorological observations; para (xi) census and statistics; and para (xv) weights and measures. Separate consideration is given below to the reference power in s 51(xxxvii) whereby state parliaments may refer their legislative powers to the Commonwealth Parliament. This power is the basis of more extensive Commonwealth regulation of the MDB water resources under the Water (Amendment) Act 2008 (Cth).

Interstate and overseas trade and commerce power 5.24 Section 51(i) empowers the Commonwealth to regulate directly all activities of interstate and overseas trade and commerce. The essence of this power is the movement of goods and services in the course of trade and commerce between the states and between Australia and overseas. The movement of water through the river systems that flow from one state into another does not alone constitute interstate trade or commerce, since the mere movement of the river flow does not occur in the course of trade or commerce. It follows that s 51(i) does not directly empower the Commonwealth to protect the river flow from being depleted or polluted. For instance, in Lee v Commonwealth (2014) 220 FCR 300 at [126], North J held that ‘Sustainable Diversion Limits’ (SDLs), required under the Water

Act 2007 (Cth) to ensure sustainable use of the Murray-Darling Basin, [page 103] could not be made under s 51(i). As the Full Court explained on appeal, the operation of the SDLs on the commercial activity of irrigation did not make them a regulation of interstate trade and commerce: Lee v Commonwealth [2014] FCAFC 174 at [122]–[123]. That some of provisions of the Water Act may be supported in some of their operation by s 51(i) did not mean that the remainder of the challenged provisions should be characterised as relating to overseas or interstate trade and commerce. As the challenged provisions were directed mainly at implementing international agreements and made under the external affairs head of power in s 51(xxix), they were not made in reliance on s 51(i): Lee v Commonwealth [2014] FCAFC 174 at [132]–[138] per Middleton, Barker and Griffiths JJ. Nonetheless, commercial activities that occur in, on or under a river across a state border, such as an interstate river transport service, could be directly regulated by the Commonwealth under the s 51(i) power, since such a service is in itself an activity of interstate trade or commerce. Further, s 51(i) has been called in support of the so-called ‘water trigger’ found in ss 24D and 24E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).13 These sections require ministerial approval for actions involving coal seam gas development or large coal mining development, where the action is taken for the purposes of interstate or international trade and commerce, and where there will be a significant impact on a water resource. Section 51(i) also allows the Commonwealth to regulate the interstate water market. For example, the Water Act 2007 (Cth) provides for the making of water trading rules as part of the Basin Plan under Part 2,14 and the water charge rules15 and water market

rules16 under Part 4 are likely supported by s 51(i) if the rules operate on interstate water trade but may be supported by another s 51 head of power, including s 51(xxxvii), if they are operating not directly on activities of interstate water trade but, rather, on activities of intrastate trade only.17 5.25 The incidental scope to s 51(i) empowers the Commonwealth to regulate any activity that has a sufficient connection with interstate or overseas commerce. Such a connection exists where it is necessary to regulate that activity in order to make effective the regulation of interstate or overseas commerce. It is on this basis that the Commonwealth may be able to regulate the flow of interstate rivers where that flow is needed, for instance, for agricultural production destined for interstate or overseas commerce. It is well established that the incidental scope of s 51(i) empowers the Commonwealth to regulate intrastate commercial activities (such as production) where they are [page 104] sufficiently connected to interstate or overseas trade and commerce. A classic example of this capacity is seen in O’Sullivan v Noarlunga (1954) 92 CLR 565, where the High Court upheld the validity of Commonwealth regulations that regulated abattoirs but only in so far as they processed meat for export. In that case, the abattoirs concerned were designed to produce meat products exclusively for the overseas trade. Fullagar J, at 598, expressed the potential for Commonwealth regulation of the export trade in very wide terms: By virtue of that power all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such matters include not only grade and quality of goods but packaging, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an

export market by developing it or impairing it. … It may very reasonably be thought necessary to go further back, and even to enter the factory or the field or the mine. How far back the Commonwealth may constitutionally go is a question which need not now be considered, and which must in any case depend on the particular circumstances attending the production or manufacture of particular commodities. But I would think it safe to say that the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export.

5.26 The picture is not as clear where it is unknown during the production process how much of its output will end up in overseas trade. But it seems likely that, provided some part of the process is intended for export, the Commonwealth should be able to regulate the entire process as this will be necessary to ensure that it regulates that part of the production output that is exported: see Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) 108 CLR 189 at 213, 220 and 226; Redfern v Dunlop Rubber Australian Ltd (1964) 110 CLR 194. These principles apply equally to the regulation of intrastate production activities that are sufficiently connected to interstate trade and commerce. 5.27 However, can the Commonwealth engage in water regulation within a state if it can establish that its regulation will affect the production of goods destined for interstate or overseas trade and commerce? For instance, could Commonwealth regulation extend to protect the quality of water used to irrigate crops or to irrigate grass feed for stock, some proportion of which is destined for interstate or overseas trade? Could it also protect the flow of water in interstate or even intrastate rivers for irrigation in the production of those crops or grass feed? 5.28 The restricted extension of s 51(i) to the regulation of activities of intrastate trade and commerce is in stark contrast with the scope of the commerce clause in the United States Constitution (Art 1, s VIII(3)) which is expressed in similar terms to s 51(i): ‘to regulate commerce … among the several States’. This power has been interpreted by the US Supreme Court to regulate virtually all intrastate commerce because of the commercial effect

such trade inevitably has on interstate trade. Consequently, the Report of the Constitutional Commission in 1988 noted the observation of Professor Clark that [page 105] the US Government dominated water management issues in that country.18 That said, the US law governing entitlements to take or abstract water is still state-based law, albeit that it operates within an extensive framework of federal law.19 5.29 However, the latest High Court authority, Attorney-General (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (1976) 138 CLR 492, rejected this US approach based, in effect, on the indivisibility of commercial activity: to adopt that approach would undermine the clear terms of s 51(i) which precluded the grant of power to the Commonwealth over intrastate trade and commerce. If the High Court were to follow the US jurisprudence, it would give to the Commonwealth a far greater capacity to control water management in Australia. 5.30 As the Australian High Court has not adopted that approach, it is doubtful on current authority that s 51(i) would support the Commonwealth regulation of water resources as an input into the production of goods destined for interstate and overseas trade and commerce. It is also still an open to question whether s 51(i) would support Commonwealth regulation of intrastate water markets, even if the interstate and intrastate water trade is entwined with interacting transactions.

Section 100 restriction 5.31 Section 100 imposes a restriction on the Commonwealth, namely:

The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents20 therein to the reasonable use of the waters of rivers for conservation or irrigation.

So far the High Court has confined this restriction as applicable only to laws that fall within the interstate and overseas trade and commerce power in s 51(i), including those within s 98, which provides that ‘[t]he power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State’. 5.32 There is an ambiguity in the phrase ‘any law or regulation of trade or commerce’, which appears in s 100 as well as in s 99: ‘The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.’21 Might that phrase encompass laws within the other heads of Commonwealth power, like the corporations power in s 51(xx), which [page 106] happens to impact on trade and commerce? The same issue arises under s 101, which refers to the powers of the Inter-State Commission by reference to ‘the provisions of this Constitution relating to trade and commerce’, and under s 102, which empowers the Commonwealth to forbid, ‘by any law with respect to trade or commerce’, certain railway discriminations. On their face, these references to laws of ‘trade and commerce’ do not appear confined to laws enacted under the interstate and overseas trade and commerce power in s 51(i). Such a phrase could also include laws regulating or affecting intrastate trade and commerce, enacted under many Commonwealth powers including the taxation power, the corporations power, the defence power, the postal and telegraphic power and the territories power.22 5.33

Nonetheless, the High Court in Morgan v Commonwealth

(1947) 74 CLR 421 at 455 and 458 confined the reference to laws of ‘trade and commerce’ in ss 98–102 to laws made only under s 51(i). In that case, the court rejected a challenge to certain National Security (Rationing) Regulations based on the argument that the regulations effected a preference in violation of s 99, because these regulations had been enacted pursuant to the Commonwealth’s defence power, not s 51(i). Latham CJ, Dixon, McTiernan and Williams JJ, at 455, left open whether s 99 applied to a law made under s 51(i) and another head of power, although Starke J at 458 thought it would. 5.34 The joint judgment relied on the fact that s 99 prohibits only a preference being given to one state or a part thereof over another state or a part thereof. This reflected the limited nature of the s 51(i) power to regulate interstate trade and commerce. The lack of express power over intrastate trade and commerce in s 51(i) explains why s 99 does not prohibit a preference being given to one part of a state over another part of that state. In other words, s 99 was clearly drafted on the implicit assumption that it only restricted an exercise of power under s 51(i). In the opinion of the joint judgment, at 454, this view was reinforced by the context and setting of s 99 among a group of sections in the Constitution — ss 98 to 102 — all of which deal with trade and commerce on the basis of the same assumption. The joint judgment concluded, at 455: This whole group of sections, including s 99, should be read as applying only to laws which can be made under the power conferred upon the Commonwealth Parliament by s 51(i).

5.35 This approach in Morgan was followed in relation to s 100 by three justices of the High Court in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1.23 Tasmania argued that s 100 was violated by ss 7 and 10 of the World Heritage Properties Conservation Act 1983 (Cth), which prohibited the Hydro-Electric Commission from constructing a dam across the Franklin River. Mason, Murphy and Brennan JJ simply followed Morgan’s case to

reject this argument on the basis that s 100 was not in issue as the impugned provisions were enacted pursuant to the corporations power [page 107] in s 51(xx), not s 51(i). Mason J, at 154, acknowledged there was difficulty with this approach: At first glance it may seem somewhat artificial to confine the restriction on legislative power to laws made … in exercise of one power when a somewhat similar effect in relation to the use of waters of rivers by a State and its residents for conservation or irrigation might be achieved by the Commonwealth in the exercise of other legislative powers. … The answer to the question probably lies in the importance of the Murray River to New South Wales, Victoria and South Australia and the residents of those States and the apprehensions entertained by them as to the impact of the Commonwealth’s legislative process under ss 51(i) and 98.

5.36 His Honour, at 154, relied on the terms of s 98 as suggesting ‘that the primary purpose of s 100 was to safeguard the rights of a state and its residents to the use of waters in rivers used for interstate trade and commerce including navigation and shipping, viz., the Murray River’. Mason J, at 153, left open whether s 100 merely imposes a restriction on Commonwealth power when legislating under ss 51(i) and 98, or whether it goes further and operates as a guarantee of access to the use of waters for the purposes of conservation or irrigation by riparian states and their residents. Brennan J, at 248–249, considered that: ‘[a] law or regulation of trade or commerce’ is apt to describe a law or regulation in reference to the power that does or could support it, for it is a phrase speaking of a class of laws or regulations identified elsewhere in the Constitution.

5.37 Section 100 was considered by the High Court again in Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242. Under the National Water Commission Act 2004 (Cth), New South Wales and the Commonwealth entered into a Funding Agreement whereby New South Wales undertook

to reduce water entitlements of water licence holders in the Lower Murray Groundwater System, and to substitute aquifer access licences for bore licences. The appellants contended that the Funding Agreement was a regulation of trade and commerce that contravened s 100 of the Constitution. French CJ, at [23], declined to overrule Morgan, although his Honour noted that the artificiality of its consequences remained. In French CJ’s view, of greater significance to the issue in Arnold was that the phrase ‘waters of rivers’ in s 100 could not be taken to refer to underground water but must mean waters flowing in ‘defined channels’: at [28]–[29]. Gummow and Crennan JJ, at [54], and Hayne, Kiefel and Bell JJ, at [75], likewise held that s 100 had no application to underground water. 5.38 Section 100 was also considered by the Federal Court in Lee v Commonwealth (2014) 220 FCR 300. The plaintiffs challenged the Water Act 2007 (Cth) on a number of grounds, including that the fixing of ‘sustainable diversion limits’ interfered with their reasonable use of the waters of rivers and therefore breached s 100. In making these arguments, the plaintiffs referred to annual volumetric amounts of water usage that had historically been enjoyed by horticulturalists along the Murray River. In effect, they asserted that s 100 gave rise to a constitutional right of access to water, enforceable by individuals and giving rise to quantifiable entitlements. This conception of s 100 is at [page 108] odds with the long existence in Australia of state-based regimes of water access rights that now determine water allocations as a proportional share of an overall consumptive pool, taking into account variable water availability and climate.24 Other scholarly analysis has also concluded that s 100 ‘was designed to be a limitation on Commonwealth power, and in particular s 51(i)’.25

In any event, North J took the view, at [101], that it was for the High Court to depart from Morgan and that s 100 did not have application given that the challenged provisions could not be characterised as with respect to s 51(i). This decision was upheld by the Full Court: Lee v Commonwealth [2014] FCAFC 174 per Middleton, Barker and Griffiths JJ at [107]. Leave to appeal to the High Court was refused: Lee v Commonwealth [2015] HCATrans 123. 5.39 As for the purpose of s 100, a similar view to that intimated by Mason J in the Tasmanian Dam case was expressed by the report of the Constitutional Commission in 198826 which emphasised the seriousness with which New South Wales, Victoria and South Australia in the 1890s viewed the issue of the water management of the MDB: Lengthy debates therefore occurred at several sessions of the Constitutional Convention before Federation on the problem of reconciling the aims of the upstream colonies to develop irrigation and their new railway systems, and the need for South Australia to maintain adequate flows for navigability and to protect its river trade. Eventually, the combined effect of s 51(i) and s 98 was thought sufficient to reassure South Australia that the new Commonwealth would see to the maintenance of navigability and protect the river trade against unfair competition from upstream railways. Section 100 was intended to assure New South Wales and Victoria that the conservation of water for irrigation would also be protected.

5.40 The report acknowledged that the concern of South Australia over railway competition was a dead issue by the time the River Murray Waters Agreement was signed in 1914. The River Murray Commission was established to ensure adequate water flow for South Australia. Thereafter, the primary concern for all three states was the supply of irrigation water. In 1987, the Commonwealth enacted the River Murray Waters Amendment Act 1987 (Cth) to provide for a new Murray-Darling Basin Commission (‘the Commission’) and a supervising Ministerial Council. The Constitutional Commission recommended that no amendment to s 100 was necessary, at least until these new arrangements were given an opportunity to take effect.27 The

ongoing development of the MDB Agreement is discussed in chapter 7. [page 109] 5.41 Even if s 100 is confined to laws that fall within the interstate trade and commerce power in s 51(i), including those concerned with navigation and shipping within s 98, could it remain a potentially significant restriction on Commonwealth power in so far as the Commonwealth wishes to regulate the major interstate river systems? The best potential example for the operation of such a restriction would be on the limits on water abstraction and rules for water trading being imposed by the Basin Plan under the Water Act 2007 (Cth). However, as we saw in Lee v Commonwealth at [5.38] above, such limits have not been interpreted as within the scope of s 100 because they were, mostly, not made in reliance on s 51(i). Also, the Commonwealth laws effecting water regulation extend beyond concerns with limits on water abstraction and interstate water trade to the routine management of water flows and water infrastructure as well as the exceptional management of water flows to meet critical human needs and the adjustment of water entitlements in irrigation districts. In those respects, the Commonwealth laws are most likely supported by other Commonwealth legislative powers, including those conferred by the constitutional support of the states via s 51(xxxvii). We conclude that only a small part of the Commonwealth’s laws would be supported by s 51(i). In any case, s 100 only prevents the Commonwealth from ‘[abridging] the right of a state or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation’. In 1901, the reference to ‘conservation’ was apparently meant to cover the impounding or damming of water.28 Today, it is arguable that a Commonwealth law which promotes an environmentally sustainable use of river water would not violate

this provision, since this would be intended to provide for the ‘reasonable use’ of the river water. The irrigators’ loss in Lee may mean that there is little prospect of the courts needing to address the substantive effect of s 100.

Corporations power 5.42 Since New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 the Commonwealth can rely on its power with respect to foreign, trading and financial corporations under s 51(xx) (referred to as the corporations power) to regulate corporations engaged in the water resources industry. All these corporations would be trading corporations. More significantly, the Commonwealth can regulate water use by all corporations within the scope of s 51(xx). While the Commonwealth does not have the power to regulate directly water use by the general populous, since the Work Choices case it does have the power to do this in relation to all constitutional corporations. Their taking and use of water does not have to be directly linked to their ‘trading activities’. A law which regulates the taking and use, or consumption, of water by a constitutional corporation would now be recognised by the High Court as a law with respect to those corporations within s 51(xx). The Commonwealth has not delayed in capitalising on its enhanced power by using the corporations power to regulate under the Water Act 2007 (Cth) the activities of s 51(xx) corporations both as participants in the management of water resources and as consumers. For instance, constitutional corporations are required to comply with the [page 110] Basin Plan (ss 35, 36(2) and 37(2)) and a water resource plan (ss 59, 60(2) and 61(2)). Similarly, the water charge rules (s 92(3)) and the water market rules (s 97(3)) will apply to constitutional

corporations.29 Additionally, the obligations to provide water information and to permit access to premises are imposed on constitutional corporations under Parts 7 and 10 of the Act. The corporations power is also relevant to the water trigger found in ss 24D and 24E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), which has already been discussed in the context of the trade and commerce power: see [5.24] ff above. A constitutional corporation must seek ministerial approval if it wishes to take action involving coal seam gas development or large coal mining development and the action is likely to have a significant impact on a water resource.

External affairs power 5.43 The external affairs power in s 51(xxix) authorises the Commonwealth to enact legislation to give effect to any international legal obligations that the Australian Government has agreed to be bound by under international law. This usually occurs by ratifying an international treaty or convention. The width of this power was established in the Tasmanian Dam case (1983) 158 CLR 1, where a majority of the High Court accepted that any international treaty or convention to which Australia is a party, whatever its subject matter, constitutes an external affair. But the court still recognised two constraints on the power. 5.44 First, the treaty or convention must be a bona fide one; that is, not agreed to by the Commonwealth for the purpose of simply assuming constitutional power over that topic. Such a situation is unlikely ever to arise. 5.45 Second, and more significantly, the Commonwealth legislation must be ‘a faithful pursuit’ of the purpose of the convention. In other words, by ratifying a convention, the Commonwealth is not free to legislate regardless of its terms. The enacting statute must give effect to the convention in such a manner as to be reasonably appropriate and adapted to the

achievement of the convention obligations. There is some leeway here, more where the convention leaves, as often occurs, a substantial discretion to the state parties as to how they are to give effect to the convention obligations. It is even possible for the Commonwealth to give partial effect to these obligations provided this does not distort the effect achieved so as to be inconsistent with the convention: Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 146. 5.46 Presently, there are no principal international treaties in relation to water resources. While the Water Act 2007 (Cth) relies on eight international agreements,30 none are specifically concerned with water resources management and conservation. Similarly, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) has various provisions reliant on international treaties that may operate with incidental effect on the management of water resources. For example, the requirements under [page 111] Chapter 2, Part 3, for environmental approvals in respect of world heritage and wetlands of international importance rely, respectively, on the World Heritage Convention and the Ramsar Convention on Wetlands of International Importance.

Defence 5.47 Constitutionally, the defence power in s 51(vi) is elastic in nature, since it expands and contracts according to the level of threat against Australia. If Australia declares war, the power is at its widest, as it was during both World Wars, empowering the Commonwealth Parliament to delegate to the Governor-General authority to regulate every aspect of life in Australia so far as this was needed to defend the country. At a time of peace or relative

peace, the defence power contracts considerably. Any Commonwealth law which relies on the defence power at that time needs to have a clear connection with the purpose of defending Australia from both external and internal threats: Thomas v Mowbray (2007) 233 CLR 307. It is clear that this purposive test would not support, at a time of relative peace, general Commonwealth regulation of Australia’s water resources on environmental sustainability grounds. It may support, however, regulation to the extent that it protects water resources necessary for the security of Australia. Commonwealth legislation to facilitate the Snowy River Scheme was enacted on that basis in 1949.31

Implied nationhood power 5.48 The High Court has derived from the national status of the Commonwealth Government an implied executive power in s 61 which extends to matters over which it is appropriate and adapted for a national government to have responsibility. This executive power also becomes a legislative power when combined with the express incidental power in s 51(xxxix). A classic statement of the implied power was given by Mason J in Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 at 397: [I]n my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.32

5.49 Both the source and boundaries of the implied nationhood power are far from clear.33 The High Court has indicated that the implied nationhood power should not undermine the distribution of powers between the Commonwealth and the states.34 The [page 112]

power may, therefore, not extend to traditional areas of state responsibility, but against this it should be noted that it is also not confined by the Commonwealth’s legislative heads of power. Case law illustrates the range of issues that may fall within the implied nationhood power. In Davis v Commonwealth (1988) 166 CLR 79, legislation providing for the commemoration of the Bicentenary of British settlement of New South Wales was found to fall within the power as a matter peculiarly within the province of the Commonwealth. Likewise, in Pape v Commissioner of Taxation (2009) 238 CLR 1, the High Court upheld legislation providing for means-tested bonus payments to taxpayers as part of a ‘fiscal stimulus package’ implemented in response to the Global Financial Crisis. French CJ, at 8, held that such expenditure was ‘on a scale and within a time-frame peculiarly within the capacity of the national government’. 5.50 It is possible to distinguish between the nationhood power in the field of expenditure and the nationhood power in the field of regulatory coercive law. The High Court has indicated that the scope of the power may be broad with respect to the former but narrow with respect to the latter.35 Thus in the Tasmanian Dam case coercive aspects of the World Heritage Properties Conservation Act 1983 (Cth) were found not to fall within the scope of the implied nationhood power. In Davis, although the implied nationhood power permitted the Commonwealth to legislate with respect to the Bicentenary of British settlement of New South Wales, a proportionality test was applied in finding that sections of the legislation seeking to restrict the use of certain words and symbols were invalid. 5.51 The relevance of the implied nationhood power to water resources management is open to debate. On the one hand, the above authority suggests that the Commonwealth should not rely too heavily on the implied nationhood power to undertake national regulatory schemes, particularly where these override traditional areas of state responsibility. On the other hand, it is

arguable that the need to manage water basins and river systems spread across several states has the potential to attract the support of the implied power. In Pape, Gummow, Crennan and Bell JJ at 233 also held that the implied nationhood power may be activated by ‘natural disasters’, which would presumably encompass circumstances such as drought. The Commonwealth has sought to tap the potential of the implied nationhood power in the Water Act 2007 (Cth), the constitutional basis of which relies on ‘any implied legislative powers of the Commonwealth’ (s 9(b)), with specific reliance on the ‘implied power of the Parliament to make laws with respect to nationhood’ in s 119(3) for the imposition of obligations on any person specified in the regulations to supply prescribed information to the Commonwealth Bureau of Meteorology under Part 7 of the Act: see chapter 15 at [15.12] ff.

Financial powers 5.52 The Commonwealth has the power to tax anything under its taxation power in s 51(ii) provided it does not discriminate between the states (or parts thereof).36 Pursuant [page 113] to this power, the Commonwealth has the capacity to regulate indirectly a whole range of activities not otherwise within the scope of its power. Hence, the consumption of water by individual and corporate users could be subjected to a Commonwealth tax. Unlike the states and territories, the Commonwealth can impose an excise on goods which may include water. 5.53 The Commonwealth also has a capacity to spend money in ways that may influence water management. The Commonwealth is empowered by s 96 of the Constitution to grant financial assistance to the states on such conditions as it thinks fit. For example, the Natural Resources Management (Financial

Assistance) Act 1992 (Cth) provides a statutory framework for the Commonwealth to administer funds provided in this way. Section 5 of the Act provides that the Commonwealth may make agreements with the states to provide financial assistance for projects specified in the agreement or to be approved by the relevant Commonwealth and state ministers. The Commonwealth also has the capacity through its appropriations power in s 81 to make grants for Commonwealth purposes to any person or entity and to manage that grant by contract. In recent years, the Commonwealth’s capacity under both these powers to spend money and enter into contracts has been fundamentally reshaped by a series of cases. We address first the exercise of the appropriations power. 5.54 Previously, it was assumed that the Commonwealth executive had common law capacities to spend money and enter into contracts that were analogous to those of a natural person and so, effectively, unlimited. Alternatively, it was thought that the contours of these common law capacities followed the breadth of legislative powers in ss 51, 52 and 122 of the Constitution. It was also believed that no further statutory authority was needed for the expenditure of money beyond an Appropriation Act passed under s 81 of the Constitution. 5.55 The latter assumption was displaced in Pape, where the High Court unanimously found that an Appropriation Act did not confer power to spend appropriated money. The power of expenditure needed to be located in heads of power found elsewhere in the Constitution, for example, s 51, s 52 or s 122. In Williams v Commonwealth [No 1] (2012) 248 CLR 156, a majority of the High Court also rejected the contention that the Commonwealth executive had unlimited power to spend money as well as the narrower position that the executive could spend money within the subject matter of federal legislative power without statutory authorisation. The result of Williams [No 1] is that Commonwealth executive power to enter into contracts or

spend public money is now mostly limited to that for which authority has been conferred by statute. The only exceptions are those relating to other aspects of executive power, such as the implied nationhood power, the power to spend money in the ordinary annual services of government37 and the prerogative powers of the Crown at common law.38 [page 114] 5.56 The immediate response of the Commonwealth Parliament to Williams [No 1] was to insert s 32B into the Financial Management and Accountability Act 1997 (Cth), which delegated to the Commonwealth executive the authority to ‘make, vary or administer’ an arrangement or grant specified in the regulations.39 A new Sch 1AA to the Financial Management and Accountability Regulations 1997 (Cth) listed programs in relation to which the Commonwealth now purported to have authority to spend.40 In Williams v Commonwealth [No 2] (2014) 252 CLR 416 the High Court held that the Commonwealth executive could ‘make, vary or administer’ arrangements or grants under s 32B only where it was within the power of Parliament to do so. In effect, therefore, the issue is whether the particular spending program can be supported by a head of Commonwealth power or an aspect of executive power. 5.57 The question is where this leaves Commonwealth spending and contracting in the area of water resources management. Schedule 1AA lists a number of spending programs relevant to water resources management that are administered by the Department of Sustainability, Environment, Water, Population and Communities.41 Some of these programs — eg Commonwealth Contribution under the Murray-Darling Basin Agreement42 — are valid if the Commonwealth has legislative authority with respect to the Murray-Darling Basin, as it claims

under the Water Act 2007 (Cth). This issue is returned to below at [5.72]–[5.78]. Other spending programs — eg National Urban Water and Desalination Plan43 — may be constitutionally suspect if they cannot be brought within a head of power or an aspect of executive power. The same would be true for spending programs pursuant to funding agreements between the Commonwealth and other persons under the Natural Resources Management (Financial Assistance) Act s 6. The fate of such spending programs may depend upon litigants having the standing and inclination to challenge them on a case-by-case basis.44 If such challenges are successful, the Commonwealth could seek to maintain spending via conditional grants to the states under s 96. Indeed, a key rationale for the Williams [No 1] decision was a concern that s 96 should not be bypassed by direct Commonwealth executive spending. Section 96 provides that ‘the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit’. This would potentially allow the Commonwealth considerable control over environmental policy in areas beyond the scope of its legislative and spending powers, albeit subject to the consent of the state concerned.45 [page 115] 5.58 The repercussions of the Williams decisions may also be felt in the area of intergovernmental agreements. An example of such an agreement is the Intergovernmental Agreement on Implementing Water Reform in the Murray Darling Basin, entered into by the Commonwealth and the Murray-Darling Basin state governments in June 2013.46 This agreement builds on the 2008 Agreement on Murray-Darling Basin Reform and supports the objectives of the Murray-Darling Basin Plan, which was adopted by the Commonwealth in 2012 under the Water Act 2007 (Cth) s 44.

5.59 Intergovernmental agreements such as these are understood as exercises of executive power: R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 per Mason J at 560. This is regarded as arising from either the nationhood aspect of executive power or by analogy to the capacity of the executive to enter into contracts. However, the scope of the nationhood power is unclear and may provide limited authority in the area of water resources management: see [5.48]–[5.51] above. As far as the analogy to executive contracts is concerned, the effect of the Williams decisions may be that such a capacity no longer exists in the absence of express legislative authority. French CJ in Williams [No 1] took care to state, at [4], that the case did ‘not involve any conclusion about the availability of constitutional mechanisms, including … intergovernmental agreements supported by legislation …’. Nevertheless, the reasoning in the Williams cases ‘opens the door for the contention that specific legislative authority is required before the Commonwealth executive is empowered to enter into most types of intergovernmental agreements’, at least where such agreements have some regulatory effect, including authorising the expenditure of public money, and are not merely political bargains.47 It also means that the Commonwealth may seek to make greater use of s 96 grants to the states.

Acquisition of property on just terms 5.60 Section 51(xxxi) of the Constitution provides that the Commonwealth Parliament may make laws for ‘the acquisition of property on just terms from any state or person in respect of which the Parliament has the power to make laws’. This provision has a dual function: it both confers and limits the power of the Commonwealth to acquire property compulsorily. If the Commonwealth were to exercise the power directly to acquire, for example, a water access right, the application of the provision would raise important questions of what is ‘property’, what amounts to an ‘acquisition’ of property and what satisfies ‘just

terms’? However, the provision also potentially limits the disbursement of Commonwealth funds under the constitutional powers discussed in the previous section where the Commonwealth may act indirectly to influence water resources management. 5.61 This latter aspect of s 51(xxxi) is evident in ICM Agriculture v Commonwealth (2009) 240 CLR 140. The Commonwealth and New South Wales agreed the Achieving Sustainable [page 116] Groundwater Entitlements program,48 whereby the Commonwealth undertook to pay moneys to NSW on condition that the state use its water law reforms to reduce over-allocated groundwater entitlements. The agreement required New South Wales to convert bore licences into aquifer access licences, which had the effect of reducing the plaintiffs’ water entitlements. New South Wales offered the plaintiffs ‘structural adjustment payments’, although it was conceded that these would not amount to ‘just terms’ within the meaning of s 51(xxxi). The plaintiffs contended that s 51(xxxi) had application because Commonwealth funding had been provided via s 96. They argued that s 96 was subject to s 51(xxxi) and did not authorise a Commonwealth grant to be made on condition that a state acquire property other than on just terms. Four judges followed the earlier decision in PJ Magennis v Commonwealth (1949) 80 CLR 382 in agreeing that s 96 was subject to s 51(xxxi). French CJ, Gummow and Crennan JJ (with Heydon J agreeing) held as follows at [46]: ‘the legislative power of the Commonwealth conferred by ss 96 and 51(xxxvi) does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms.’ Hayne, Kiefel and Bell JJ, at [107], did not regard it as necessary to

consider the issue. The result is that the Commonwealth cannot circumvent s 51(xxxi) by inducing a state to acquire property on its behalf via s 96.49 5.62 Nevertheless, a majority of the High Court held that there was no acquisition of property. A number of considerations were taken into account in reaching this conclusion. First, at common law, water, like light and air, is generally regarded as common property. To the extent that the plaintiffs had common law rights to extract groundwater, these had been extinguished by the Water Act 1912 (NSW). Second, the bore licences had an ‘insubstantial’ character given their susceptibility to variation. They were, in the view of French CJ, Gummow and Crennan JJ, at [80], ‘no more than interests defeasible by operation of the legislation that called them into existence’. Third, there had been no ‘acquisition’ of property. For this to occur, there needed to be some benefit or advantage relating to the ownership or use of the property. However, the groundwater was a natural resource and the state had always retained the power to limit the volume of water to be taken from that resource. 5.63 The reasoning in ICM was applied in Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242, where the High Court again upheld the Commonwealth’s funding of the structural adjustment payments for entitlement reductions under NSW law. ICM was also applied by the Federal Court in Lee v Commonwealth (2014) 220 FCR 300. The plaintiffs argued that the Murray-Darling Basin Plan developed under the Water Act 2007 (Cth) had the effect of reducing the amount of water that they could carry over from one year to the next pursuant to state [page 117] legislation and that this amounted to an acquisition of property otherwise than on just terms. In the plaintiffs’ view, s 254 of the

Act applied to provide that the Commonwealth must pay ‘reasonable’ compensation in such circumstances. North J, at [206], held that the loss of carry-over entitlements had conferred no measurable or identifiable advantage on the Commonwealth and that there had not been an acquisition of property. On appeal, this finding was upheld by the Full Court: Lee v Commonwealth [2014] FCAFC 174 at [177]. 5.64 While some commentators suggest that this line of decisions gives governments greater flexibility to reduce water access rights without paying just terms compensation,50 this overlooks that much of the reasoning of the High Court majority in ICM on the question of ‘acquisition’ was founded on the nature of the plaintiffs’ entitlements under the Water Act 1912 (NSW) bore licences. The inherent susceptibility of the bore licences to executive government variation under the pre-NWI legislation was an intrinsic part of the majority reasoning. The NWI legislative reforms were intended to give greater long-term security with planning procedures to vary the share entitlements, especially when making future reductions to consumptive use entitlements for environmental policy reasons. Under the reforms, the NWI share entitlements will generally have a greater rigidity during the life of a statutory plan and may, for the purposes of s 51(xxxi), confer rights with a more rigid character that will be less susceptible of amendment during the terms of the plan.51

Commonwealth places 5.65 Whenever the Commonwealth acquires a place for public purposes, it thereby attracts, pursuant to s 52(ii) of the Constitution, exclusive power to make laws for that place. To avoid any vacuum of regulation, the Commonwealth Places (Application of Laws) Act 1970 applies state laws to that place unless they are inconsistent with Commonwealth law.

Commonwealth capacity to override state authority

5.66 For the Melbourne Corporation principle to be invoked successfully, the states would need to establish that the impugned legislation was directed at states and imposed ‘some special disability or burden on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments’: Fortescue Metals Group Ltd v Commonwealth (2013) 300 ALR 26 at [130] per Hayne, Bell and Keane JJ. This ground of challenge is most unlikely to succeed because the states’ power to regulate their water resources will not be viewed as an essential constitutional function or capacity. A similar argument failed in Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373 in relation to the recognition by the Commonwealth of native title. It was argued by Western Australia that the impact of this native title regime impermissibly interfered with that state’s capacity to regulate its Crown land. The High [page 118] Court rejected this argument on the basis that the state’s essential capacity to govern was not undermined. This authority was recently applied in the area of water resources management in Lee v Commonwealth (2014) 220 FCR 300. North J held at [186] that the provisions of the Water Act 2007 (Cth) that were directed to setting and enforcing limits on the amount of water that could be taken from the Murray-Darling Basin did not impair the capacity of the Basin states to function as such.

The legislative powers of the territories 5.67 The Commonwealth has granted a form of self-government to both the Northern Territory and the Australian Capital Territory. Their respective Legislative Assemblies are vested with a general legislative power ‘to make laws for the peace, order and

good government of the Territory’.52 This power resembles the general legislative power of the states. Each territory legislature is subject to restrictions from the Commonwealth’s Self-Government Act, as well as from the Constitution. Specific statutory restrictions of the former kind include: the requirement to pay just terms for the compulsory acquisition of property; a freedom of trade, commerce and intercourse into and from the territory; and the incapacity to enact euthanasia laws. Restrictions from the Constitution include: s 90 (no excise duties); s 118 (full faith and credit to state laws etc); and the implied freedom of political communication.

Cooperative federalism An overview 5.68 Though the contemporary interpretation of the Commonwealth’s powers is broader than the early years of federation, the potential restriction on Commonwealth power under s 100 and the practicalities of water regulation founded on state regimes of water entitlements combine to encourage the Commonwealth to pursue federal cooperation rather than brute force in venturing into schemes of water resource regulation. 5.69 There are various mechanisms of cooperative federalism. The simplest mechanism relying on the independent state and territory legislation to implement national policy agreement has been applied to the implementation of most of the national water law reforms implementing the 1994 CoAG Water Reform Framework Agreement (see chapter 3 at [3.8]–[3.9]) and the 2004 Intergovernmental Agreement on a National

[page 119] Water Initiative (see chapter 3 at [3.10] ff). This mechanism may be supplemented by the Commonwealth exercising its financial powers to induce implementation. Another example of such action is the management of the Great Artesian Basin (‘GAB’), which underlies about 22 per cent of mainland Australia, extending from central and western Queensland to parts of the Northern Territory, South Australia and New South Wales (see chapter 1). The need to restore the reserves of the GAB led to a cooperative management structure and strategic management plan between the Commonwealth, New South Wales, Queensland and South Australia.53 However, the decisions in Williams [No 1] and Williams [No 2] have created uncertainty regarding the capacity of the Commonwealth to enter into such agreements. The necessary authority has been regarded as arising either under the nationhood aspect of executive power or, by analogy, to the capacity of the executive to enter into contracts. However, the scope of the nationhood power is unclear and may provide limited authority in the area of water resources management: see above at [5.48] ff. The Commonwealth may also no longer have power to enter into intergovernmental agreements with financial or regulatory effect in the absence of legislative authority: see above at [5.58]–[5.59]. 5.70 A second method involves the Commonwealth and the states agreeing to enact parallel or complementary statutory schemes (the template model). Until 2008, this was the technique applied to the arrangements for the MDB Agreement, most extensively in the implementation of the MDB Agreement 1992. The hallmarks of this arrangement were a ministerial council and supporting advisory commission composed of equal representation from each participating government, with decisionmaking mostly dependent on consensus and the execution of

policy and management decisions implementation: see chapter 7 at [7.8] ff.

dependent

on

state

5.71 A third method involves one or more states referring their legislative power to the Commonwealth to enable the latter to enact national legislation pursuant to s 51(xxxvii) of the Constitution. This is called the reference power. A state power is usually referred to the Commonwealth for a specified number of years, and may be revoked by the referring state.54 Prominent instances of the Commonwealth enacting national legislation pursuant to the s 51(xxxvii) state referral of power include the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth). We can now add to this list the Water Act 2007 (Cth), as amended in 2008, which relies in part on the use of the referral power. The hallmarks of this arrangement are national legislation as the operative law and Commonwealth executive control of the key administrative agencies — in the case of the Water Act, the MDB Authority (‘MDBA’): see chapter 7 at [7.19]–[7.20]. [page 120]

Water Act 2007 (Cth) — An analysis of the exercise of Commonwealth power 5.72 The preamble to the Water Act 2007 (Cth) states: An Act to make provision for the management of the water resources of the MurrayDarling Basin, and to make provision for other matters of national interest in relation to water and water information, and for related purposes.

These objectives are more specifically detailed in the objects of the Act in s 3(a)–(g), which are entirely concerned with the MDB. The first two key objects reflect the limitation in Commonwealth power to manage Australia’s water resources. Paragraph (a) refers to enabling ‘the Commonwealth, in

conjunction with the Basin States, to manage the Basin water resources in the national interest’. This contemplates cooperation between the Commonwealth and the states, in particular, the reference of power by the states to the Commonwealth, authorised under s 51(xxxvii) of the Constitution and provided for in s 9A of the Act. Paragraph (b) refers to giving effect to ‘relevant international agreements’, which the Commonwealth can implement pursuant to its external affairs power in s 51(xxix). These agreements are defined in s 4 to include eight international conventions and agreements.55 The object in s 3(h), which is not confined to the MDB, is ‘to provide for the collection, collation, analysis and dissemination of information about: (i) Australia’s water resources; and (ii) the use and management of water in Australia.’ This objective is addressed primarily in Part 7. Section 119 purports to cite the constitutional basis for this Part (see further below). 5.73 Section 9(a) of the Act purports to cite the constitutional basis for the Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A) as relying upon the following legislative powers: interstate and overseas trade and commerce (s 51(i)); postal, telegraphic, telephonic and other like services (s 51(v)); astronomical and meteorological observations (s 51(viii)); census and statistics (s 51(xi)); [page 121] weights and measures (s 51(xv)); foreign, trading or financial corporations (s 51(xx)); external affairs (s 51(xxix)); matters incidental to the execution of any power vested in the Commonwealth Parliament or Government (s 51(xxxix)); and

the territories power (s 122). Additionally, the Act (other than the Parts cited above) relies on ‘any implied legislative powers of the Commonwealth’ (s 9(b)). Presumably this refers to the implied nationhood power. Section 9A cites the constitutional basis of Parts 1A, 2A, 4, 4A, 10A and 11A to be the reference power in s 51(xxxvii) in addition to any other powers of the Commonwealth under s 51 of the Constitution. The significance of the referral of the powers can be seen in the effect of these Parts of the Act, which are alluded to in the s 18B(9) definition of ‘referred subject matters’: the powers and functions of the Commonwealth agencies conferred under the new MDB Agreement (Part 1A); the management of the Basin water resources to meet critical human water needs (Part 2A); water charging in relation to Basin water resources and the transformation of irrigation rights in irrigation districts into water access entitlements held directly by irrigators (Part 4); and the transfer of assets, rights and liabilities of the Commission to the new MDBA (Part 10A). 5.74 The Act purports to achieve its principal object of managing the MDB by imposing general obligations to comply with the Basin Plan and other forms of regulation. If left unqualified, these general obligations would exceed Commonwealth legislative power. Accordingly, the Act adopts the technique of confining these obligations within the scope of the powers identified in s 9. For instance, s 35(1) requires compliance with the Basin Plan on the part of the Basin Officials Committee, an agency of a Basin State, an operating authority, an infrastructure operator and the holder of a water access right. Then ss 36 and 37 cut back that obligation under s 35 to bring it within the scope of specific Commonwealth powers. Each subsection of s 36 confines the obligation of s 35 within a different head of Commonwealth power, to the extent to which that obligation:

in subs (1) gives effect to a relevant international agreement (that is, the external affairs power s 51(xxix)); in subs (2) is imposed on a constitutional corporation, or conduct that affects the activities of a constitutional corporation (that is, the corporations power s 51(xx)); in subs (3) is imposed on trade or commerce overseas, interstate or between a state and a territory (that is, the trade and commerce power s 51(i) and the territories power s 122); and in subs (4) is imposed on conduct within a territory (that is, the territories power s 122). [page 122] Section 37 adopts the same specification of powers technique in relation to those obligations of the Basin Plan concerned with the trading or transfer of a tradable water right, relying in addition on the Commonwealth’s powers with respect to s 51(v) where the trading or transfer occurs using postal, telegraphic, telephonic or other like services (subs (5)). The same technique is also adopted in relation to the obligation to comply with the requirements of a water resource plan for an area under s 59 in Div 2 of Part 2.56 5.75 A similar technique was also initially adopted in the 2007 enactment of Part 4, especially in ss 92 and 94 (in relation to the imposition of the water charge rules in Div 1 of Part 4), and ss 97 and 99 (in relation to the imposition of the water market rules under Div 2 of Part 4). For instance, the former rules applied under the 2007 version of s 94, inter alia, if a water charge is imposed: by or on a constitutional corporation (subs (2)(a) and (b)); or in the course of interstate or territory trade and commerce (subs (2)(c)). However, this technique was abandoned in the 2008 amendments in favour of relying only on the referral power for the application of these rules in the states. Thus, ss 92(1) and 97(1)

were amended in 2008 to restrict the minister’s power to making of rules ‘applying in Basin States that are referring states and in the Australian Capital Territory’. This, however, is qualified by s 9A(2), which provides that the operation of Part 4 ‘in a Basin State … that is not a referring state is based on the legislative powers of the Commonwealth Parliament under s 51 (other than paragraph 51(xxxvii)’. The point of this qualification is that the Australian Competition and Consumer Commission has functions under Part 4, for example, the responsibility for monitoring ‘regulated water charges’ generally, that extend beyond the administration and enforcement of the water charge and water market rules. 5.76 A more audacious version of the specification of powers technique occurs in s 119 in relation to Part 7 and in s 216 in relation to Part 10. Part 7 empowers the Commonwealth Bureau of Meteorology, inter alia, to collect and manage Australia’s water information, to compile and maintain the National Water Account, and to issue National Water Information Standards. Integral to those purposes, s 126 imposes an obligation on any person specified in the regulations to provide the water information sought within the time prescribed, and s 127 empowers the Director of Meteorology to require any person to give specified water information to the Bureau. Failure to comply in each case constitutes an offence. 5.77 Does the Commonwealth have the requisite legislative power to impose these obligations? It probably does, as the imposition of these obligations is incidental to the exercise of the legislative powers relied on by s 119(1) with respect to census and statistics (s 51(xi)), meteorological observations (s 51(viii)) and weights and measures (s 51(xv)). But, in case these obligations go beyond the scope of these powers, Part 7 also relies on a safe bet — the corporations power — in so far as these obligations are imposed on constitutional corporations (s 119(2)). Most adventurous is the reliance on the implied nationhood power (s 119(3)).

[page 123] 5.78 The powers in s 51(viii), (xi) and (xv) are also relied on by s 216(1) for Part 10, which vests ‘special powers’ in the MDBA to enter premises for the performance of the Authority’s functions in connection with the management of Basin water resources; that is, essentially, to collect information and conduct tests. Here again, whether those three s 51 powers support these special powers is not clear. No doubt, for this reason, s 216(1) also relies on the external affairs power (s 51(xxix)), the trade and commerce power (s 51(i)) and the communications power (s 51(v)), with further reliance on the corporations power (s 51(xx)), the territories power (s 122) and the reference power — in so far as the information is held by a constitutional corporation, or relates to premises owned or occupied by a constitutional corporation or located within a territory or a referring state.

Conclusion 5.79 As noted at the commencement of this chapter, it is for constitutional reasons that state law remains the foundation for water resources entitlement regimes in Australia. These reasons are not just the historical legacy of constitutional arrangements. Despite the broadening interpretation of the Commonwealth’s specific legislative powers, the states alone have plenary legislative power to make law about the management of natural resources. Alongside their legislative powers, the states have inherited the colonial sovereign title to terrestrial lands and the proprietary ownership of Crown lands. The states (except South Australia) used their plenary legislative powers to claim public ‘ownership’ of terrestrial water resources to reinforce the foundations of the state authorisation of water access rights. The Commonwealth would need to pay just terms compensation if it were to take these titles from the states.

The Commonwealth’s constitutional powers, however, give it a significant capacity to define the economic and environmental limits within which the states can administer the entitlement regimes. The Commonwealth’s historically preferred avenue of asserting financial influence over the states to influence water resources management has recently been narrowed by judicial decisions that limit the influence to subject matters otherwise within the Commonwealth’s constitutional powers. The Commonwealth asserted these powers in the initial enactment of the Water Act 2007 (Cth), especially in the MDB. That initial enactment had limited and uncertain effect for the establishment of Commonwealth executive power in the MDBA and lacked comprehensive regulation of the Basin water market, which requires some adjustment to entitlement regimes in irrigation districts. The 2008 amendments of the Water Act have supplemented Commonwealth power in these respects, and added provisions for the management of river flows to meet ‘critical human needs’. However, the Commonwealth needed the states to refer their powers to provide the constitutional support for enactment of the key 2008 amendments. Thus, the Commonwealth needed the states’ constitutional support to establish its full legal capacity to define the environmental and economic limits for the management of Australia’s most significant water resource. These constitutional realities are reflected in the institutional framework for the management of water resources, where again the states predominate, though subject to a growing Commonwealth presence in the management of the MDB.

1.

The following explanation is derived mainly from the judgment of Gummow J in Wik Peoples v Queensland (1996) 187 CLR 1 at 171–177.

2.

The primary meaning of ‘waste’ lands was that the lands were uncultivated, which was synonymous with their not being settled by colonial emigrants pursuant to a Crown grant of legal land title: see Wik Peoples v Queensland (1996) 187 CLR 1 at 172 per Gummow J.

3.

‘Responsible’ self-government simply refers to the form of government by which the executive government is accountable for the exercise of its powers to the colonial legislature.

4.

Victorian Constitution Statute 1855 (Imp) cl II. Similar provisions appeared in Imperial legislation granting self-government to New South Wales, Queensland and Western Australia. In terms of s 106 of the Commonwealth Constitution, the ‘Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State’.

5.

6.

7.

8.

9.

10.

11. 12.

13. 14. 15. 16. 17.

See, for example, the legislation at issue in cases like Midland Railway Co of WA Ltd v Western Australia [1956] 3 All ER 272 and Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399. There were some early disputes about the boundaries between New South Wales, Victoria and South Australia, especially involving the Murray River: see S Clark, ‘The River Murray Question: Part 1 — Colonial Days’ (1971) 8 MULR 11. See Coastal Waters (State Titles) Act 1980 (Cth) and Coastal Waters (State Powers) 1980 (Cth) and its complementary state legislation for each jurisdiction, which bore the name ‘Constitutional Powers’; for example, the Constitutional Powers (Coastal Waters) Act 1980 (Vic). The legislation is enacted by the Commonwealth in exercise of s 51(xxxviii) of the Constitution. Constitution Act 1902 (NSW) s 5; Constitution of Queensland 2001 s 8 with Constitution Act 1867 (Qld) s 2; Constitution Act 1934 (SA) s 5 with Australian Constitutions Act 1850 (Imp) s 14; Tasmania by Australian Constitutions Act 1850 (Imp) s 14; Constitution Act 1975 (Vic) s 16; Constitution Act 1889 (WA) s 2. Cf Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575. See also G Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Cambridge; Port Melbourne, 2006, pp 356–376. See, for example, Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337; Carney, 2006, p 210 ff. See also A Gardner, ‘Musings on Marquet: The distribution of electoral districts and natural resources rent’ in Upholding The Australian Constitution: Proceedings of the Sixteenth Conference of The Samuel Griffith Society, 2004, vol 16, ch 9, pp 189–218. These amendments were introduced by the Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth). The water trading rules are found in the Basin Plan Chapter 12 and discussed in chapter 25 at [25.129]. The water charge rules are discussed in chapter 21 at [21.30]–[21.31] and in chapter 25 at [25.125]. The water market rules are discussed in chapter 25 at [25.136] ff. Water Act 2007 (Cth) ss 9 and 9A; s 9A refers to the Commonwealth Parliament’s powers under s 51 both directly and by referral from the states under s 51(xxxvii). Water Act 2007 (Cth) s 10 declares the factual basis for the Basin water charge,

water trading and water market rules. 18. 19. 20.

21.

Commonwealth of Australia, Final Report of the Constitutional Commission, 1988, Vol 2 at [12.16]. See generally J Sax et al, Legal Control of Water Resources, 3rd edn, West Group, St Paul, Minnesota, 2000. It is unclear whether ‘resident’ in s 100 includes corporations. It does not in s 75(iv): see Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 299, 321, 334–335; Cox v Journeaux (1934) 52 CLR 282 at 285; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 24, 27, 34. Section 99 provides: ‘The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.’

22. 23.

See the list given in Morgan v Commonwealth (1947) 74 CLR 421 at 453. See Mason J at 155, per Murphy J at 182, per Brennan J at 248–9. Deane J at 250–1 left the issue open. The minority justices (Gibbs CJ, Wilson and Dawson JJ) did not consider the issue.

24.

A Gardner, ‘Lee and Gropler v Commonwealth and Murray-Darling Basin Authority — reflection on a conception of Australian water access rights’ (2013) 28(3) Australian Environment Review 517. J Williams and A Webster, ‘Section 100 and State water rights’ (2010) 21 PLR 267 at 274. See also A Webster and J Williams, ‘Can the High Court save the Murray River?’ (2012) 29 EPLJ 281 at 291–294.

25.

26. 27.

Commonwealth of Australia, Final Report of the Constitutional Commission, 1988, Vol 2, pp 847–850. Commonwealth of Australia, Final Report of the Constitutional Commission, 1988, Vol 2, pp 847–850.

28. 29.

Ibid, p 24. Water Act 2007 (Cth) ss 94(2)(b) and 99(2)(a) as originally enacted have been replaced by s 9A, which still relies on the corporations power though less explicitly.

30.

See definition of ‘relevant international agreement’ in Water Act 2007 (Cth) s 4 and the application of these agreements to support the binding legal effect of the Basin Plan under s 36. See Preamble to Snowy Mountains Hydro-Electric Power Act 1949 (Cth), also enacted in reliance on the territories power and the seat of government power for the provision of electricity to the Australian Capital Territory.

31.

32. 33.

See also Barwick CJ at 362, Gibbs J at 375 and Jacobs J at 412. A Twomey, ‘Pushing the Boundaries of Executive Power — Pape, the Prerogative and Nationhood Powers’ (2010) 34(1) MULR 313.

34. 35.

Pape v Commissioner of Taxation (2009) 238 CLR 1 at 60 per French CJ. Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 204.

36.

Nor give a preference under s 99. Both these restrictions are to the same effect in the taxation field. New South Wales v Bardolph (1934) 52 CLR 455.

37.

38. 39. 40.

Williams v Commonwealth (2012) 248 CLR 156 per French CJ at [4] and [83] and Crennan J at [539]. Section 32B is now found in the Financial Framework (Supplementary Powers) Act 1997 (Cth).

41.

This schedule is now found in the Financial Framework (Supplementary Powers) Regulations 1997 (Cth). See generally 425.001–425.019 of Sch 1AA.

42. 43.

425.012. 425.010.

44.

S Chordia, A Lynch and G Williams, ‘Commonwealth Executive Power and Spending After Williams [No 2]’ (2015) 39 MULR 306 at 329. S Pillai and G Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32(5) EPLJ 395 at 407–408.

45. 46.

47. 48.

49.

Council of Australian Governments, Intergovernmental Agreement on Implementing Water Reform in the Murray Darling Basin (June 2013): . S Chordia, A Lynch and G Williams, ‘Williams v Commonwealth: Commonwealth Executive Power and Australian Federalism’ (2013) 37(1) MULR 189 at 223–230. New South Wales Government, Department of Primary Industries, Water: and follow links to ‘Water management’, ‘Water sharing plans’, ‘Plans commenced’ and ‘Achieving Sustainable Groundwater Entitlements Program’. P Kildea and G Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ (2010) 32 Syd LR 595 at 610. Similar issues were addressed in the context of New South Wales regulation of land clearing in Spencer v Commonwealth [2015] FCA 754 at [406]–[473].

50. 51.

Ibid at 612–613. A Gardner, ‘Water Reform and the Federal System’ in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, Federation Press, 2012, pp 282–283.

52.

ACT (Self-Government) Act 1988 (Cth) s 22(1); Northern Territory (SelfGovernment) Act (Cth) s 6. See chapter 7 at [7.37] and the website of the GAB Coordinating Committee, established in 2004: .

53. 54. 55.

See Carney, 2006, pp 14–17. Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (Ramsar Convention); Convention on Biological Diversity 1992 (Biodiversity Convention); United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 1994 (Desertification Convention); Convention on the Conservation of Migratory Species of Wild Animals 1979 (Bonn Convention); Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment 1986 (CAMBA); Agreement between the Government of Australia and

the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1981 (JAMBA); Agreement with the Government of the Republic of Korea on the Protection of Migratory Birds 2006 (ROKAMBA); and United Nations Framework Convention on Climate Change 1992 (Climate Change Convention). 56.

See ss 60 and 61 in relation to the obligation imposed by s 59.

[page 125]

6 THE ADMINISTRATIVE FRAMEWORK OF WATER RESOURCES MANAGEMENT 6.1 For most of the twentieth century, the regulatory management of water resources and the delivery of public water services were administered mainly by monopoly state government agencies. In some states, local government authorities had a significant role in the delivery of water services. This administrative framework has been greatly reformed since 1994 for the purposes of establishing the foundations for water markets, including an interstate water market in the Murray-Darling Basin (‘MDB’). There have been two significant features of this reform: the reform of state monopoly agencies, which, mostly, involved the separation of the former state monopoly agencies into regulatory agencies responsible for water resources management and corporatised government enterprises responsible for the delivery of water services, as well as the creation of new agencies responsible for regulation of service delivery; and the establishment of a Commonwealth presence in water resource management, especially through the operation of the National Water Commission (‘NWC’) in 2004–14, the establishment of MDB Authority (‘MDBA’) and the Commonwealth Environmental Water Holder in 2008 and the

engagement of other Commonwealth agencies in water resource management issues. A number of the state institutional reforms have also been revised in recent years. This chapter explains the contemporary state and Commonwealth administrative frameworks for water resources management and notes the related agencies responsible for regulating and delivering water services. It also notes the institutional entities, such as community consultative bodies, that have been continued or established to facilitate the performance of the functions of regulatory agencies. A parallel reform, which is little explored here, is the devolution of management responsibility for irrigation areas from state government agencies to local cooperative bodies for the purposes of conferring greater financial responsibility upon irrigators for the installation and maintenance of irrigation infrastructure. The MDBA is a Commonwealth agency with responsibility for interstate management of water resources, so it is considered in more detail in chapter 7. [page 126] 6.2 There was important policy guidance on the institutional reforms. The 1994 CoAG Water Reform Framework Agreement contained a number of propositions about institutional reform,1 notably: the separation of water resource management and water services delivery and the regulatory frameworks for each; better integration of natural resources management, including arrangements to consult with representatives of local government and the wider community in individual catchments; a more commercial focus for service delivery organisations in

metropolitan areas, whether achieved by contracting out, corporatisation or privatisation of the organisations; and the devolution of irrigation area management from public or governmental entities to local bodies with greater organisational and financial responsibility, though subject to a regulatory framework. Our focus is on the first two of these principles and their impact on the regulation of water resources management.2 These principles are acknowledged in the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’),3 which gives greater attention to pricing water resource access and service delivery — including the independent regulatory oversight of water pricing. There was, of course, also considerable policy agreement required between the MDB jurisdictions for the Commonwealth’s establishment of the MDBA, the ultimate record of that policy agreement being the July 2008 MDB Reform Agreement.4 Our explanation and analysis here focuses on the eventual statutory arrangements. [page 127]

State and territory institutions Water resource management Regulatory agencies 6.3 At the state and territory level, the primary regulatory authority for water resource management is vested in a Minister responsible for the administration of the water resources legislation. For example, under the Water Management Act 2000 (NSW) the Minister may constitute water management areas, approve water management plans, determine water access licence applications, make ‘available water determinations’, and

determine applications for the transfer of or dealing in an access licence. A similar pattern prevails in each other jurisdiction except Victoria, which is discussed below, the Australian Capital Territory and the Northern Territory. In the Australian Capital Territory, the Environment Protection Authority (‘authority’) performs certain important advisory and regulatory functions. For example, the authority prepares environmental flow guidelines for the Minister’s approval and advises the Minister on the sustainable yield for a water management area.5 The authority also has the regulatory power to amend a water access entitlement,6 determine applications for the transfer of water access entitlements,7 and determine applications for licences to take water.8 The authority is constituted as a public servant appointed by the director-general of the relevant government department.9 The functions under the Canberra Water Supply (Googong Dam) Act 1974 (Cth) are performed by the Executive of the Australian Capital Territory. The Water Act 1992 (NT) confers certain key powers (such as water resources investigation and the grant of licence applications) on the ‘Controller of Water Resources’, who is appointed by the Minister under the Act. 6.4 Certain subsidiary functions may be performed by the chief executive officer of the relevant government department. For example, the Water Management Act 1999 (Tas) provides that it is the Secretary of the Department that gives public notice of a Minister’s determination that a plan is to be prepared, and then prepares the plan. By contrast, in South Australia, it is the regional Natural Resource Management Boards established by the Minister that perform similar subsidiary functions under the Natural Resources Management Act 2004 (SA). The constitution of these Boards is discussed below at [6.15]. 6.5 Also, each jurisdiction’s Act contains provisions that generally permit the Minister or the chief executive officer to

delegate a wide range of powers. For example, it is common for a Minister to delegate to a departmental officer the functions of determining water [page 128] licence applications. However, there will be limits, both implied and expressed, on the powers of delegation. For example, one would generally not interpret implied general powers of delegation under the ‘Carltona’ principle to permit departmental officers to exercise a power of approving a water allocation plan, which generally requires the Minister to form an opinion that is not routine, administrative or non-discretionary: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWCA 377. On the other hand, it is difficult to imply limits on express powers of delegation: Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 at [164]–[175]. The Natural Resources Management Act 2004 (SA) prohibits the Minister from delegating financial powers under the Act. 6.6 In addition to the office held by a Minister or chief executive officer, New South Wales10 and Western Australia11 have created ministerial corporate bodies as agencies of the Crown to hold proprietary titles and assets and perform commercial operations related to water resources management. The New South Wales body is the ‘Water Administration Ministerial Corporation’ (‘the corporation’) and its functions include: the construction, maintenance and operation of water management works and monitoring equipment; the conduct of research and technology development in relation to water management; and the acquisition of rights to water.12

The corporation may also enter into commercial operations and acquire land for the purposes of performing of its functions.13 It appears that the current scope of the corporation’s functions and powers is more limited than that provided under the pre-2000 legislation: see Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 per Gleeson CJ and Gummow J at 577 ff and Mason P in Water Administration Ministerial Corporation v Puntoriero (1997) 42 NSWLR 676 at 678 ff. The functions of capturing, storing, releasing and supplying water from publicly owned dams in New South Wales is now performed by Water NSW, a state-owned corporation which was established in 2014 to replace the State Water Corporation and the Sydney Water Catchment Authority.14 6.7 As mentioned above, Victoria departs from the general model of investing all the significant regulatory powers in the Minister. The Water Act 1989 confers important administrative functions on regional bodies called ‘authorities’. An ‘authority’ is defined to be either a water corporation or a catchment management authority.15 A water corporation is established by the Water Act, principally as a continuation of [page 129] a previous water authority, though the Minister may restructure, create and abolish a water authority.16 A water corporation is governed by a board of directors appointed by the Minister for Water and the Treasurer jointly.17 A water corporation is bound to have regard to sustainable management principles in performing its functions, but is also obliged to perform its functions ‘as efficiently as possible consistent with commercial practice’.18 The precise set of functions and powers varies for different water corporations, but essentially may be of either a regulatory and resource management nature or a service provision nature — for

example, supplying water for irrigation, domestic and stock purposes or providing sewerage and drainage. Although constituted as water corporations, it seems that these entities are mainly called authorities and perform a combination of regulatory or resource management functions, such as administering a water management plan, and water service functions, such as managing a water supply or sewerage district determined by the Minister.19 Some water corporations (such as Melbourne Water and Goulburn Murray Water) supply only bulk water supply or sewerage services, while others engage only in retail service supply.20 A catchment management authority is constituted under the Catchment and Land Protection Act 1994 (Vic) and given waterway management functions under the Water Act.21 A water corporation, such as Melbourne Water, may also be given waterway management functions.22 There may be certain efficiencies in Victoria retaining regional authorities with both regulatory and service provision functions, but this institutional model does not seem consistent with the CoAG water reform policy requiring the separation of these two functions.

Consultative and advisory bodies: state 6.8 Each jurisdiction provides for some form of consultation by the regulatory agencies with advisory bodies in the governance of water resources management, especially in respect of water planning. In the past (see the first edition of this book), all jurisdictions other than Queensland and the Australian Capital Territory provided for some form of state-level advisory bodies. This is no longer true. The NSW Act retains provision for expert advisory panels and committees, and for a ‘Water Innovation Council’.23 [page 130]

Victoria’s Water Act barely acknowledges the Victorian Catchment Management Council and retains provision for the Victorian Water Trust Advisory Council.24 These two examples are discussed below. South Australia has abolished its State Natural Resources Management Council25 and Western Australia has never appointed members to constitute the Water Resources Council that was legislated for in 2007.26 In contrast, Queensland introduced the Queensland Water Commission, an advisory and executive body,27 into the management the coal seam gas industry’s use of ground water.28 Those functions were transferred to the Office of Groundwater Impact Assessment when the Commission was abolished in 2012.29 There is a greater prevalence of regional-level bodies. The key issues relating to these bodies are their constitution and functions. 6.9 The New South Wales Act does not provide for a standing state-level council or committee; rather, it provides for the ad hoc establishment of expert advisory panels for the purposes of the Act.30 A panel is to be appointed by the Minister on the basis of expertise relevant to the matters to be referred to it, such as investigating and reporting on a State Water Management Outcomes Plan, a draft water management plan for a water management area (both the terms of reference to be set for the preparation of a plan and its draft provisions), and the effectiveness of a bulk access regime of a management plan for furthering the statutory water-sharing principles.31 Perhaps one reason that the NSW Act does not establish a standing state-level advisory body is because there was separately established a Natural Resources Commission (‘NRC’) in 2003. It performs advisory tasks in relation to a proposal to extend a management plan32 and is responsible for setting state-wide standards and targets for natural resources management.33 [page 131]

6.10 A similar state-level catchment management body exists in Victoria. The Catchment and Land Protection Act 1994 (Vic) establishes the Victorian Catchment Management Council (VCMC), which advises the government on the condition of land and water resources.34 The membership of the council should include a person or persons with experience and knowledge of water resources management, and the Act has as one of its objectives the ‘aim to ensure that the quality of the States … water resources … are maintained and enhanced’.35 The functions of the council include advising the Minister on the condition of water resources of the state and encouraging the cooperation of persons and bodies involved in the management of land and water resources in furthering the objectives of the Act.36 However, although the Water Act 1989 (Vic) makes a number of significant references to integrate the work of regional catchment management authorities into the administration of the Water Act,37 it does not confer any relevant function on the state’s Catchment Management Council. There appear to be two significant reasons for this. First, the Water Act does not establish any statutory state-wide water resources planning process. Secondly, the important state-level functions involved in the preparation of a review for the longterm water resources assessments of all the state’s water resources are performed by others: the Minister (ie the Department) prepares a report on the advice of an ad hoc consultative committee, and the report is then reviewed by the Environmental Protection Authority of Victoria before public submissions on the report are reviewed by an expert panel appointed by the Minister.38 6.11 The water resources statutes of Tasmania and of the Northern Territory do not create standing state-level consultative or advisory committees. Rather, each jurisdiction’s Act authorises the Minister to create ad hoc committees for particular purposes that may assist the Minister at the state/territory level or, indeed, at the regional level.39

6.12 The Water Resources Act 2007 (ACT) makes no provision for a territory-wide consultative body to advise the Minister. The Environment Protection Authority of the Australian Capital Territory performs certain advisory functions, including keeping the territory water resources under review and maintaining up-todate information about them.40 However, as noted at [6.3] above, the authority is constituted by the appointment of a public servant. It does not purport to provide advice on the basis of a broader range of expertise or representative character. 6.13 A particular type of state-level consultative body has been established in New South Wales and Victoria to advise the respective governments on the investment of public funds on projects for the improvement of water resources management. [page 132] The New South Wales Act Water Investment Trust is established as a body corporate and agent of the Crown with the functions of promoting, organising, carrying out and funding projects for the improvement of water resources management, including restoration and rehabilitation of water sources and their dependent ecosystems, construction of works for more efficient delivery and use of water, and the conduct of research and development of technology and water industry adjustment.41 Thus, this trust is not only advisory; it has powers to carry out works and make grants and loans from the Water Investment Trust Fund. The constitution of the trust is to be prescribed by regulations,42 though none appear to have been made, and the relevant provisions of the Act have not yet commenced operation. By contrast, the Victorian Water Trust Advisory Council, consisting of three to five members appointed by the Minister, has the function of advising on the allocation of funds appropriated by parliament to projects and programmes that improve the

management and use of water resources.43 The funds of the trust have been allocated to educational and works projects, and to the preparation of discussion papers about key water future issues such as the future of irrigated agriculture in the Southern MurrayDarling Basin.44

Consultative and advisory bodies: regional and local 6.14 Each jurisdiction’s water resources legislation provides for regional consultative bodies to be constituted to advise the Minister in the administration of the legislation, especially with respect to water resources planning. As indicated above in relation to the state-level bodies, the key issues relating to these bodies are their constitution and functions. 6.15 The most prominent example of this type of body is in South Australia, which has established regional NRM boards ‘to undertake an active role with respect to the management of natural resources within its region’.45 In fact, the Minister has a duty to establish a regional NRM board for each NRM region.46 A regional NRM board is a body corporate and agent of the Crown. A board has up to nine members appointed by the Governor on the nomination of the Minister for their collective knowledge, skills and experience pertinent to enabling the board to perform its functions.47 Before nominating a person for appointment, the Minister must publish a notice and consult relevant peak bodies, including bodies representing Aboriginal people, seeking expressions of interest in appointment. The Act expresses in some detail the relevant knowledge, skills and [page 133] detail to be considered in nominating persons for appointment, and requires that a majority of members of a board reside within the relevant region and that a majority be engaged in activities

related to the management of land.48 At least one member of the board must be a woman, and one a man. If possible, the Minister should nominate at least one member who is a local council officer or elected member. A member may be appointed for a maximum term of four years, but will be eligible for reappointment to a maximum of two consecutive terms or three consecutive terms if a presiding member. A regional NRM board must establish the committees required by regulation and has the power to establish other committees as it sees fit.49 Such committees advise and assist the board. A board may also, with the consent of the Minister, establish NRM groups to operate within areas identified with its region. The NRM groups are bodies corporate and agents of the South Australian Crown. Their functions are to assist the regional NRM boards to perform their functions.50 A regional NRM board has substantial functions,51 including preparing, implementing and reviewing a regional NRM plan and carrying out works.52 It also has the functions of promoting integrated and sustainable NRM in its region, resolving ‘any issues that may arise between NRM groups’, ensuring decisions under the Natural Resources Management Act are integrated with those under the Development Act 1993 (SA), and providing advice, including on the condition of natural resources in its region. A regional NRM board reports to the Minister about its activities and may, on some occasions, be required to report to the Natural Resources Committee of the South Australian Parliament.53 6.16 In contrast to the duty of the South Australian Minister to establish regional NRM boards, the New South Wales Act simply empowers the Minister to appoint ‘management committees’ to carry out specific tasks in relation to water management in a water management area.54 The Act even provides that the Minister may appoint two or more committees for the one water management area so long as their tasks do not overlap. If a committee is to be appointed, it must consist of at least 12, but no more than 20,

members. Within that membership, at least two are to represent each of: environmental protection groups; water user groups; local councils; and Aboriginal persons. The government agencies are also to have a mandatory representation: at least one to represent catchment management authorities, one is to be a staff member of the Department, and one to be nominated by the Minister for Climate Change and the [page 134] Environment. One person (not a Departmental staff member) is to be an independent chairperson of the committee. The typical tasks that may be allocated to a management committee are to prepare a draft management plan, review a management plan, investigate matters referred by the Minister, and advise the Minister on such other matters as are referred to the committee for advice. With such a prescriptive set of principles for the appointment of management committees, one has to wonder why the New South Wales Government chose not to appoint consultative committees under these provisions for the preparation of the first management plans adopted in 2004: see chapter 15 at [15.37].55 6.17 The Western Australian Act has a similar set of quite prescriptive provisions for the appointment of local water resources management committees to assist and advise the Minister in the performance of the Minister’s functions.56 These provisions too have not been applied in the administration of the Act since its amendment in 2001. Instead, the then Western

Australian Water and Rivers Commission employed an obscure provision of its Act to appoint local consultative committees to advise the board of the commission.57 When the commission was abolished in 2007, the amending legislation creating the new administrative arrangements included a simple and broad power for the Minister to establish committees for the purpose of advising on the administration of the water legislation.58 These bland new provisions reflect some of the unresolved debate in Western Australia about the proper role of local management/advisory committees. 6.18 Different models of ad hoc community consultative committees have been employed in Queensland and Victoria, mainly in relation to the preparation of a plan. Under the Queensland Act, the former duty of the Minister to consult a ‘community reference panel’ in preparing a draft plan was replaced by a broad discretion determining whether to undertake public consultation on a water plan and by what arrangements.59 The Victorian Act requires the Minister to appoint a consultative committee to prepare a draft management plan,60 but is more prescriptive about its constitution. The Minister is required to make sure, so far as is possible, that all relevant interests are [page 135] fairly represented and that the membership consists of persons who have knowledge or experience in the matters to be covered in the plan.61 At least half of the membership must be persons who are landholders in the area concerned (in rural areas, this means farmers), and any public statutory body that is directly affected must be represented on the committee.62 The Victorian Act also gives the Minister an additional power to appoint advisory committees.63

6.19 As mentioned above in relation to state-level consultative committees, the Tasmanian and Northern Territory Acts authorise the respective Ministers to create ad hoc committees for particular purposes at the state/territory level or, indeed, at the regional level.64 The Tasmanian Act also contains a particular provision that enables a ‘water entity’ or a ‘group of landowners’ to apply to the Minister for an order that the water entity or proposed water entity is to be responsible for the administration of the whole or part of an adopted water management plan.65 This model of ‘selfmanagement’ appears similar to that probably intended under the West Australian Act by which a ‘local water resources management committee’ can be established to ‘assist’ the Minister in the performance of the Minister’s functions: see [6.17] above. 6.20 The Water Resources Act 2007 (ACT) makes no provision for local consultative committees. 6.21 In addition to the provisions for specifically water-related consultative committees, New South Wales and Victoria have created statutory frameworks for integrated natural resources and catchment management.66 Both frameworks create regional catchment management authorities that operate on the margins of water resources management with limited statutory authority, although the Minister in New South Wales may confer water management functions (such as assisting in plan preparation and monitoring its implementation) on public authorities.67

Water services regulation 6.22 As mentioned above at [6.1], the separation of the provision and regulation of water services from water resources management was one of the fundamental reforms initiated by the 1994 CoAG Water Reform Framework Agreement. Thus, each jurisdiction now has legislation to establish public corporatised water utilities operating on commercial principles and to provide for the

regulatory oversight of the provision of water services by both public and private sector entities. [page 136] The regulation of water services has focused on three key issues: the regulation of the delivery of water services by public- or private-sector entities to ensure safety and reliability; the regulation of water services pricing, especially by public-sector agencies; and the provision for new private service providers to access the monopoly infrastructure of the water industry. It is beyond the scope of this book to discuss these issues in detail. Rather, we give only a brief outline because the regulation of water services may intersect with the framework for the regulation of water resources management.68 In New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory, there are also state/territory regimes for regulating third-party access to public water service infrastructure. The Competition and Consumer Act 2010 (Cth) Part IIIA may also apply to regulate third-party access to water service infrastructure where a state regime does not apply.

New South Wales 6.23 In New South Wales, the regulation of water services is conducted by the Independent Pricing and Regulatory Tribunal (‘IPART’) and, in the case of the major public water utilities, also by the Governor.69 The licences conferred on major public utilities to operate water services are granted by the Governor under the legislation constituting the utilities,70 and subsequently administered and enforced by IPART.71 There is also provision for other statutory bodies to be constituted and authorised as water supply authorities under the Water Management Act 2000 (NSW) Chapter 6. The operation of water services by private-sector entities is regulated by IPART under the Water Industry

Competition Act 2006 (NSW), although the determination of service licence applications is made by the Minister administering that Act.72 The provision of irrigation water services by private entities is also regulated under the Water Management Act 2000 (NSW) Chapter 4. Importantly, public- and private-sector entities that are authorised to operate water services still need to obtain an access licence (and possibly other approvals) under the Water Management Act 2000 (NSW). IPART is also responsible for investigating and reporting to the Minister on the pricing of services by monopoly government agencies, including public water utilities.73 [page 137]

Queensland 6.24 In Queensland, the regulation of water services is conducted under the Water Supply (Safety and Reliability) Act 2008 (Qld) by the ‘chief executive’ of the Department of Energy and Water Supply (as distinct from the Department of Natural Resources and Mines, which administers the Water Act 2000) — described in the legislation as ‘the regulator’ and by the Department as the ‘Water Supply Regulator’.74 The primary step in service regulation is the maintenance of a register of ‘service providers’. The persons required to register are all the local government authorities and water authorities that own infrastructure for supplying water or sewerage services for which a charge is made, as well as each person who is the owner of infrastructure for supplying water or sewerage services.75 A drinking water service provider is then obliged to maintain and comply with an approved water-quality plan for their service.76 There is also specific provision for regulation of recycled water management.77 The establishment and operation (including rating) of water

authorities to carry our ‘water activities’ (such as water conservation and supply, irrigation, drainage and flood control)78 is regulated under the Water Act 2000 (Qld) Chapter 4. In 2006, Queensland also created the Queensland Water Commission (‘QWC’) to advise the Minister on ensuring the delivery of a sustainable and secure water supply, and demand management, in South East Queensland.79 The key role of the QWC was to supervise the new integrated and vertically separated water supply regime (including four new public entities for bulk water supply, desalinated — manufactured — water supply, bulk water transit and retail supply grid manager) to supply these water services under the South East Queensland Water (Restructuring) Act 2007 (Qld). In 2013, the separated structure was combined to form the Queensland Bulk Water Supply Authority, which trades as Seqwater, supplying water to local-council-owned water retailers.80 The QWC was also abolished and its strategic watermanagement functions transferred to Seqwater. The regulation of pricing of monopoly business activities and third-party access to services infrastructure is conducted by the Queensland Competition Authority,81 with special provisions applying to the pricing and supply of water. [page 138]

South Australia 6.25 The main provider of water supply and sewerage services in South Australia is ‘SA Water’, a government business enterprise.82 The performance of these services is regulated by the Essential Services Commission (‘ESC’) under the Water Industry Act 2012 (SA), especially through licensing of water industry entities.83 The ESC makes pricing determinations for water services, both consulting and reporting to the Minister (Treasurer) and to the Industry Minister.84 SA Water conducts services on essentially a

monopoly basis, though the performance of many of its functions is by private contractors.85 There are now two exceptions to this regime, the first being the provision of irrigation services, which are regulated under the Irrigation Act 2009 (SA). This Act provides for the establishment (or continuation) and governance of private irrigation trusts to provide irrigation water supply and drainage services to those persons contracting for such services. The Act’s reforms recognise the South Australian Government’s progressive removal of itself from administration of irrigation services in fulfilment of national water policy.86 The second exception is the provision of a third-party access regime for water infrastructure owned by SA Water, which was introduced by the insertion from July 2016 of Part 9A to the Water Industry Act 2012.87 These provisions are administered by the ESC88 and aim to provide a ‘negotiate/arbitrate’ process for private-sector businesses to gain access to the natural monopoly water transport infrastructure (supply and sewerage) of SA Water in order to enhance competition in the water industry.89

Tasmania 6.26 The delivery of water supply and sewerage services in Tasmania is now mainly performed by Tasmanian Water and Sewerage Corporation, which was established in 2012 with share capital owned by local councils, and operates on commercial principles to deliver water and sewerage services and to encourage water conservation, demand management and water re-use.90 There is also provision under the Water Management [page 139] Act 1999 (Tas) Part 9 for ‘water entities’ to perform the services in water districts for water supply and irrigation, riverworks and

drainage, and hydroelectricity. The Act defines ‘water entity’91 to mean a list of bodies, including a local government council, an authority constituted under the Local Government Act, an electricity entity (a body that generates hydro-electricity), a trust established under Part 10 of the Water Management Act itself, a body corporate under the Corporations Act or a body registered under the Cooperatives Act 1999 (Tas). The definition of water entity also includes a ‘Government Business Enterprise’, which is defined by Sch 1 of the Government Business Enterprises Act 1995 (Tas) and does not include the Water and Sewerage Corporation. In order for a body corporate, a trust or a cooperative to be approved as the water entity to administer the water service in a district, it must satisfy a level of land ownership by its members in the water district.92 The regulation of water supply and sewerage services is conducted under the Water and Sewerage Industry Act 2008 (Tas), primarily by the licensing of the operation of water or sewerage infrastructure and the provision of water or sewerage services, as defined by that Act, and by scrutiny of a proposed price and services plan.93 The services licensing system is administered by ‘the Regulator’ under the Economic Regulator Act 2009 (Tas).94 For the purposes of regulating the provision of water services by water entities under the Water Management Act 1999 (Tas), that Act incorporates the Waterworks Clauses Act 1952 (Tas) and the Irrigation Clauses Act 1973, which regulate the construction of works and the supply of water. For the regulation of third-party access to water infrastructure, Tasmania applies the Commonwealth law.95

Victoria 6.27 As explained above at [6.7], Victoria has maintained an institutional framework of water corporations/authorities that perform both regulatory and service functions. Those authorities, in their service delivery capacity — together defined as ‘regulated

entities’ and the ‘regulated water industry’ — are regulated under the Water Industry Act 1994 (Vic). That Act was amended in 2012 to convert the three retail providers of water services in Melbourne from special-purpose Corporations Act companies into statutory water corporations established with powers and functions under the Water Act 1989 and subject to the same service regulation as all other water corporations.96 Key aspects of the service regulation under the Water Industry Act are administered mainly by the Essential Services [page 140] Commission (‘ESC’),97 with the objective of ensuring ‘that regulatory decision making has regard to the health, safety, environmental sustainability (including water conservation) and social obligations of regulated entities’.98 While the Governor in Council may issue a water industry regulatory order to set regulatory parameters, including conferring powers on the ESC,99 the core powers to regulate the provision and pricing of services are exercised by the ESC, especially through the issue and enforcement of codes.100 Also, the Minister may, after consultation with the Treasurer and ESC, issue ‘statements of obligation’ to a regulated entity, which prevail over any inconsistent provisions of a code.101 The reformed regulatory framework retains the constitutional legal requirement that a water service provider be a Victorian public authority responsible to a Victorian Minister of the Crown.102 The Essential Services Commission also regulates third-party access to services infrastructure.103

Western Australia 6.28 The Economic Regulation Authority (‘ERA’) administers service licensing under the Water Services Act 2012 (WA) in

respect of the services of water supply, sewerage, irrigation and drainage.104 A person, including a statutory water services provider, must not provide water services without a licence, unless exempted by the Minister.105 A body corporate providing a water service to a related body corporate does not need a water licence.106 In granting a licence, the ERA will define the operating area of the licence or class of service; the area need not be exclusive to one service provider.107 Licence conditions may require compliance with codes of practice promulgated by the Minister or a code of conduct made by the ERA.108 The Minister administering the water resources legislation also administers the Water Services Act.109 There are more than 30 licensed water service providers in Western Australia.110 The principal providers of public water supply and sewerage services in Western Australia [page 141] are the Water Corporation, Aqwest (formerly Bunbury Water Corporation) and the Busselton Water Corporation, all of which are, since 2012, incorporated under the one Act with a broad range of functions.111 There are also a number of irrigation cooperatives, local government authorities and private companies providing a range of licensed water services.112 The ERA also conducts inquiries about aspects of the regulated industries, including pricing of the retail supply of water.113 The authority presents the reports on its inquiries to the Minister and limits on a licensee’s water fees and charges may be set by licence condition, a code or regulation.114 There is no state regulation of third-party access to water services infrastructure.

Northern Territory 6.29 Water supply and sewerage services are mainly provided in

the Northern Territory by the Power and Water Corporation, a government-owned corporation.115 In the performance of its functions, it must hold and comply with any relevant licence under the Water Act 1992 (NT), which regulates access to the water resources. The provision of the water services is licensed under the Water Supply and Sewerage Services Act (NT), which is administered by the Utilities Commission116 subject to certain powers of the Minister for Essential Services. The Utilities Commission also has the power to regulate water pricing.117 There is not territory regulation of third-party access to water service infrastructure.

Australian Capital Territory 6.30 In the Australian Capital Territory, water services are provided by Icon Water, a territory-owned corporation.118 Although the provision of water delivery infrastructure is regulated under the Water and Sewerage Act 2000 (ACT), the regulation of the provision of water supply and sewerage services is conducted by the Independent Competition and Regulatory Commission119 under the Utilities Act 2000 (ACT). A person (including Icon Water) must not provide a water or sewerage service without a services licence.120 The Commission also has power to approve the terms of a standard customer [page 142] contract, including the charges payable under the contract.121 The Commission may give water pricing directions and seeks to register agreements for third-party access to infrastructure.122 If a dispute arises under such an agreement, the Commission may arbitrate the dispute if the agreement provides that.

Commonwealth institutions 6.31 Until 2004, the Commonwealth Government had no significant institutional framework for the management of water resources. From 1995, the National Competition Council123 had performed the function of auditing the states’ and territories’ performance of their commitments under the 1994 CoAG Water Reform Framework Agreement, which were termed the National Competition Policy (‘NCP’) water reforms.124 The states and the Commonwealth agreed in the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’)125 to the establishment of an NWC to assist with the implementation of the NWI.

The National Water Commission 6.32 The National Water Commission Act 2004 (Cth) established the NWC as a Commonwealth body under the control of the Commonwealth Minister but with certain federal characteristics. For example, the states could nominate some members for appointment as commissioners and the NWC fostered and assessed state water reform activities: see chapter 3. The NWC was closed in 2014 and the Act repealed in 2015,126 with the function of assessing implementation of the NWI conferred on the Productivity Commission.127 The first edition of this book described the constitution and functions of the NWC, which do not bear repeating here. Rather, a brief appraisal of the NWC is noted. ‘Taken together, these NWC roles approximate what some experimentalists have called a “new central body” that reduced the cost of information flows, fostered opportunities for benchmarking and accountability processes and facilitated horizontal diffusion of best practice and continual improvements.’128 [page 143]

As the NWC said in its 2014 final assessment report, the water reforms are not completed and Australian governments need to ‘safeguard independent and public oversight of key water reform elements and to pursue this report’s ten recommendations through other institutional frameworks’.129 The function of assessing implementation of the NWI and a further NWC function of auditing the effectiveness of the implementation of the Basin Plan have both been conferred on the Productivity Commission.130

The Water Act 2007 (Cth): new institutions and institutional roles 6.33 The Water Act 2007 has created the MDBA as a Commonwealth agency to take over as the manager of the MDB. However, given its particular role in managing the interstate issues it is discussed in chapter 7 at [7.19] ff.

The Commonwealth Environmental Water Holder 6.34 The Water Act 2007 (Cth) Part 6 established the office of the Commonwealth Environmental Water Holder (‘CEWH’), an office that is to be filled by appointment under the Public Service Act 1999 (Cth). The functions of the CEWH are to manage Commonwealth environmental water holdings and administer the Environmental Water Holdings Special Account. Performance of these functions involves the purchase and sale of water access rights and related rights, making available water from the holdings, and the making of contracts or other arrangements for the taking and use of water from the holdings, as well as maintaining records of the holdings. An early (2014) analysis suggests that it is beneficial for the CEWH to engage in water markets.131 The CEWH is authorised to perform these functions for the purposes of protecting or restoring the environmental assets within and outside the MDB so as to give effect to relevant international agreements. Thus, the activities of the CEWH need not be restricted to interstate water resources.

Although the CEWH must operate within relevant water management plans, and the Minister may make operating rules for the CEWH, neither the Secretary of the Department nor the Minister may give directions to the CEWH about the performance of its core functions.132 Further, state laws regarding the use of water on land that a person does not own do not apply to the CEWH in the performance of its core functions.133 [page 144] The CEWH is required to report annually to the Minister who is obliged to table the report in the Commonwealth Parliament.134

Engagement of other Commonwealth agencies 6.35 The Water Act 2007 (Cth) has, especially with the 2008 amendments, given existing Commonwealth agencies new waterresources-related functions. The Australian Competition and Consumer Commission has been given the roles of advising the Minister on the making of water charge rules, monitoring the compliance of water charges with the rules, and enforcing them (including where the water charge rules are adopted beyond the MDB).135 The water charge rules are discussed in chapter 21 at [21.30] and chapter 25 at [25.135] ff. The Bureau of Meteorology has been given the function of administering the new national water information regime: see chapter 15 at [15.12]–[15.13].

Summary of the institutional role of the Commonwealth 6.36 Although there has been a significant development of the Commonwealth’s institutional capacity in water resources management over the past five years, that capacity is directed at

policy development and implementation, including the supervision and facilitation of state regulatory activity. The Commonwealth has not, however, taken over the routine regulatory roles of the states and territories in the administration of water access rights. Except for the legal operation of the Basin Plan under the Water Act 2007 (Cth),136 the law of water access rights remains primarily a matter of state and territory law.

Challenges to governmental decision making 6.37 There are two principal means of mounting challenges to governmental decision making. It is useful to keep in mind these different forms of challenge when reading the propositions from the various cases considered in the chapters that follow.

Judicial review 6.38 All executive government decision making in Australia that affects legal rights and interests is potentially subject to legal challenge by way of actions for judicial review in the superior courts; namely, in the Supreme Courts of each state and territory, and in the Federal Court and the High Court in relation to the administration of Commonwealth law.137 The constitutional premise of the rule of law means that executive government must act within the powers conferred on it and according to the procedures prescribed [page 145] by law. Certain governmental decisions will not be subject to judicial review because they are simply of a policy nature — that is, they are non-justiciable.138 However, subject to the rules of standing that determine whether a person has a legal interest at stake sufficient to support proceedings for judicial review, a

decision that involves a policy choice, such as the adoption of a statutory management plan, will still be susceptible to judicial review. Similarly, there are constitutional limits on what parliaments may enact as legislation. In recent years, there have been a number of significant (and unsuccessful) challenges to the constitutional validity of Commonwealth and state water resources legislation: for example, see chapter 5 at [5.37], [5.38] and [5.61]–[5.63]. The important point to remember about judicial review is that a court is concerned only with the legality of the executive government decision or action, not with its policy merits. Consequently, the remedies of judicial review will generally leave the governmental decision maker free to make the challenged decision again according to the correct understanding of the law conveyed by the court.

Merits review of administrative decisions 6.39 In addition to the primary structure of regulatory agencies, each jurisdiction provides for a system of merits review or administrative appeals against regulatory decisions by government agencies. The right to apply for merits review only exists if it is conferred by statute. There is no common law or constitutional right to appeal against the merits of a regulatory decision. Furthermore, legislation will normally only provide for rights to apply for merits review of regulatory decisions that affect persons in their individual interests; such as decisions by a regulatory agency to refuse an application for the grant, amendment or transfer of a water licence, or decisions of an agency to cancel a licence or issue a notice directing a person to take certain action. Thus, there will be no rights to merits review of a decision to adopt a management plan because it is of a quasilegislative nature and (usually) will affect a section of the community, not just one or two persons in their individual capacity.

Some jurisdictions, such as New South Wales, also confer rights of appeal on third parties affected by the regulatory decision.139 Other jurisdictions, such as Western Australia, deny all third-party rights of appeal.140 6.40 The important point to remember about merits review is that the appellate body or tribunal stands in the position of the decision maker and makes the decision on the best information available at the time. Although an appellate body is expected to ascertain and apply the correct law, the purpose of its appellate function is to determine the best decision on the merits. Depending on the terms of the relevant statute conferring the right to apply for merits review, it is generally not sufficient for the merits review tribunal [page 146] or decision maker (eg a minister) to ask simply whether the primary decision maker has made an error: Environment Centre Northern Territory Inc v Minister for Land Resource Management [2015] NTSC 30, especially at [20] ff. In that case, the Minister determined the appeal on the basis that the Minister should only re-make the decision if it was established that there was an error in the original decision. It was held that the Minister had wrongly refused to determine the application for review. An important consideration in the case was the strong public interest and the management of the water resources: at [147]–[148]. Matters determined on appeal are not returned to the primary decision maker for reconsideration, although the decisions of merits review tribunals may act as useful precedent for guiding future agency decision making. Because of the nature of the Commonwealth Government’s mainly policy role, there are no relevant rights of merits review of Commonwealth decisions except under the Competition and

Consumer Act 2010 (Cth) Part IIIA in respect of the operation of the third-party access regime.

Conclusion 6.41 The institutional framework of water resources law shows that water access rights in Australia are regulated by state and territory agencies, which are subject to supervision and coordination of high-level policy from agencies of the Commonwealth. In addition, there are systems of judicial and merits review that maintain a more detailed oversight of the routine administration by state and territory agencies. The Commonwealth Government will also be subject to the supervision of judicial review in the administration of its new legislation — the Water Act 2007 (Cth). This may potentially bring a new era to the management of interstate water resources. Thus far in Australia’s modern history, the jurisdictions sharing water resources have managed to resolve their disputes by political agreement, albeit agreements that have been supported by complementary legislation in each jurisdiction involved. The implementation and enforcement of these interstate arrangements has been left to political processes and been usually dependent on consensus management. The greater involvement of the Commonwealth in interstate water management has seen that change to a limited extent.

1.

2.

Council of Australian Governments meeting, February 1994, Communiqué, Attachment A, available at the website of the National Competition Council relating to National Competition Policy: , ‘The Compendium of National Competition Policy Agreements, 2nd edition, 1998’, p 103; see para 6, especially (a)–(c). The regulation of irrigation cooperatives and the challenges they have faced in adapting to the implementation of the NWI policy are discussed in J McLeod and G Warne, ‘Coping with the Reforms to Irrigated Agriculture’ in L Crase (ed), Water Policy in Australia: The Impact of Change and Uncertainty, Resources for the Future, Washington DC, 2008, Chapter 7.

3.

See NWI paras 64–77, especially 74, and 93–97. A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): .

4.

5.

A copy of the 2008 MDB Reform Agreement is available on the website of the Council of Australian Governments: and follow links to ‘Meeting outcomes’, ‘COAG Meeting, 3 July 2008’, ‘Attachments’, ‘Intergovernmental agreements’ and ‘Murray-Darling Basin Intergovernmental Agreement’. Water Resources Act 2007 (ACT) ss 12–15 and 17.

6. 7.

Water Resources Act 2007 (ACT) ss 24–25. Water Resources Act 2007 (ACT) s 26.

8. 9.

Water Resources Act 2007 (ACT) ss 29–30. Environment Protection Act 1997 (ACT) s 11; Legislation Act 2001 (ACT) s 163. Currently, the Environment, Planning and Sustainable Development Directorate.

10. 11.

Water Management Act 2000 (NSW) Chapter 8, Part 2. Water Agencies (Powers) Act 1984 (WA) Part II, Division 2.

12. 13.

Water Management Act 2000 (NSW) ss 371–372. Water Management Act 2000 (NSW) ss 373 and 375.

14.

15.

Water NSW Act 2014 (NSW). See also M Cole, ‘In the pipeline: How the Water NSW Act 2014 facilitates coal seam gas development in New South Wales’ (2015) 32 EPLJ 131. Water Act 1989 (Vic) s 3, definition of ‘Authority’.

16. 17.

Water Act 1989 (Vic) Part 6, Division 1 and Sch 1. Water Act 1989 (Vic) s 95.

18. 19.

Water Act 1989 (Vic) ss 93 and 94. The powers of an authority to manage a water supply district, sewerage district, waterway management district or irrigation district are set out in separate parts of the Water Act 1989: Parts 6A–6C, 7 and 8–11.

20.

21.

A description of the various water corporations can be found on the website of the Victorian Government Department of Environment, Land, Water and Planning: and follow links to ‘Water’, ‘Governing water resources’ and ‘Water corporations’. Water Act 1989 (Vic) s 122G(2).

22. 23.

Water Act 1989 (Vic) s 122H. Water Management Act 2000 (NSW) ss 387–388.

24. 25.

Water Act 1989 (Vic) Part 14A. Statutes Amendment (Boards and Committees — Abolition and Reform) Act 2015 (SA) s 152.

26.

Water Resources Legislation (Amendment) Act 2007 (WA) Part 7, inserting Part IIA of the Water Agencies (Powers) Act 1984 (WA). The consequence of this was that it was not possible to complete the statutory process for making statutory water management plans under Rights in Water and Irrigation Act 1914 (WA) s 26GZE.

27.

The Queensland Water Commission was established by the insertion of Chapter 2A into the Water Act 2000 (Qld) by the Water Amendment Act 2006 (Qld) in order to lead the structural reforms for managing demand and supply of water in south-east Queensland during the height of the millennium drought. See also M Walton, ‘Droughts, floods and South East Queensland water reform’ (2009) LGLJ 46.

28.

Water and Other Legislation Amendment Act 2010 (Qld) Part 14, inserting Chapter 3 into the Water Act 2000 (Qld) to implement ‘underground water obligations’ of resource tenure holders. South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012. The Commission ceased to function at the end of 2012. The functions of the Office of Groundwater Impact Assessment are now governed by Chapter 3A of the Water Act 2000 (Qld): see chapter 15.

29.

30. 31.

Water Management Act 2000 (NSW) s 387. See chapter 16 at [16.68] for discussion of ‘bulk access regimes’ and chapter 4 at [4.18]–[4.22] for discussion of the ‘water sharing principles’.

32. 33.

Water Management Act 2000 (NSW) s 43A. See also chapter 15 at [15.74] for discussion of duration of a plan. This task is performed under the Catchment Management Authorities Act 2003 (NSW) s 5. See also discussion of the monitoring of the implementation of a plan in chapter 15 at [15.64]–[15.66].

34. 35.

Catchment and Land Protection Act 1994 (Vic) Part 2, Divisions 1 and 1A. Catchment and Land Protection Act 1994 (Vic) s 4(a)(ii).

36. 37.

Catchment and Land Protection Act 1994 (Vic) s 9(a)(ii) and (b). For example, see Water Act 1989 (Vic) ss 3, 22C(2)(b), 32C(2)(b), 64T(2), 64V and 122G.

38. 39.

Water Act 1989 (Vic) ss 22K–22T. See also discussion of the long-term water resources assessment process in chapter 15 at [15.8]. Water Management Act 1999 (Tas) s 9; Water Act 1992 (NT) s 23.

40. 41.

Water Resources Act 2007 (ACT) s 64. Water Management Act 2000 (NSW) Chapter 8, Part 3.

42. 43.

Water Management Act 2000 (NSW) s 379(5). Water Act 1989 (Vic) Part 14A.

44.

See Victorian Government, Department of Sustainability and Environment, ‘Ourwater’ website: and follow links to ‘Government programs’ and ‘Victorian Water Trust’. Natural Resources Management Act 2004 (SA) Chapter 3, Part 3, Divisions 1–4, especially s 29(1)(a) and (b).

45. 46. 47.

Natural Resources Management Act 2004 (SA) s 23(1). Natural Resources Management Act 2004 (SA) s 25.

48. 49.

Natural Resources Management Act 2004 (SA) s 25(4). Natural Resources Management Act 2004 (SA) s 35.

50.

Natural Resources Management Act 2004 (SA) Chapter 3, Part 4.

51.

Natural Resources Management Act 2004 (SA) s 29.

52. 53.

Natural Resources Management Act 2004 (SA) s 31. Natural Resources Management Act 2004 (SA) s 29(3) and (6).

54.

Water Management Act 2000 (NSW) s 12(1). For example, water sharing or floodplain management. C Holley and D Sinclair, in ‘Deliberative participation, environmental law and collaborative governance: Insights from surface and groundwater studies’ (2013) 30 EPLJ 132, give an interesting account of consultative process for making a watersharing plan in the Namoi Valley, NSW, focusing on the process of regional committee consultation. These issues are addressed in chapter 15.

55.

56. 57.

Rights in Water and Irrigation Act 1914 (WA) ss 26GK–26GM. Water and Rivers Commission Act 1995 (WA) Sch 1, para 15.

58.

See Water Agencies (Powers) Act 1984 (WA) s 109, inserted by Act No 38 of 2007, s 134. Water Act 2000(Qld) ss 44 and 46, inserted by Water and Other Legislation Amendment Act 2014 (Qld) Part 8, to streamline regulation: Queensland Government, ‘Consultation Regulatory Impact Statement Strategic Review of the Water Act 2000, July 2014’. The current government stalled the amendments by Governor’s proclamation on 17 February 2015, amending Governor’s proclamation from 18 December 2014, and then adopted the provision in the Water Legislation Amendment Act 2016, Part 4.

59.

60. 61.

Water Act 1989 (Vic) ss 29(1) and 31. Water Act 1989 (Vic) s 29(2).

62. 63.

Water Act 1989 (Vic) s 29(2) and (3). Water Act 1989 (Vic) s 318.

64. 65.

Water Management Act 1999 (Tas) s 9; Water Act 1992 (NT) s 23. Water Management Act 1999 (Tas) ss 10, 44 and 167.

66.

Catchment Management Authorities Act 2003 (NSW) and Catchment and Land Protection Act 1994 (Vic). Water Management Act 2000 (NSW) s 389A.

67. 68.

69. 70.

71. 72.

Readers are referred to K Stoeckel, R Webb, L Woodward and A Parkinson, Australian Water Law, Lawbook Co, Sydney, 2012, chapters 6 and 7. See also J Gray and A Gardner, ‘Legal access to sewage and the “Re-invention” of wastewater’ (2008) 12(2) The Australasian Journal of Natural Resources Law and Policy 115. The Tribunal is established and functions under the Independent Pricing and Regulatory Tribunal Act 1992 (NSW). Water NSW Act 2014 (NSW) s 11, and Hunter Water Act 1991 (NSW) s 12. Under the Central Coast Water Corporation Act 2006 (NSW) s 33, the Minister may grant an operating licence. Independent Pricing and Regulatory Tribunal Act 1992 (NSW) Part 4B. See Constitution Act 1902 (NSW) s 50B and the Administrative Arrangements (Administration of Acts — General) Order 2017 (2017 No 17), which assigns the

73. 74.

administration of the Water Industry Competition Act 2006 (NSW) to the Minister for Energy and Utilities, though Part 3: Access to Infrastructure, is assigned to the Premier. Independent Pricing and Regulatory Tribunal Act 1992 (NSW) Part 3, Division 1. Water Supply (Safety and Reliability) Act 2008 (Qld) ss 10–11. See also Queensland Government, Department of Energy and Water Supply, website ‘Water industry regulation’: and follow links to ‘Water’ and ‘Industry regulation’. See Administrative Arrangements Order (No 1) 2015, made under the Constitution of Queensland 2001 (Qld) s 44.

75. 76.

Water Supply (Safety and Reliability) Act 2008 (Qld) s 20 ff. Water Supply (Safety and Reliability) Act 2008 (Qld) Chapter 2, Part 4, especially ss 92–93.

77. 78.

Water Supply (Safety and Reliability) Act 2008 (Qld) Chapter 3. Water Act 2000 (Qld) Chapter 4, and definition of ‘water activity’ in the dictionary.

79. 80.

Water Act 2000 (Qld) Chapter 2A as enacted in 2006: see [6.8] above. South East Queensland Water (Restructuring) and Other Legislation Amendment Act 2012. See also: amended South-East Queensland Water (Restructuring) Act 2007, South-East Queensland (Distribution and Retail Restructuring) Act 2009 and Queensland Urban Utilities website, ‘who we are’: .

81.

Queensland Competition Authority Act 1997 (Qld) Parts 3 and 5, with special provisions relating to the pricing and supply of water in Part 5A. South Australian Water Corporation Act 1994 (SA).

82. 83.

84. 85.

Water Industry Act 2012 (SA) especially Part 4. Under the Essential Services Commission Act 2002 s 3, the definition of ‘essential services’ includes ‘water and sewerage services’. Essential Services Commission Act 2002 (SA) s 5, especially Part 3, linking with Water Industry Act 2012 (SA) s 35.

86.

Government of South Australia, South Australian Water Corporation, Annual Report, year ending 30 June 2016, Chair’s Message, v. Parliament of South Australia, Hansard, House of Assembly, second reading speech on Irrigation Bill by the Hon K A Maywald, Minister for Water Security, 4 March 2009.

87. 88.

Water Industry (Third Party Access) Amendment Act 2015 (SA). Water Industry Act 2012, s 86C.

89.

90.

Parliament of South Australia, Hansard, House of Assembly, second reading speech on Water Industry (Third Party Access) Amendment Bill, by the Hon I K Hunter, Minister for Minister for Water and the River Murray, 11 February 2015. Water and Sewerage Corporation Act 2012 (Tas) ss 5–7.

91. 92.

Water Management Act 1999 (Tas) s 3. Water Management Act 1999 (Tas) s 166.

93.

Water and Sewerage Industry Act 2008 (Tas) ss 3 (interpretation), 30, 31 (the

94. 95. 96.

Minister may declare an activity to be or not be a ‘regulated activity’), and 63–68A. Water and Sewerage Industry Act 2008 (Tas) Part 4. Competition Policy Reform (Tasmania) Act 1996 (Tas) especially ss 4 and 5.

97.

Parliament of Victoria, Hansard, Assembly, Minister for Water, second reading speech on Water Amendment (Governance and other reforms) Act 2012 (Vic), 29 February 2012, 617–618. The three water retailers so converted were City West Water, South East Water and Yarra Valley Water. See also Water Act 1989 (Vic) s 85(1a) and generally Parts 6–10. Essential Services Commission Act 2001 (Vic).

98. 99.

Water Industry Act 1994 (Vic) s 4C(c). Water Industry Act 1994 (Vic) ss 4D and 4E.

100. Water Industry Act 1994 (Vic) s 4F. The ESC’s powers to regulate pricing are supplemented by Part 3 of the Essential Services Commission Act 2001 (Vic). 101. Water Industry Act 1994 (Vic) s 4I. 102. Constitution Act 1975 (Vic) Part VII, Delivery of Water Services, inserted by the Constitution (Water Authorities) Act 2003 (Vic). And see Parliament of Victoria, Hansard, Assembly, Minister for Water, second reading speech on Water Amendment (Governance and other reforms) Act 2012 (Vic), 29 February 2012, 617–618. 103. Essential Services Commission Act 2001 (Vic) Part 3A. 104. Economic Regulation Authority Act 2003 (WA) s 25 and Water Services Act 2000 (WA) ss 8 and 207. 105. Water Services Act 2012 (WA) ss 5–7. 106. Water Services Act 2012 (WA) s 5(2). 107. Water Services Act 2012 (WA) s 9. 108. Water Services Act 2012 (WA) ss 26 and 27. 109. Western Australian Government, State Law Publisher, Acts with Administering Portfolios. 110. Government of Western Australia, Economic Regulation Authority, ‘On Tap: Water Consumers’ Guide’, ‘The Basics’, available on the website of the WA Economic Regulation Authority: . 111. Water Corporations Act 1995 (WA), as amended in 2012, ss 4 and 27. 112. The list of service licensees is shown on the website of the Economic Regulation Authority: and follow the links to ‘Water’, ‘Water licensing’ and ‘Licence holders’. 113. Economic Regulation Authority Act 2003 (WA) Part 5. 114. Water Services Act 2012 (WA) s 123. 115. Power and Water Corporation Act (NT), especially s 14A. 116. Utilities Commission Act (NT). 117. Utilities Commission Act (NT) Part 3, Division 8. 118. Territory-owned Corporations Act 1990 (ACT) s 6 and Sch 1.

119. The Commission is established under the Independent Competition and Regulatory Commission Act 1997 (ACT). 120. Utilities Act 2000 (ACT) ss 11–14 and 21. 121. Utilities Act 2000 (ACT) s 89. 122. Independent Competition and Regulatory Commission Act 1997 (ACT) Parts 4–6, especially s 20. 123. The Council is constituted under the Trade Practices Act 1974 (Cth), Part IIA. 124. Australian Government, National Competition Council, ‘Water: NCP Water Reforms’ available at the website of the Council: and follow links to ‘National competition policy’, ‘Major areas of reform’ and ‘Water’. See also chapter 3 at [3.10]–[3.11]. 125. NWI para 10. A copy of the NWI is available on the CoAG website: and follow links to ‘CoAG meeting outcomes’, ‘Archive’ and ‘25 June 2004’. It is also on the website of the National Water Commission: and follow links to ‘Water reform’ and ‘National Water Initiative’. 126. National Water Commission (Abolition) Act 2015 (Cth). 127. National Water Commission (Abolition) Act 2015 (Cth), amending the Productivity Commission Act 1998 and inserting a new Part 3, ss 87–89 in the Water Act 2007 (Cth). 128. C Holley and D Sinclair, ‘Rethinking Australian Water Law and Governance: Successes, Challenges and Future Directions: Introduction to this Special Issue’ (2016) 33 EPLJ 275 at 279. 129. Australian Government, National Water Commission, letter from the Chair of the NWC to Prime Minister Abbott presenting the fourth (final) assessment report, 22 September 2014. 130. Water Act 2007 (Cth) Part 3 amended by National Water Commission (Abolition) Act 2015 (Cth), also amending the Productivity Commission Act 1998 (Cth). See also chapter 15 at [15.105]. The Water Amendment Act 2008 also added s 74A, a provision that the Minister may seek the advice of the NWC before determining the operation of the NWI risk assignment framework as modified for the MDB. This element of the s 74A process has been removed. 131. T Ancev, ‘The role of the commonwealth environmental water holder in annual water allocation markets’ (2015) 59(1) The Australian Journal of Agricultural and Resource Economics 133. 132. Water Act 2007 (Cth) s 107. 133. Water Act 2007 (Cth) s 110. 134. Water Act 2007 (Cth) s 114. 135. Water Act 2007 (Cth) ss 93–94, 100A and 100D. 136. The legal operation of the Basin Plan under the Water Act 2007 (Cth) is discussed in chapter 17 at [17.21]. 137. For a concise overview of judicial review in Australia, see W Lane and S Young, Administrative Law in Australia, 2nd edn, Thomson Reuters (Lawbook Co), Sydney

2017, chapter 2. 138. Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. See also fn 137 at 39–41. 139. Water Management Act 2000 (NSW) s 368. 140. Rights in Water and Irrigation Act 1914 (WA) ss 26GG–26GJ.

[page 147]

7 INTERSTATE ARRANGEMENTS 7.1 A major challenge for Australian water resources management has been addressing transboundary issues, especially in the Murray-Darling Basin (‘MDB’). Those issues have been addressed by unresolved questions of the riparian rights of states, agreements between the interested states that are ratified by legislation, and agreements between the Commonwealth and relevant states that are typically implemented by cooperative schemes of legislation. By far the most important means of resolving interstate issues has been the interstate agreement with Commonwealth participation and legislative ratification. We briefly note the doctrine of riparian rights of states before discussing the MDB Agreements and giving a brief overview of the Snowy Mountains Scheme and other interstate agreements, some of which involve the Commonwealth and some of which do not.

Riparian or common law rights of the states 7.2 This common law doctrine was much discussed in the 1890s by the MDB colonies in the context of constitutional convention debates that led to the adoption of the Commonwealth Constitution.1 The doctrine was disputed, especially by New South Wales. Even so, the fact that the states are the major riparian owners (that is, owners of the bed and banks of rivers) in Australia2 must surely strengthen the argument for the potential

operation of the doctrine, albeit a doctrine that is modified from the riparian doctrine that applies within one jurisdiction between private persons.3 In essence, the doctrine applied to interstate rivers could mean that each of the states has the right to a reasonable or equitable use of the shared resource and that such a right would limit what one state may do unilaterally with that shared resource. In 1971, Renard proposed a doctrine of ‘reasonable sharing’, applicable to the regulation of the flow, diversions and pollution.4 He argued that the High Court could develop such a principle as a doctrine of interstate common law, consistent with constitutional implications of equality of [page 148] the states, to resolve a transboundary river dispute between states, as the United States Supreme Court has done with its doctrine of ‘equitable apportionment’.5 In Australia, only the High Court of Australia would have the jurisdiction to apply such a doctrine to resolve disputes over interstate rivers. It has never had the occasion to do so; proposed litigation by South Australia in 1904– 05 never proceeded.6 7.3 Webster (2015) says that such a doctrine would be inconsistent with contemporary constitutional interpretation and that, if there were to be any limit on a state’s legislative and executive powers that gave effect to such a doctrine, it would be better implied directly from the constitution.7 He concludes that it is difficult to find a general constitutional doctrine of equality between the states that might support an implied doctrine of an ‘equitable’ or ‘reasonable’ sharing of the waters of a transboundary river. He also objects that giving content to any such implication ‘raises difficult practical questions’.8 With respect, it is not necessary to see the common law right as an alternative foundation to an implied constitutional requirement of equality;

rather, they operate together. As the High Court has pointed out, the common law of Australia and the requirements of constitutional implications develop according to ‘changing circumstances’ and ‘what is for the common convenience and welfare of society’.9 The Australian common law can be developed by reference to international law and international legal comparison.10 We should consider the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, which entered into force in 2014 and is regarded as reflecting customary international law. It includes the basic rules that states agree to the equitable and reasonable sharing of the watercourse, to take all appropriate measures to prevent significant harm to co-riparian states, to consult on any new or changed use, and to protect the ecosysems of the watercourse.11 The US Supreme Court continues to apply the doctrine of equitable apportionment and ‘recently accepted a case involving environmental needs’.12 However, as a common law doctrine, it is subject to displacement by an interstate agreement that is ratified by legislation of the participating [page 149] jurisdictions.13 Since the first decade of Australian federation, such interstate agreements have been the normal mode of addressing the interstate sharing of water resources, especially in the MDB.

The Murray-Darling Basin Agreements: 1914, 1992, 2008 Early history: the 1914 Agreement 7.4 The history of the management of the MDB has been well and truly told by others.14 Some of that history is recounted in chapter 3 at [3.3]–[3.5], explaining the early concerns of the

Commonwealth in the development of national water law reform policy. The MDB was the primary focus of Commonwealth and interstate attention to management of water resources for decades. 7.5 The Commonwealth and the three main MDB states (New South Wales, South Australia and Victoria) made the River Murray Waters Agreement 1914, which provided for the sharing of the waters of the River Murray and its tributaries as well as the sharing of the costs of engineering works and their ongoing maintenance.15 The 1914 Agreement also established the River Murray Commission to administer the Agreement. Although there were amendments to the 1914 Agreement in 1948 and 1958 that secured a better share of the River Murray’s waters for South Australia, there were serious problems emerging with the health of the river by the 1970s, principal among them the level of salinity in the water. This was again a major cause of concern for South Australia, which depended on the River Murray for much of its public water supply as well as for irrigation. There was a growing need to manage land use and development in the catchment to protect water quality as well as increasing concern about overallocation of the water resource undermining security of water entitlements and the health of the riverine ecosystem. This led to the Commonwealth, New South Wales, South Australia and Victoria making the new MDB Agreement in 1987, which was executed in amended form in 1992 and ratified by legislation in each participating jurisdiction (‘1992 MDB Agreement’).16 Queensland became a party to the 1992 Agreement in 1996.17 The Australian Capital Territory gained formal observer status under the 1992 [page 150] MDB Agreement by a 1998 Memorandum of Understanding, and became a full party to the Agreement in 2006.18

The Murray-Darling Basin Agreement 1992 7.6 The 1992 MDB Agreement was given legislative effect by the complementary legislation of each participating jurisdiction.19 It affirmed a new cooperative institutional structure that had evolved in the recent decades: the Ministerial Council that gave policy leadership, the Murray-Darling Basin Commission (‘MDBC’) that was responsible for the routine administration of the Agreement and providing expert advice to the Council, and a community advisory committee that advised the Council from a community perspective. Our purpose here is to describe briefly the nature of the institutional arrangements and the issues around implementation and enforcement of the 1992 MDB Agreement to set the scene for a brief comparative explanation of the 2008 MDB Agreement. The key policy instruments made or to be made by the institutions are discussed in Part 4: Planning, and in Part 6: Water trading. The extensive provisions regarding the distribution of waters between the states are not discussed.

The institutions 7.7 The Agreement established the Ministerial Council and the MDBC to determine and administer the implementation of ‘works’ and ‘measures’ (which were defined to mean strategies, plans and programmes) concerning the effective planning and management for the equitable, efficient and sustainable use of the water, land and other environmental resources of the MDB. The Ministerial Council was composed of up to three ministers from each jurisdiction (the ministers responsible for water, land and environment), and was chaired by one of the Commonwealth ministers. Each jurisdiction was required to nominate one of its three ministers as responsible for its government’s responses to the Council, and those ministers constituted the quorum for meetings. A resolution of the Council could only be carried by the unanimous vote of all the ministers present who constituted the quorum. The functions of the Council were to determine major policy issues, authorise measures and works, and agree upon

amendments to the Agreement itself, including by the addition of schedules.20 The Council could give directions to the MDBC concerning the performance of its functions. The MDBC constituted under the former MDB Agreement was continued. It was composed of a president (appointed by unanimous vote of Council for a maximum term of five years)21 and two commissioners from each jurisdiction, with expertise [page 151] relevant to water, land and environmental management.22 Each commissioner could be appointed for a maximum term of five years, and could be eligible for re-appointment. Each jurisdiction was responsible for paying its own commissioners, and could remove them at any time. Typically, the commissioners appointed were heads of the relevant government agencies of each contracting government.23 The functions of the MDBC were to advise the Council in relation to the planning, development and management of the resources of the MDB, to assist in developing measures and to implement them, and to give effect to any policy or decision of the Council. The MDBC had the legal powers to contract and acquire, hold and dispose of property for the purpose of exercising its functions.24 It had the power to appoint committees, to employ people (including those employed in the public service of a participating jurisdiction) and to engage consultants. The MDBC appears to have had no separate legal identity,25 but the governments of the participating jurisdictions jointly indemnified the president, commissioners and public service officers for any losses or costs incurred by any of them in the bona fide execution of their powers.26 The decisions of the MDBC could only be made by resolutions carried by a unanimous vote of all the commissioners and the

presiding member, with each jurisdiction’s two commissioners exercising a joint vote.27 MDBC advice to be given to the Ministerial Council could be determined upon the basis of majority rather than a unanimous vote.28 If there was no unanimous vote, then the president and each commissioner could tender separate advice. The Ministerial Council was obliged to appoint a community advisory committee, and could from time to time appoint such other committees as it saw fit.29

Implementation and enforcement of the 1992 MDB Agreement 7.8 Besides the general advisory powers mentioned above, the MDBC had the responsibility for measuring the quantity and quality of the flow of much of the River Murray system. The MDBC was obliged to maintain an effective and uniform system for measuring: the flow of the River Murray and its tributaries and the volume of stored water; all diversions from the River Murray and its tributaries; and the quality of the flowing and stored water in the River Murray and its tributaries. [page 152] The MDBC also had discretionary powers for conducting the surveys and studies necessary to develop the measures for the management of the whole MDB catchment. The MDBC had immediate authority to exercise these powers along the River Murray, but needed to give prior notice to the Council and obtain the prior consent of the contracting government for the exercise of these powers otherwise within the

territories of the states.30 The monitoring and measuring functions could also be performed for the MDBC by a state government, which would supply the data to the MDBC. Notwithstanding the limited terms of its authority under the 1998 MDB Agreement, the MDBC packaged some of these functions and more operational functions into a separate service unit, River Murray Water, which operated separately from the main resource management functions of the MDBC.31 Those resource management functions included assessing works proposals from each contracting government. They were obliged to inform the MDBC of any proposal that may significantly affect the flow, use, control or quality of the water in the River Murray so that the MDBC could assess it and make representations on it to the relevant government before an approval was given.32 The approval of works and measures could be given by the Council (cost in excess of $2m) and the MDBC (cost less than $2m). The authorisation was required to nominate the contracting government(s) responsible for the implementation of the works or measures.33 The responsible contracting governments were required to gain the MDBC’s approval for the design of the work or measure before it was constructed/implemented,34 and the MDBC could give directions about the ongoing construction, operation, maintenance or implementation of the works or measures.35 7.9 Subject to a decision by the Council, the costs of any works or measures, including the costs of operation and maintenance and the costs of the MDBC, were to be shared equally between the contracting governments.36 Any revenues received by a contracting government for the use of works subject to the Agreement were to be paid to the MDBC. The MDBC was accountable to the Council and to each contracting government for the moneys it received.37 It was also required to report annually on its activities and the achievement of its objectives, policies and plans.38

7.10 The description above of the institutional arrangements for the Council and the MDBC reveals a scheme built on consensus and cooperation. How were failures to reach decisions within the MDBC and Council to be addressed, and then how were the decisions of the Council and MDBC to be enforced against the default of a contracting jurisdiction? [page 153] 7.11 Achieving consensus within the MDBC could be problematic when competing state interests interfered, so the Agreement provided for a dispute resolution procedure.39 If the MDBC failed to agree within two months on any motion submitted by a commissioner, that commissioner could refer the matter to the Council. If the Council failed to resolve the matter within six months, any member of the Council could refer it to an arbitrator, and the decision of the arbitrator was deemed to be the decision of the MDBC and be binding on the MDBC, the Council and the contracting governments. This process was not applicable to a question of law, proposals to amend the Agreement, or a resolution on advice to the Council that could be decided by a majority vote of the MDBC. We are not aware of these provisions having been used. 7.12 The enforcement of decisions of the Council and MDBC depended, at a general level, on the fact that the Agreement was a contract and may have been enforceable between the contracting parties — though this may not help much.40 By cl 7 of the Agreement, each contracting government was to ‘provide for or secure the execution and enforcement of the provisions of this Agreement and any Acts approving it’. The approving legislation of each contracting state did provide authority to implement the Agreement, including by way of authorising MDBC activities within its territory.41 It is interesting to note that Clark speaks of

comity between the participating jurisdictions,42 rather than enforcement of contractual obligations. The approving legislation did not express any obligations on citizens or governmental authorities to implement the decisions of the Council or the MDBC. Clark suggested that each contracting state enact a legislative direction that government officers administer existing legislation in a manner consistent with resolutions of the Council or decisions of the MDBC.43 This type of legislative direction may assist with the grant of state government approvals for works, but it may not assist with other obligations such as the payment of money by a state. On the other hand, enforcing the Agreement and any approving legislation against the MDBC was not problematic, as each approving state Act conferred express jurisdiction on its Supreme Court in relation to the MDBC and the commissioners ‘to the same extent as … if the Commission were a body representing the Crown in the right of the State and as if the Commissioners were State officers’.44 7.13 At a more specific level, the Agreement itself provided for ‘Proceedings in default’ if any contracting government failed to do anything in relation to any works or measure or to pay any money to the MDBC that it was obliged to pay.45 In such a situation, the MDBC was to notify the Council and each contracting government and could [page 154] authorise another contracting government, not in default, to make good any failure in relation to the works or measures. Pursuant to the terms of the Agreement, that contracting government could then enter the territory of the defaulting state, make good the default, and take proceedings to recover ‘in a court of competent jurisdiction’ all money reasonably expended in remedying the

failure. The Agreement also provided that a contracting government could pay any outstanding balance owed by a contracting government and recover that amount from the defaulting government as a debt. We are not aware of any instances of the exercise of these provisions.

Critique of the 1992 MDB Agreement 7.14 The 1992 MDB Agreement was not a static instrument. One of its key features was the capacity to amend the Agreement by the adoption of schedules, including in 1998 Sch E — Transferring Water Entitlements and Allocations, and in 2000 Sch F — the Cap on Diversions, which formalised the interim cap adopted by the Ministerial Council in 1995. The capping and trading of water allocations were fundamental aspects of the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’),46 and much of the policy development for the NWI was based on the MDB experience. 7.15 Nevertheless, the development of national water policy surpassed the 1992 MDB Agreement framework. By 2006, there was notable dissatisfaction with the operation of the 1992 MDB Agreement.47 First, there was a belief that the commissioners were too much beholden to their state political masters and that more independent commissioners with noted expertise could better make decisions in the interests of the whole of the MDB. Secondly, it was suggested that the requirement of unanimous consent for most decision making in the MDBC and the Ministerial Council made it too difficult to determine difficult issues. Thirdly, there was a general scepticism about whether the contracting states were properly implementing decisions made. This related, in part, to the limited role of the MDBC — it gathered the information and, with the Council, made decisions, but it relied on contracting governments to implement them. Fourthly, there would have been, or at least there should have been, doubt

about the Commonwealth’s powers to participate fully in the execution of the Agreement. For example, it is doubtful that Commonwealth officers would have had adequate constitutional authority as agents of a contracting government to take action to remedy the failures of a defaulting state government.48 Fifthly, it was becoming apparent that the agenda of national water policy reform elaborated in the NWI had overtaken certain aspects of the Agreement,49 [page 155] particularly in relation to water sharing, the management of environmental water, financial arrangements, and the overprescription of operating rules. It is likely also that the worsening drought in South-Eastern Australia brought on an unprecedented water management crisis that had not been contemplated when the 1992 MDB Agreement was drafted. A new national solution was required. The Water Act 2007 (Cth) highlighted the growing Commonwealth role through the establishment of the Murray-Darling Basin Authority (‘MDBA’) and led to a new MDB Agreement in 2008 with the statesupported amendments to the Water Act 2007 (Cth).

The Murray-Darling Basin Agreement 2008 7.16 Although the initial enactment of the Water Act 2007 (Cth) provided for the establishment of the MDBA, the full reform of the institutional structure — including the abolition of the MDBC — was achieved only by the Water (Amendment) Act 2008 (Cth) and the supporting state legislation that led to the adoption of the 2008 MDB Agreement between all jurisdictions of the MDB.50 Our analysis will, therefore, simply focus on the ultimate arrangements that came into effect on 15 December 2008.51 The Agreement is now Sch 1 to the Water Act.52 By cl 1, its

purpose is essentially the same as the 1992 MDB Agreement; namely, to ‘promote and co-ordinate effective planning and management for the equitable, efficient and sustainable use of water and other natural resources of the [MDB]’. It establishes a newly constituted Ministerial Council and a Basin Officials Committee, and it provides that the Ministerial Council may appoint a Basin Community Committee to advise it. The Agreement also confers additional functions, powers and duties on the MDBA, which is established by the Water Act itself. We will briefly discuss each new institution, noting the significant reforms in comparison to the 1992 MDB Agreement, before explaining the provisions for the amendment and enforcement of the Agreement. The effects of the Agreement’s provisions for the distribution of waters, including in respect of the new topic of ‘critical human needs’, are briefly noted in this chapter. The effects of the Agreement’s Schedule provisions relating to the interstate transfer of water and the MDB Cap are discussed in later chapters.53 The Agreement has differential effect in respect of Queensland and the Australian Capital Territory, but the details of those differences are not discussed here. [page 156]

The Ministerial Council 7.17 The Council membership consists of a minister of each contracting government appointed by the government: Water Act 2007 (Cth) Sch 1, cll 7–8.54 A member ceases to be a member of the Council if the member ceases to be a minister or is replaced by the contracting government. The chair of the Council is the Commonwealth Minister (Sch 1, cl 13(7)). The Council still operates on the basis of consensus; that is, the quorum is all ministers for the contracting governments on issues

relevant to them, and a unanimous vote of those ministers is required to pass a resolution (Sch 1, cl 13). The functions of the Council are to determine outcomes and objectives on major policy issues but only in so far as they are not provided for in the Basin Plan, to determine other matters specified in the Agreement, to approve the annual corporate plans and budgets prepared by the MDBA, and to agree upon amendments to the Agreement (Sch 1, cl 9). The Council may delegate its functions and powers to the Officials Committee or the MDBA and may require a report of each of them; it may also give directions to the Officials Committee but not to the MDBA (Sch 1, cll 10–12). In comparative terms, the new Council is a much smaller body than its predecessor, but its essential decision-making process is effectively the same. At first glance, its core functions seem similar too; it can agree amendments to the Agreement, including by amending or making schedules. However, two particular points suggest that its powers are somewhat curtailed. First, the Council can only agree policy within the constraints defined by the Basin Plan, and that will be approved by the Commonwealth Minister, albeit after consultation with the Ministerial Council: see chapter 15 at [15.100]. Further, the provisions of the Agreement Part XII, Distribution of Waters, appear to provide that the Ministerial Council will continue to determine the distribution of waters between the states, albeit within the limits of an environmentally sustainable level of take to be determined by the Basin Plan. The Ministerial Council’s role in determining the distribution of waters within the limits of the Basin Plan is further defined by the Act, which provides that the Basin Plan will set the limits for the operation of the Tier 1, 2 and 3 water-sharing arrangements. At the same time, the Basin Plan is to be prepared having regard to the agreement of the Commonwealth and the states that critical human needs are the highest-priority water use for communities who are dependent on Basin water resources (Part 2A, s 86A).

Secondly, amendments to the Agreement by the Ministerial Council only take effect upon the registration of a legislative instrument under Commonwealth law, which is subject to Commonwealth parliamentary disallowance (s 18C and Sch 1, cl 5). Thus, there is a national oversight of amendments to the 2008 MDB Agreement. [page 157]

The Basin Officials Committee 7.18 The Agreement establishes the Committee and defines its status, powers and duties, though provisions of the Water Act 2007 (Cth) may also define its role (Sch 1, cl 17). The membership of the Committee consists of a chair and five other members, each of whom is appointed by and represents a different contracting government for the period specified in the instrument of appointment (Sch 1, cll 18, 20 and 22). The chair is appointed by the Commonwealth (Sch 1, cl 19). Also, the chief executive and the chair of the MDBA may attend meetings, but they are not entitled to vote (Sch 1, cl 25). The functions of the Committee are to advise the Council in relation to its role on major policy issues but only in so far as they are not provided for in the Basin Plan, to give effect to any policy or decision of the Council, and to be responsible for high-level decision making in relation to river operations, including by setting outcomes and objectives to be achieved by the MDBA (Sch 1, cl 26). The Committee may also be given functions by the Act, such as advising the MDBA in the preparation of the Basin Plan (s 201). The decision-making processes of the Committee vary depending on whether the issues being addressed, especially in relation to critical human needs water, involve Queensland and the Australian Capital Territory (Sch 1, cl 27). Thus, the quorum for a meeting is a member from each contracting government if

issues relevant to that government are being considered. Each member has one vote, and a resolution will only be passed by a unanimous vote of the quorum unless the members agree, by a unanimous vote, that the resolution may be carried by a majority vote. The general exception to the normal requirement of a unanimous vote is that advice to the Ministerial Council on issues of major policy may be determined by majority vote (Sch 1, cl 26(3)). In such a case, each member may tender separate advice to the Council. In comparative terms, the Committee has replaced the MDBC, but it has a smaller membership (one member per jurisdiction rather than two) and a reduced set of functions. In particular, the Committee has a limited role in designing or implementing works and measures.55 Measures are still defined as strategies, plans and programs but exclude river operations (Sch 1, cl 2). The term ‘river operations’ is defined to mean the construction, operation, maintenance and renewal of works along the River Murray, executing the provisions for the distribution of waters, and the provision of other services to state contracting governments and other persons (Sch 1, cl 2). These functions have now been conferred on the MDBA. However, the Committee has a newly defined role of setting high-level outcomes and objectives for the MDBA in the management of river operations and being consulted on.

The Murray-Darling Basin Authority 7.19 The MDBA is established by Part 9 of the Water Act 2007 (Cth) and not the 2008 MDB Agreement. It is constituted as a body corporate, has its own staff of Commonwealth [page 158] public servants and may be assisted by other Commonwealth and

state public servants.56 The MDBA itself has a small membership of independent experts and is generally accountable to the Commonwealth Minister for functions conferred on it by the Water Act, especially in relation to the preparation and administration of the Basin Plan: see chapter 15 at [15.99] ff. However, the MDBA also performs functions conferred by the 2008 MDB Agreement in relation to the Ministerial Council and the Basin Officials Committee and, importantly, the management of the River Murray operations (s 18E). In performing these MDB Agreement functions, the MDBA is not subject to direction by the Commonwealth Minister (s 175(2)(e)). The membership comprises a chief executive, a chair and four other members — all of them appointed by the Governor-General on the basis of their high level of expertise in a field relevant to the MDBA’s functions (ss 171 and 176–178). Members of the governing bodies of interest advocacy groups are not eligible for appointment to the MDBA (s 178(2) and (4)). The chief executive’s position is full-time, and the other members must all be part-time positions. The terms of appointment are defined in the instrument of appointment, but must not exceed four years or, with reappointments, a total of eight years. A member’s term may only be terminated by the Governor-General for specified reasons (s 189). The remuneration is to be determined by the Commonwealth Remuneration Tribunal or, failing such a determination, by regulations. The MDBA’s procedures are defined by the Act (ss 193–194). The quorum for a meeting is four members, and resolutions are decided by majority vote, though the person presiding at the meeting has both a deliberative and casting vote. 7.20 The functions57 conferred by the 2008 MDB Agreement on the MDBA are the provision of advice and administrative support to the Council and the Committee, the functions of investigating, measuring and monitoring the water and other natural resources of the MDB, and managing the construction, operation and

maintenance of works. In relation to works, the MDBA manages the River Murray operation assets (‘RMO assets’) that are owned and controlled jointly by the contracting governments, including the Commonwealth (Sch 1, cl 54). The management of the RMO assets is spelt out in several documents: the ‘Asset Agreement’, which provides for the accounting of and reporting on the assets (Sch 1, cl 55); the ‘Asset Management Plan’, which provides for the management, maintenance and renewal of the assets and is approved by the Council on the recommendation of the Committee (Sch 1, cl 53); and an annual corporate plan, which authorises the construction, improvement and replacement of works or implementation of any measures (Sch 1, cl 56). An annual corporate plan requires the approval of the Council on the advice of the Committee (Sch 1, cl 34). However, the MDBA alone may authorise smaller works [page 159] or measures. Consistently with the RMO assets being owned and controlled by the contracting governments, a corporate plan for new works or measures must nominate which contracting government shall be responsible for the works or measures. In performing its functions, the MDBA is required to give effect to these various documents and to the Committee’s statement of outcomes and objectives for river operations (Sch 1, cl 29(2)). Further, the MDBA must not exercise any of its river operations functions ‘in a manner that has the potential to have a material effect on State water entitlements’, unless it does so in accordance with a decision of the Committee (Sch 1, cl 30). The costs of the MDBA performing its functions are to be met by

the contracting governments in the proportions determined by the Ministerial Council (Sch 1, cl 72).58 However, there is a basic provision that the Commonwealth will contribute one quarter of the costs and the state contracting governments will share the remaining costs subject to a Council determination of the share to be paid by Queensland and the Australian Capital Territory. In simple comparative terms, the MDBA has taken over from the MDBC two key tasks: the task of measuring and monitoring of the whole of the MDB and, importantly, the management of the RMO assets and the ‘operation’ of the River Murray. However, in performing this latter task, it is still subject to the oversight of the Council and the Committee. While those bodies still operate predominantly by consensus, the MDBA operates on the basis of majority decision making.

The Basin Community Committee 7.21 The Basin Community Committee is established by the MDBA and its primary statutory functions are to advise the MDBA, especially on the preparation of the Basin Plan (s 202). However, the Community Committee also has the function of advising the Ministerial Council at its request (s 18F and Sch 1, cl 16). While the Community Committee is subject to direction by the MDBA in relation to the performance of its Water Act functions, it is not so subject in relation to the provision of advice to the Ministerial Council (s 205(1A)). The membership of the Community Committee comprises a chair and up to 16 other persons with relevant expertise or interest, comprising at least one MDBA member, at least eight representatives of water users, and an individual with expertise in relation to ‘indigenous matters relevant to the Basin’s water resources’ (s 202). Interestingly, a ‘water user’ is defined to include a person who is engaged in environmental water management. The MDBA must call for expressions of interest in appointment to the Community Committee. Further, to be eligible for

appointment, a person must have been nominated by the Ministerial Council (ss 202(6) and 204(2)), supposedly upon review of the expressions of interest. Any member may be the chair. [page 160] In comparative terms, there is much greater statutory definition of the role of the Basin Community Committee than was the case with the former Community Advisory Committee.

Amendment of the Agreement 7.22 As mentioned above, the Ministerial Council may amend the 2008 MDB Agreement by unanimous consent, but only with the political oversight of the Commonwealth Parliament achieved by the Commonwealth recording the amendment in a disallowable legislative instrument (s 18C and Sch 1, cl 5). The Commonwealth has a duty to register such a legislative instrument as soon as practicable after the amendment has been agreed by the Council. The amendment may take the form of an amendment to or addition of a Schedule to the MDB Agreement itself (Sch 1, cl 56(6)). The MDBA may also add to the Agreement by making protocols to give effect to its schedules. Such protocols are a Commonwealth legislative instrument, but are not subject to disallowance (s 18D).

Enforcement of the Agreement 7.23 As with the 1992 Agreement, the 2008 Agreement is a contract between the governments and is enforceable in that regard (s 18A).59 The provisions of the 2008 MDB Agreement for the proceedings to be followed in the event of a default by any contracting government in relation to any works or measures or the payment of any money are quite similar to those in the 1992

MDB Agreement: Sch 1, cl 86 and see [7.13] above. The only significant difference is that the administration of the procedures now falls to the MDBA in consultation with the Officials Committee and after giving notice to the Ministerial Council. 7.24 The parties have also, similarly, promised ‘so far as its jurisdiction extends and so far as it may be necessary … [to] provide for or secure the execution and enforcement of the provisions of this Agreement’ (Sch 1, cl 6). Each contracting state has provided in different ways for the implementation of the 2008 Agreement.60 The clearest provisions are in New South Wales, which has legislated to authorise the carrying out of any works, operations and measures under the Agreement.61 It has also authorised the New South [page 161] Wales Minister to appoint a member of the Basin Officials Committee and to represent the state under the Agreement.62 The Minister must also table in the New South Wales Parliament a copy of each annual report of the MDBA and of each amendment to the Agreement — after it takes effect.63 The Water Act 2007 (Cth) also confers on the MDBA the functions, powers and duties it has generally under the Water Act for the purposes of performing its functions under the MDB Agreement in the Australian Capital Territory and the referring states (s 18E). However, the enforcement powers of the Water Act, some of which may be exercised by the MDBA, do not apply to the implementation of Part 1A (approving the Agreement as Sch 1) or Part 2A (provision of water for critical human needs) (ss 136– 137). 7.25 Thus, the basic legal provisions for the enforcement of the 2008 MDB Agreement are quite similar to those of the 1992

Agreement. In terms of achieving the implementation of the Agreement, the principal difference between the 1992 and 2008 Agreements lies in the fact that the MDBA has been established as an independent and expert body to manage the gathering of information about the water and other natural resources of the MDB and to manage the operation of the River Murray. Because of the constitutional arrangements, the authority of the MDBA rests now on Commonwealth law as well as state law: see chapter 5 at [5.72] ff. On the other hand, enforcing the Agreement against the MDBA has also become a matter of Commonwealth law because of the express obligation of the MDBA to comply with the Agreement.64 Any person with affected interests could take administrative law proceedings in the Federal Court to enforce this obligation. Following the making of the Basin Plan in 2012, an instrument that can also be enforced as a legislative instrument,65 the MDB jurisdictions made two new interstate agreements: one aimed at securing the the Commonwealth-led MDB water reforms, including the Basin Plan, by provision of Commonwealth financial support to the states,66 and another to agree on the arrangements for implementation.67 The Agreements add a contractual layer to the statutory obligations of the Basin Plan.

The Snowy Mountains Scheme 7.26 The Snowy Mountains Scheme (‘the Scheme’) is a very large engineering project to manage the alpine waters of the Snowy Mountains for the purposes, principally, of hydro-electricity generation and irrigation supply. A key aspect of the original scheme [page 162]

was the diversion inland of almost the entire flow of the upper reaches of the eastwards-flowing Snowy River to the westwardsflowing Murray and Murrumbidgee Rivers. Developed in the aftermath of World War II,68 the Scheme was originally authorised by the enactment of the Snowy Mountains Hydro-Electric Power Act 1949 (Cth) in purported exercise of the Commonwealth’s defence power. The Commonwealth asserted its power to overcome disputes with New South Wales and Victoria over the principal allocation of waters to hydro-electricity or irrigation, with the Commonwealth preferring a scheme designed primarily for energy generation.69 That initial Act defined the Snowy Mountains Area (‘the Area’), established the Snowy Mountains Hydro-Electricity Authority and authorised it to generate and supply electricity. For those purposes, the Act gave the Authority the powers to undertake works to collect, divert, store and release water. Any water released by the Authority was to be discharged into a lake, river or stream in the Area. In 1957, the Commonwealth, New South Wales and Victoria made an agreement on the management of the Scheme for hydroelectricity and irrigation purposes. In 1958, that agreement was incorporated by statutory amendment as a Schedule to the Snowy Mountains Hydro-Electric Power Act 1949 (Cth). The amended Act, with the support of complementary state legislation approving the Agreement,70 gave a more secure constitutional foundation to the Authority’s activities and established the Snowy Mountains Council as an intergovernmental body to oversee the Authority’s activities. In particular, the Council had the functions of controlling the operation and maintenance of the permanent works of the Authority and advising on the coordination of the Authority’s works with the states’ works. The Snowy Scheme was eventually completed in 1974, having been funded principally by the Commonwealth Government.71 7.27 In 1993, the Commonwealth, New South Wales and Victorian Governments agreed to begin the process of

corporatising the Authority as part of national competition policy reform.72 In 1997, each jurisdiction enacted corporatisation legislation in similar, but not the same, terms (the Corporatisation Acts).73 The legislation provided that each of the three governments were to become shareholders in the new Snowy Hydro Ltd, a company incorporated under the Corporations Law, with New South Wales holding 58 per cent of the equity, Victoria 29 per cent and the Commonwealth 13 per cent.74 New South Wales and Victoria have subsequently legislated to require the disposal of each government’s share in Snowy Hydro Ltd to receive the approval of the respective [page 163] state parliaments.75 The Corporatisation Acts repealed the Snowy Mountains Hydro-Electricity Acts of the Commonwealth and the states, abolishing the Authority and the Council from the ‘corporatisation date’ — the date on which the Commonwealth proclaimed its repeals.76 When that date occurred on 28 June 2002, all the assets, liabilities and undertakings of the Authority relating to the management of the water resources were transferred to Snowy Hydro Ltd, which commenced to operate subject to all general laws of the states and Commonwealth and not as agents of the Crown or a public authority.77 7.28 A crucial issue for the transition to the corporatised Snowy Hydro was the arrangements for the management of the water resources. At the time of the decision to corporatise the Authority in 1997, approximately half of the mountain flow to the Murray and Murrumbidgee Rivers came from the Snowy River.78 Victoria and New South Wales shared the flow down the Murray. The Scheme provided enhanced flows down both the Murray and the Murrumbidgee, increasing both the availability and reliability of irrigation water supplies.79 This resulted in both Victoria and New

South Wales issuing in a higher level of water entitlements. The Scheme also had significant environmental impacts on numerous mountain rivers, besides the Snowy River, from both reduced and increased flows. A major issue to be addressed in the legal arrangements to be put in place for the corporatisation of Snowy Hydro was environmental flows, especially an increase in the flows down the Snowy River. The adjustment of environmental flows had significant ramifications not just for the generation of hydro-electricity but also for the adjustment of water entitlements on the Murray and Murrumbidgee Rivers. 7.29 The New South Wales Corporatisation Act provided that Snowy Hydro Ltd was to operate under a water licence to be issued by the New South Wales Water Administration Ministerial Corporation. The licence confers the continued right to collect, divert, store and use surface water, and the obligation to release the majority of the water in accordance with arrangements specified in the licence.80 The licence was granted for an initial period of 75 years, with a renewal option for a further 50 years. The entire administration of the licence (including its review, variation, transfer or revocation) is under the New South Wales Corporatisation Act rather than the Water Management Act 2000 (NSW). However, Snowy Hydro only became entitled to the issue of the water licence on the corporatisation date. [page 164] The New South Wales Corporatisation Act also required a public water inquiry to be held ‘with respect to environmental issues arising from the current pattern of water flows in rivers’ (‘the Inquiry’),81 which was conducted in 1998.82 Although the Inquiry was constituted under the New South Wales Act, the New South Wales Minister was bound to seek the approval of the relevant Commonwealth and Victorian Ministers to the terms of reference,

and the Inquiry was permitted to consider the impacts of the Scheme beyond the designated area, which related to the Scheme Area. Further, it was the duty of the New South Wales Minister to publish the report of the Inquiry and to reach agreement with the relevant Victorian Minister on the outcomes.83 That agreement was to provide for the release of water for environmental reasons on the issue of the Snowy Hydro water licence, and the licence was to give effect to that agreement.84 Thus, the corporatisation of Snowy Hydro and the issue of the water licence were dependent on New South Wales and Victoria agreeing on the water licence conditions and on the Commonwealth Government agreeing to proclaim the repeal of the old Commonwealth legislation. 7.30 The three governments reached a heads of agreement on 6 December 2000, with the agreement of South Australia also, and concluded Snowy Water Inquiry Outcomes Implementation Deed, 3 June 2002.85 The Snowy Water Licence was issued in May 2002 and was amended after review in 2011.86 The purpose of the Deed and implementing agreements was to secure improved environmental flows, including for the Snowy and Murray Rivers, largely on the basis of securing water savings by public expenditure on irrigation efficiency works in the Murray and Murrumbidgee valleys. One of the implementing agreements involved an amendment to the MDB Agreement, which was achieved in 2003 by the addition of the current (2008 MDB Agreement) Sch F, ‘Effect of the Snowy Scheme’.87 Schedule F provides for agreed releases of irrigation and environmental water, for the accounting of those releases and for the transfer by New South Wales and Victoria of water savings and water entitlements to ‘environmental entitlements’, being the categories of environmental water provisions under the Water Management Act 2000 (NSW) and the Water Act 1989 (Vic). The MDB Agreement Sch F also secures the rights of South Australia and Victoria to the performance of the water licence conditions by New South Wales and Snowy Hydro.

[page 165] Thus, the operation of the Snowy Scheme is subject to the MDB Agreement 2008 pursuant to the Water Act 2007 (Cth). In return, the Basin Plan to be prepared under that Act was not inconsistent with the water licence issued to Snowy Hydro.88 7.31 The second reading speech of the Commonwealth Minister proposing the amendment to the MDB Agreement contains an interesting summary of the key propositions underlying the corporatisation of Snowy Hydro. Throughout the corporatisation process, the Commonwealth has insisted on a number of important safeguards. First, allocations of water to environmental entitlements must not adversely impact on irrigators. Second, the allocations must not adversely impact on the rights and interests of the state of South Australia. Third, the commercial viability of the Snowy Scheme will be maintained. Fourth, water for environmental flows will be sourced principally from verified water savings. Lastly, water for environmental flows in the Snowy and Murray cannot be consumed — they must flow through the river systems to the sea.

Considerable progress has been made in the restoration of environmental flows to the Snowy River.89 By 2015, the target of 212 GL of water entitlements had been acquired and infrastructure works undertaken to provide more flexibility in release strategies. However, a drying climate has seen less water delivered to environmental flows in a system that is still dominated by delivery of summer irrigation flows.

Other interstate arrangements The New South Wales–Queensland Border Rivers Agreement 7.32 New South Wales and Queensland have agreed to the joint management of four rivers (or parts of them) that constitute part of the border between the two states: the Severn, Dumaresq,

Macintyre and Barwon Rivers. The Agreement, as first made in 1946 and amendments in 1968, 1993, and 2001, has been ratified by implementing legislation in each state (the Border Rivers Acts).90 The Queensland version of the Act provides that the Agreement continues to be binding on Queensland while it is so on New South Wales.91 The New South Wales version contains a different provision stating that the operation of the Water Management Act 2000 (NSW) is subject to the Agreement, and there are provisions of the Water Management Act 2000 (NSW) that, arguably, make the Agreement [page 166] legally binding.92 As well, the provisions of the Border Rivers Acts create binding legal effect for regulations and decisions made by the Commission under the legislation.93 The Agreement provides for the joint management of the water resources of the Border Rivers by a joint commission. It has powers to approve the construction of works, to direct the maintenance and operation of the works, to gauge river flows and discharges of water from works, and to give directions governing diversions of water according to determinations of water availability. A ‘controlling authority’ of each state assists with the implementation of the Agreement within each state. The costs of administering and implementing the Agreement are shared. The water resources subject to the Agreement are shared equally unless the controlling authorities of each party agree, with the consent of the Commission, to a variation of the shares. The diversion and use of each party’s share of the waters are determined under each party’s own law.94 The 1993 amendment to the Agreement added the management of associated groundwater to the Border Rivers management regime.95 The 2001 amendment to the Agreement permitted the adoption of carryover of unused water in the allocation system. By the ‘New South

Wales–Queensland Border Rivers Intergovernmental Agreement 2008’, the two states update the bargain to provide for the NWI and the 2008 MDB Agreement in respect of a number of management issues; namely, environmental flow management, formalising water access arrangements and accounting, adequate flows downstream, and interstate trading of water entitlements. The Agreement is to be implemented through the states’ respective water planning processes, with legislative amendment as necessary.

The South Australia–Victoria Groundwater Border Agreement 7.33 South Australia and Victoria have agreed to ‘the cooperative management and equitable sharing’ of the groundwater resources near their mutual border in order ‘to guard against the undue depletion or degradation’ of those resources.96 The Agreement made in 1985, and amendments made in 2005, have been ‘approved’ by Groundwater (Border Agreement) Act 1985 (SA and Vic) (‘the Border Agreement Acts’), to which the Agreements are schedules.97 The meaning of ‘groundwater’ is the same as in each state’s principal water resources legislation.98 The Agreement operates in respect of all land and all the groundwater resources of the ‘Designated Area’ defined by the Agreement. [page 167] The scheme of the Agreement is that each state’s water resource management agency, defined to be the respective ministers, manages the groundwater resources within its own territory and under its own water resources legislation but in accordance with limits established under the Agreement. The Agreement establishes a joint ‘review committee’ to

administer the various limits on the construction of bores and the extraction of groundwater within the Designated Area: the permissible distance from the border; the permissible annual volumes of extraction from a particular zone or aquifer within a zone, and the allowable annual volume of extraction from a particular sub-zone or aquifer within a subzone; and the permissible potentiometric surface lowering and permissible salinity. These limits are set by agreement of the respective ministers on the recommendation of the review committee with five-yearly reviews. The committee can also set ‘periods of restriction’ during which resource management decisions by either state’s management agency must first be considered and, if a decision is made contrary to the committee’s recommendation, the management agency making such a decision must inform the other state’s responsible minister of the decision. The committee also reports annually to the minister of each state. The legal force for the implementation of the Agreement comes from each state’s own water resources legislation, which makes that legislation subject to the operation of the Border Agreement Acts.99

The Ord River Irrigation Scheme 7.34 The Ord River Irrigation Scheme is located mostly within Western Australia, though part of the proposed irrigation land extends into the Northern Territory. Western Australia and the Commonwealth made an agreement in 1968 about the development of the irrigation scheme, with the Commonwealth providing finance for the irrigation development. The Commonwealth’s execution and performance of the Agreement was authorised by the Western Australia Agreement (Ord River Irrigation) Act 1968 (Cth), which was amended in 1980 to extend

financing to include crop handling and processing facilities. This legislation is no longer in force. The scheme does involve transboundary management of water resources. The catchment of the Ord River is mostly located within Western Australia. The entire irrigation reservoir, Lake Argyle, and all of the land developed for stage 1 of the irrigation scheme, are located within Western Australia. However, much of the land to be developed for stage 2 of the scheme is within the Keep River catchment, which extends from Western Australia to the Northern Territory.100 The water for stage 2 will be supplied from the Ord [page 168] by an inter-basin transfer. However, there was no provision in the Commonwealth’s Ord River Irrigation Act that addressed transboundary water resource management issues, and there appears to be no other specific statute addressing such issues. Rather, such issues are managed cooperatively by Western Australia and the Northern Territory under their own general water legislation.

The Lake Eyre Basin Intergovernmental Agreement 7.35 The Lake Eyre Basin covers a large area of the inland parts of Queensland, South Australia and the Northern Territory, and intrudes into a small area of New South Wales. Lake Eyre lies in South Australia and is fed mostly from a number of rivers that flow from Queensland and the Northern Territory into South Australia. The Basin is cooperatively managed under the Lake Eyre Basin Intergovernmental Agreement.101 The Commonwealth, Queensland and South Australia made an initial agreement in 2000 for the joint and cooperative management of the water and related natural resources of the Basin, which was expressed in Part IX not to come into effect until

it was ratified by the parliaments of the states party to it. The Agreement was a schedule to ratifying legislation enacted by the Commonwealth, Queensland and South Australia in 2001.102 The model of the ratifying legislation also authorises and requires the minister and any governmental agencies to do anything reasonably necessary to ensure the performance and observance of the Agreement. The Agreement provides in Part XII that New South Wales and the Northern Territory may become parties to the Agreement. In 2004, the Northern Territory became a party to an amended version of the Agreement and, in 2007, the parties made a second amending agreement to extend the boundaries of the area covered by the original Agreement. Again, Part IX provides that the amending Agreements will not come into effect until the parliaments of South Australia, Queensland and the Northern Territory ratify them. Queensland enacted ratifying legislation in 2004 and 2007103 and South Australia in 2008,104 and the Northern Territory enacted the Lake Eyre Basin Intergovernmental Agreement Act 2009 (NT) to approve and ratify the Agreement and authorise and require its performance. 7.36 The terms of the Agreement are a model for interstate arrangements. It sets out a statement of purpose and objectives, guiding principles and the roles of the parties. The Agreement constitutes a ‘ministerial forum’ consisting of one minister from each party, with the Commonwealth Minister as the chair. Resolutions will only be carried by unanimous vote. The ministerial forum is to ‘be responsible for the implementation of the agreement’, and to ensure that there is satisfactory access to community advice. [page 169] For this purpose the ministerial forum has appointed a

community advisory committee. The forum can also seek scientific and technical advice. The principle management tools are the authority of the ministerial forum to develop or adopt policies and strategies, and it may also adopt management plans prepared by the states. Cost sharing is to be agreed between the parties. The ministerial forum may also review the Agreement and the conditions of the watercourses and catchments, and approve amendments to the Agreement. Ultimately, however, each state continues to have responsibility for the development and implementation of policy for the implementation of its own water and related natural resources legislation within the Basin. In doing so, it ‘will, to the fullest extent that it is able, comply with this Agreement and any applicable Policies and Strategies developed or adopted under it’.105 It is also agreed that each state will use its best endeavours to secure the passage of legislation for the purpose of conforming with and implementing the Agreement and the policies and strategies made under it. In that regard, the South Australian Natural Resources Management Act is, by s 4, subject to the Lake Eyre Basin Intergovernmental Agreement.

The Great Artesian Basin 7.37 The Great Artesian Basin was described in chapter 1. It underlies the states of Queensland, New South Wales and South Australia, as well as a small part of the Northern Territory. There is no statutory framework for interstate management, but a nonstatutory strategy was agreed in 2000 and the Great Artesian Basin Coordinating Committee was established in 2004.106 A new nonstatutory strategic management plan is being developed in 2017.

Canberra water supply 7.38 The Canberra Water Supply (Googong Dam) Act 1974 (Cth) secures to ‘Australia’ (the Commonwealth) the flow of the

Queanbeyan River in New South Wales for the purposes of supplying water to the Australian Capital Territory. The Act recites the surrender by New South Wales in the Seat of Government Acceptance Act 1909 (Cth) of the land for the Australian Capital Territory and of certain water resources within New South Wales. The Googong Dam Act thus defines the ‘Googong Dam Area’ and authorises the construction of the dam and other works to convey the water to Canberra. The Executive of the Australian Capital Territory is authorised to perform these functions on behalf of the Commonwealth. The Australian Capital Territory Water Management Legislation Amendment Act 2013 (Cth) amends the Water Act 2007 (Cth) to require that the area of the Googong Dam be treated as though it is located in the Australian Capital Territory and not in New South Wales.

1.

N Kelly, ‘A Bridge? The Troubled History of Inter-State Water Resources and Constitutional Limitations on State Water Use’ (2007) 30(3) UNSW Law Journal 641; J Williams and A Webster, ‘Section 100 and State Water Rights’ (2010) 21 PLR 267 at 281 ff.

2. 3.

See chapter 8 at [8.7]–[8.9]. I Renard, ‘The River Murray Question: Part III — New Doctrines for Old Problems’ (1971–72) 8 MULR 650.

4. 5.

Ibid at 660. Ibid, pp 650–658. And see B H Thompson, J D Leshy, and R H Abrams, Legal Control of Water Resources: Cases and Materials, 5th edn, Thomson Reuters, St Paul, Minnesota, 2013, 5th edn, Chapter 8A(3): ‘Equitable Apportionment’.

6. 7.

Kelly, 2007, p 652. A Webster, ‘Sharing water from transboundary rivers in Australia — an interstate common law?’ (2015) 39 MULR 263.

8. 9.

Ibid at 304. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565.

10.

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J; Western Australia v Commonwealth (1995) 183 CLR 373 at 436. See generally P Hank, P Keyzer and J Clarke, Australian Constitutional Law: Materials and Commentary, 7th edn, LexisNexis Butterworths, Sydney, 2004, [3.4.1] ff. United Nations, Audiovisual Library of International Law, Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, Introductory Note by Professor Stephen McCaffrey. Australia is not a party to

11.

this Convention: see United Nations Treaty Collection data for this Convention. 12.

13. 14.

15. 16.

17. 18.

B H Thompson Jr, ‘Defragging: Overcoming fragmentation in United States Water Governance’, Chapter 7 in J Gray, C Holley and R Rayfuse, Trans-jurisdictional Water Law and Governance, Earthscan, 2016. The case is Florida v Georgia No 22O142 ORG, docketed 4 October 2013. See, generally, Renard, 1971–72, especially at pp 675 ff, and Webster, 2015, at pp 290 ff. S Clark, ‘The River Murray Question: Part 1 — Colonial Days’ (1971–72) 8 MULR 11; ‘Part 2’ (1971) 8 MULR 215; S Clark, ‘The River Murray Waters Agreement: Peace in our Time?’ (1983) 9 Adel L Rev 108; S Clark, ‘The Murray-Darling Basin: Divided Power, Co-operative Solutions?’ (2003) 22 Australian Resources and Energy Law Journal 67. See also J Scanlon, ‘A hundred years of negotiations with no end in sight: Where is the Murray Darling Basin Initiative leading us?’ (2006) 23 EPLJ 386. S Clark, ‘The Murray-Darling Basin: Divided Power, Co-operative Solutions?’ (2003) 22 Australian Resources and Energy Law Journal 67 at 67. Murray-Darling Basin Act 1993 (Cth), containing the Agreement as Sch 1. The preamble explains the history of the 1992 Agreement. See also the state legislation: Murray-Darling Basin Act 1992 (NSW), 1993 (SA) and 1993 (Vic). Queensland’s membership was formalised by the making of Sch D to the 1992 Agreement and by the enactment of the Murray-Darling Basin Act 1996 (Qld).

19.

The Australian Capital Territory membership was formalised by the adoption of Sch H in 2006 and the enactment of the Murray-Darling Basin Agreement Act 2007 (ACT). Murray-Darling Basin Act 1993 (Cth), containing the Agreement as Sch 1; see also the state legislation: Murray-Darling Basin Act 1992 (NSW), 1993 (SA), 1993 (Vic) and 1996 (Qld) and the Murray-Darling Basin Agreement Act 2007 (ACT). The complementary legislation was agreed to by cll 5 and 6 of the MDB Agreement.

20. 21.

1992 MDB Agreement, cl 9. 1992 MDB Agreement, cll 16, 18, 20, 21 and 26.

22. 23.

1992 MDB Agreement, cll 16, 18, 20, 21 and 26. Scanlon, 2006, p 405.

24. 25.

1992 MDB Agreement, cl 17. Clark comments adversely on this lack of corporate legal status: ‘The MurrayDarling Basin: Divided Power, Co-operative Solutions?’ (2003) 22 Australian Resources and Energy Law Journal 67 at 74.

26. 27.

1992 MDB Agreement, cll 36–38. 1992 MDB Agreement, cl 32.

28. 29.

1992 MDB Agreement, cl 17(3). 1992 MDB Agreement, cl 14.

30. 31.

1992 MDB Agreement, cll 39–43. The functions of River Murray Water are described on the MDBC website: and follow link to ‘River Murray Water’.

32.

1992 MDB Agreement, cll 46–47.

33. 34.

1992 MDB Agreement, cl 50. 1992 MDB Agreement, cll 52–53.

35. 36.

1992 MDB Agreement, cl 55. 1992 MDB Agreement, cl 65.

37. 38.

1992 MDB Agreement, cll 71 and 81. 1992 MDB Agreement, cl 84.

39. 40.

1992 MDB Agreement, cl 133. A Gardner, ‘Federal Intergovernmental Co-operation on Environmental Management: A Comparison of Developments in Australia and Canada’ (1994) 11 EPLJ 104, especially at 122–123.

41. 42.

For example, Murray-Darling Basin Act 1992 (NSW) Part 3. S Clark, ‘The Murray-Darling Basin: Divided Power, Co-operative Solutions?’ (2003) 22 Australian Resources and Energy Law Journal 67 at s 4.1.

43. 44.

Ibid at 78. For example, Murray-Darling Basin Act 1992 (NSW) s 27.

45. 46.

1992 MDB Agreement, Part IX. A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): .

47.

The following points are drawn from S Clark, ‘The Murray-Darling Basin: Divided Power, Co-operative Solutions?’ (2003) 22 Australian Resources and Energy Law Journal 67 at 67–80 and J Scanlon, ‘A hundred years of negotiations with no end in sight: Where is the Murray Darling Basin Initiative leading us?’ (2006) 23 EPLJ 386 at 386–410. See, generally, C Saunders, ‘Intergovernmental Agreements and the Executive Power’ (2005) 16 PLR 294.

48. 49.

50.

51.

52.

M Dyson and W Martin, ‘Murray-Darling Basin Agreement Consistency Review Issues Analysis’, a report for the MDBC, September 2006, available at the website of the MDBC: and follow links to ‘About the MDBC’, ‘The Murray-Darling Basin Agreement’, and then link to the named report; and see conclusions at p 34 ff. Water (Commonwealth Powers) Act 2008 (NSW), and Acts by the same name in Queensland, South Australia and Victoria. The Victorian Act amended the MurrayDarling Basin Act 1993 (Vic) to provide for the carrying out of the new 2008 MDB Agreement. The Water Act 2007 (Cth) operates in the Australian Capital Territory by virtue of Commonwealth Constitution ss 122 (the territories power) and 51; see s 9A(4), inserted in 2008. Water Amendment Act 2008 (Cth) s 2. The Act was assented to on 8 December 2008, Commonwealth of Australia, Gazette, Government Notices, GN 50 17/12/2008, and came into operation on 15 December 2008 by Proclamation of the Governor General made on 12 December 2008, Federal Register of Legislative Instruments, F2008L04656. Water Act 2007 (Cth) s 18A.

53.

54. 55. 56. 57. 58.

Chapter 16 at [16.122] ff discusses the MDB Cap in the former Sch F/new Sch E and the provision of water for ‘critical human needs’ in the proposed Basin Plan. Chapter 25 discusses the provisions of Sch D (formerly Sch E) for the interstate transfer of water. All subsequent references in this section are to this Act, unless otherwise specified. Water Act 2007 (Cth) Sch 1, cl 34, by advising on the preparation of the annual corporate plan of the MDBA: see below at [7.20]. As to staffing of the MDBA, see Water Act 2007 (Cth) Part 9, Division 4. Water Act 2007 (Cth) Sch 1, cl 29(1) and Parts VII and VIII of the 2008 MDB Agreement. See also generally Part IX.

59. 60.

See notes to definition of ‘Agreement’. Water (Commonwealth Powers) Act 2008 (NSW), and Acts by the same name in Queensland, South Australia and Victoria. The NSW Act referred powers to the Commonwealth, inserted Chapter 8, Part 3A, of the Water Management Act 2000 and repealed the Murray-Darling Basin Act 1992 (NSW). The Victorian Act amends the Murray-Darling Basin Act 1993 (Vic) to provide for the carrying out of the new 2008 MDB Agreement, and the Water Act 1989 (Vic) s 6 provides every power, function, authority and duty of the minister, the authority and the tribunal under this Act must be construed subject to the MDB Agreement. The Natural Resources Management Act 2004 (SA) provides for consistency between the operation of that Act and the MDB Agreement: see ss 4, 87 and 89, for example. The Water Act 2000 (Qld) Chapter 8, Part 6 provides only for the tabling of the annual reports of the MDBA, and there seems to be no provision for the MDBA to operate in Queensland.

61. 62.

Water Management Act 2000 (NSW) s 386D. Water Management Act 2000 (NSW) ss 386B and 386C.

63. 64.

Water Management Act 2000 (NSW) s 386F. Water Act 2007 (Cth) s 18E(2).

65. 66.

See chapter 17. Intergovernmental Agreement on Implementing Water Reform in the Murray Darling Basin, June 2013.

67.

Murray-Darling Basin Plan — Implementation Agreement, 7 August 2013, available on the website of the Murray-Darling Basin Authority: , and follow links to ‘Publications’ and ‘Basin Plan Implementation Agreement’. S Gale, ‘The Snowy Water Inquiry: Food, Power, Politics and the Environment’ in (1999) 37(3) Australian Geographical Studies 301.

68. 69. 70. 71. 72.

B Collis, SNOWY — the Making of Modern Australia, Hodder & Stoughton, Sydney, 1990 (7th edn, 2015, available on Amazon.com). See also chapter 5 at [5.47]. Snowy Mountains Hydro-electric Agreements Act 1958 (NSW and Vic). Gale, 1999, p 301. The Hon Mr Whelan, Second Reading Speech on the Snowy Hydro Corporatisation Bill 1997 (NSW), Parliament of New South Wales, Hansard, Legislative Assembly, 29 May 1997.

73. 74.

Snowy Hydro Corporatisation Act 1997 (Cth, NSW, Vic). Whelan, 29 May 1997.

75.

Snowy Hydro Corporatisation (Parliamentary Approval) Act 2006 (Vic) and Snowy Hydro Corporatisation Act 1997 (NSW) s 5A. The ‘corporatisation date’ was defined as the date on which the Snowy Mountains Hydro Electric Power Act 1949 (Cth) was repealed by the Commonwealth Corporatisation Act: Snowy Hydro Corporatisation Act 1997 (NSW) s 4. See also Snowy Hydro Corporatisation Act 1997 (Cth) ss 5, 59 and 61, and Commonwealth Legislative Instrument S 216 26/06/02.

76.

77. 78.

Snowy Hydro Corporatisation Acts 1997 (Cth, NSW and Vic) s 8. Gale, 1999, p 306.

79. 80.

Ibid, p 306. Snowy Hydro Corporatisation Act 1997 (NSW) Part 5.

81. 82.

Snowy Hydro Corporatisation Act 1997 (NSW) Part 4, especially s 20. Gale, 1999, p 311.

83. 84.

Snowy Hydro Corporatisation Act 1997 (NSW) s 21. Snowy Hydro Corporatisation Act 1997 (NSW) s 23(3).

85.

New South Wales Government, Department of Primary Industries, Water, ‘Snowy Hydro Limited’, at . Ibid. See also the review: New South Wales Government, Office of Water, ‘Returning environmental flows to the Snowy River: An overview of water recovery, management and delivery of increased flows’, 2010.

86.

87.

88. 89.

90.

Murray-Darling Basin Amendment Act 2003 (Cth) and reciprocal state legislation. See also the second reading speech in the Commonwealth Parliament on 19 September 2002, Hansard, House of Representatives, p 6778. Water Act 2007 (Cth) s 21(6), preserving the terms of the water licence issued to Snowy Hydro under s 22 of the Snowy Hydro Corporatisation Act 1997 (NSW). NSW Government, Department of Primary Industries, Water, ‘Snowy Water Initiative’, ‘Strategy for Snowy River Increased Flows 2016–17: Revised’, at . New South Wales–Queensland Border Rivers Act 1946 (Qld) and 1947 (NSW). The original Agreement and each of the Amending Agreements are schedules to the Acts.

91. 92.

New South Wales–Queensland Border Rivers Act 1946 (Qld) s 5. New South Wales Border Rivers Act 1947 (NSW) s 24. Water Management Act 2000 (NSW) ss 6(3)(a) and 9, which require that the State Water Management Outcomes Plan must be consistent with any intergovernmental agreements and that the administrators of the Act must exercise their functions to give effect to the SWMOP.

93.

New South Wales–Queensland Border Rivers Act 1946 (Qld) and 1947 (NSW) ss 7

94. 95. 96.

and 10. And see s 4 definition of ‘Commission’ (NSW) and ‘the commission’ (Qld). The Agreement Parts V and VI in each of the Border Rivers Acts. The Agreement Part VA in each of the Border Rivers Acts.

97.

Preamble to Border Groundwaters Agreement 1985, Sch 2 to the Groundwater (Border Agreement) Act 1985 (SA and Vic). Groundwater (Border Agreement) Act 1985 (SA and Vic) ss 5 and 5A.

98. 99.

See chapter 1 at [1.35] and [1.37]. Natural Resources Management Act 2004 (SA) s 4(2). Water Act 1989 (Vic) s 6.

100. Northern Territory Government, Environment Protection Authority, Environmental Assessments, ‘Ord River Irrigation Scheme — Stage 2 development’: and follow links to ‘Environmental Assessment’, ‘Projects assessed’ and ‘Ord River Irrigation Scheme — Stage 2’. 101. See the website for the Agreement: , and follow links to ‘Collaborative management’ and ‘Lake Eyre Basin Intergovernmental Agreement’. 102. Lake Eyre Basin Intergovernmental Agreement Act 2001 (Cth) and Lake Eyre Basin (Intergovernmental Agreement) Act 2001 (SA). Lake Eyre Basin Agreement Act 2001 (Qld). 103. Water and Other Legislation Amendment Acts 2004 and 2007 (Qld) Part 4 of each Act. 104. Lake Eyre Basin (Intergovernmental Agreement) (Ratification of Amendments) Amendment Act 2008. 105. Lake Eyre Basin Intergovernmental Agreement, Part 4.9. 106. Australian Government, Department of Agriculture and Water Resources, website titled ‘Great Artesian Basin’: and the Great Artesian Basin Coordinating Committee: . See also P-L Tan and J Quiggin, ‘Sustainable Management of the Great Artesian Basin: An Analysis Based on Law and Environmental Economics’ (2004) 9(2) Australasian Journal of Natural Resources Law and Policy 255.

[page 171]

Part 3 THE NATURE OF WATER ACCESS RIGHTS This part considers the nature of water access rights: explaining their common law characteristics; examining the effect of statutory declarations vesting water rights in the states and territories; ascertaining the degree to which common law rights to water have been displaced by statute; examining the degree to which rights continue to be exercisable without a licence by landholders and others; examining the nature, and in particular the proprietary nature, of contemporary water access entitlements; and considering Indigenous access to water in the context of native title.

[page 173]

8 COMMON LAW RIGHTS TO WATER 8.1 The fundamental nature of water has determined the regimes applied to surface water and ground water by the common law. Water has a critical significance to society, a migratory nature which is not restrained by legal or jurisdictional boundaries, and, it was thought with respect to ground water, an uncertain path. These elements have all played a role in the establishment of the common law regimes. 8.2 The climatic and geographic features of Australia as distinct from those that prevailed in England did not, however, play a role in the common law regimes applied in Australia. Whatever the suitability or unsuitability of the common law regimes to Australian conditions or contemporary times, they are clearly applicable, subject to legislation, in Australia. In Gartner v Kidman (1961–62) 108 CLR 12 at 23 Windeyer J in the High Court summed up the century of acceptance of the English common law rules. He observed that the common law rules were ‘very old’ and derived from England, where ‘men have been settled for centuries’. But he went on: The conditions of settlement, of climate and of geography in which this body of customary law developed are very different from those prevailing in many parts of Australia … But it is beyond doubt that these rules are a part, and an important part, of the common law that Australia has inherited.

8.3 The Supreme Court of New South Wales, which state at that

time included the area of the Northern Territory1 and Queensland,2 applied the principles of the English common law to the very different circumstances of Australia as early as 1853.3 The South Australia Supreme Court followed4 soon after in 1867, and the other jurisdictions in Australia thereafter.5 [page 174] That understanding of the applicability in Australia of the common law regimes relating to water was recently restated by the High Court in ICM Agriculture v Commonwealth [2009] HCA 51.6

Surface water in defined channels: the right of natural flow incidental to riparian land ownership Rejected absolute ownership 8.4 The migratory nature of water and its critical significance to society led the common law to an early rejection of the possibility of absolute ownership of surface water:7 Water flowing in a stream, it is well settled by the law of England, is publici juris. By the Roman law, running water, light, and air, were considered as some of those things which were res communes, and which were defined, things, the property of which belongs to no person, but the use to all.

To like effect were Blackstone’s Commentaries on the laws of England:8 There are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had … such (among others) are the elements of light, air, and water.

As early as 1682 it had been declared that a regime of common use should be applied to running water ‘from the nature of water,

which naturally descends, it is always current, et aut invenit aut facit viam’ and from necessity, ‘which is necessary for the preservation of the Commonwealth’.9

The general principle: a correlative right to the natural flow 8.5 Surface water presented less problems than ground water in the devising of a regime by the common law because uncertainties of origin and pattern of flow were absent. As Lord Chelmsford observed in Chasemore v Richards [1843–60] All ER 77 at 82, ‘there is no difficulty in determining the rights of the different proprietors to the usufruct of the water in a running stream’. Surface water is unlike ‘water percolating through underground strata, which has no certain source and no defined limit, but oozes through the soil in every direction in which the rain penetrates’. The common law devised the riparian regime, a regime which contemplates correlative rights of use [page 175] vesting in owners of riparian land. Such a regime could accommodate the migratory nature of water and recognise the critical significance of water to riparian landowners. The problems of regulation and judicial intervention presented by uncertainties of origin and pattern dictated the limitation that the rights of the riparian owner pertain only to water flowing in a known and defined channel.10 Riparian rights are accordingly not generally applicable to underground water, although if underground water is found to flow in a known and defined channel then the riparian regime is applicable.11 8.6 The classic exposition of the riparian regime devised by the common law is that of Lord Wensleydale in Chasemore v Richards [1843–60] All ER 77 at 82. He identified the source of the right as a

natural incident of the ownership of the riparian land, and described the nature of the right: He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction.

Riparian rights with respect to flow, quantity and quality regulate the use and pollution of water, and include the right to have the water leave without obstruction.

Foundation of riparian rights in ownership of riparian land 8.7 In Chasemore v Richards [1843–60] All ER 77 at 85, Lord Wensleydale identified the source of riparian rights in the ownership of riparian land: the right to the enjoyment of a natural stream of water on the surface ex jure naturae belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself.

The foundation of the riparian landowner’s right is the access to the watercourse: the right is to ‘the water to which the situation of his property gives him access’.12 ‘It is by virtue of that right of access that he obtains his water rights.’13 ‘The rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river.’14 Possession may be joint, but a licensee, not being in possession, cannot maintain an action.15 [page 176] 8.8 The requirement of riparian land ownership represents a pragmatic limitation of the conflicting rights to use water, which acknowledges: the paramountcy of the rights of the riparian landowner over the

land comprising the banks of the watercourse, including freedom from trespass by others who seek to use the water; and the likely historic use in preindustrial and early industrial society of the water arising from that control over the banks. It was adopted in the context of the significant number of rivers and streams crisscrossing England, possessed of a temperate climate, such that there would not be many parts of the country at a great distance from a surface water supply. The pragmatic requirement does not allow for rights of nonriparian landowners, including the public, and for rights to use water on non-riparian land.16 Moreover, uses must be connected with the riparian tenement: Jones v Kingborough (1950) 82 CLR 282 at 324.17 Those limitations are enough to render the riparian regime completely unsuitable to control water use in contemporary Australia. 8.9 Australian governments have addressed those limitations in part by reserving riparian lands, the banks, to the Crown. Riparian rights will not attach to land which does not adjoin the watercourse, and accordingly if there is an intervening strip of land there can be no riparian rights.18 The reservation of strips of riparian land by the Crown in grants will deny the acquisition of riparian rights by grantees.

Watercourse A natural watercourse 8.10 Since riparian rights only attach to a ‘natural watercourse’, the understanding of the meaning of ‘natural watercourse’ is crucial. It is a question ‘of fact not lightly to be interfered with’,19 although a conclusion can only be reached upon ‘an explanation of the legal meaning of the term’.20 A watercourse must have an identifiable channel, bed and banks21 and possess the qualities of a river or stream. It must be distinguished from a valley or depression where water gathers:22

[page 177] As distinguished from water of a casual and temporary character, a watercourse is a flow of water usually flowing in a certain direction, and by a regular channel, having a bed, banks and sides, and possessing that unity of character by which the flow on one man’s land can be identified with that on the land of his neighbours.23

In Gartner v Kidman (1962) 108 CLR 12 the High Court overturned the trial judge’s finding that a watercourse existed. The High Court concluded that the area was merely ‘a part of the natural course of floodwaters’,24 a basin formed in the land where water lodged. Although Windeyer J did emphasise that, if there was a watercourse, merely because a watercourse adopted a wider channel in times of flood did not deny that it remained subject to riparian rights: … surface waters do not include the waters of a stream or river which when periodically swollen in time of flood flows in a wider channel than ordinarily, the super-abundant waters following the general course of the stream but flowing on lands outside its ordinary bed. Such ‘flood channels’ are to be regarded as if they were part of the alveus of the stream. The law of natural watercourses applies, not that of surface waters.25

A right of drainage arising from the right of natural flow cannot attach to land upon which the watercourse has not yet commenced: ‘the watercourse begins at the point where the channel begins and the current commences to flow in reasonably well-defined banks.’26

Seasonal flows 8.11 The riparian regime remains applicable if water flows in such a channel even if, during a dry period of the year, there is no flow at all.27 Riparian rights were held applicable to a watercourse where on average it was dry for about three months of the year.28 Water flows must not, however, be merely occasional, but ‘must be sufficiently regular, frequent, or usual to afford a predominant or at least a recognised characteristic’.29

[page 178] The common law understanding of ‘watercourse’ has been applied in recent cases to interpreting the definition of ‘watercourse’ in state water legislation. Those cases have confirmed that occasional flows are not sufficient to constitute a watercourse. Four or so flash flood events a year overtopping the low banks which contained 99 per cent of the flow of a watercourse were not sufficient to constitute the broader area, which was subject to the flash floods, a watercourse.30 Similarly, the Supreme Court of South Australia overturned a ruling that very limited water flows were sufficient to constitute a watercourse. The court held that flows which only occurred after rain, and which ceased after three to four hours, were not sufficient to constitute a watercourse.31

Artificial channels 8.12 Since riparian rights arise ex jure naturae, they do not attach to artificial channels.32 Windeyer JJ declared in Gartner v Kidman (1962) 108 CLR 12 in the High Court of Australia that: The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription.33

Rights with respect to an artificial channel must depend on arrangements which under the general law give rise to the acquisition of proprietary rights: It may be the result of an easement created by grant, or by implication of law, or by prescription where the law allows easements to be acquired by prescription; it may depend upon statute; it may be the result of contract.34

Underground flows 8.13 Underground flows can be subject to riparian rights, but only if a watercourse with a known and defined channel and an

identifiable bed and banks is shown to exist. Demonstration of the flow of water through a porous aquifer does not suffice in the absence of the existence of the other elements of a watercourse.35 The onus of proof to establish that a channel is known and defined is upon the person claiming riparian rights.36 [page 179]

Right to take and use 8.14 Surface water was early classified as res communes.37 The assumption underlying the concept of res communes is that of an inexhaustible supply, a notion at variance with nineteenthcentury economic development, and when not addressed brings about ‘the Tragedy of the Commons’. If all are allowed unlimited access to the resource, the resource will be exhausted and it may be difficult to restore. The response of the common law was to introduce limits upon the rights of use of flowing water. 8.15 Two approaches were considered, that of prior appropriation and that of reasonable use. In 1833 the approaches were argued in the court of King’s Bench in a dispute between two mill owners in Mason v Hill (1833) 110 ER 692. The court rejected the suggestion that the authorities considered ‘that the first occupier or first person who chooses to appropriate, a natural stream to a useful purpose, has a title against the owner of land below, and may deprive him of the benefit of the natural flow of water’.38 The court did not consider that the prior appropriator could ‘take away from the owner of the land below, one of its natural advantages, which is capable of being applied to profitable purposes, and generally increases the fertility of the soil, even when unapplied; and deprive him of it all together by anticipating him in its application to a useful purpose’.39 8.16 Drawing heavily upon Mason v Hill, Baron Parke in Embrey v

Owen (1851) 6 Exch 353 explained the nature of the rights of use of water which arose in any river or stream: The right to have the stream flow in its natural state without diminution or alteration is an incident to the property in the land to which it passes; but flowing water is publici juris, not in the sense that it is bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. This right to the benefit and advantage of water flowing past his land, is not an absolute and exclusive right to the flow of all the water in its natural state … but it is a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence.

8.17 ‘The right to have the stream flow in its natural state without diminution or alteration’ contemplates that upstream landowners might generally make only ‘ordinary use of the water … for instance, to the reasonable use of the water for his domestic [page 180] purposes and for his cattle’,40 and for such purposes may exhaust the supply. ‘Domestic purposes’ has been described as water supplied to satisfy the needs or perform the services which, ‘according to the ordinary habits of civilised life, are commonly satisfied and performed in people’s homes’,41 and obviously includes drinking, eating and cleaning: ad lavandum et potandum.42 It has been said to possibly include water power,43 based on comments in Ormerod v Todmorden Joint Stock Mill Co Ltd (1883) 11 QBD 155,44 but there is no holding in any case to such effect. Moreover, such a ruling would destroy the balance of correlative rights which the concept of ordinary use contemplates. 8.18 The uses must be connected with the riparian tenement:

Jones v Kingborough (1950) 82 CLR 282 at 324. Merely because water is used for a commercial purpose does not necessarily entail the conclusion that the use is not ordinary.45 But irrigation of commercial crops in Australia is always likely be regarded as an extraordinary use. In Williams v Cahill (11 March 1964, WA Supreme Court),46 it was held that irrigation of a four-and-a-halfacre pear orchard in the Bridgetown area in South West Western Australia was an extraordinary use. The court relied on the dicta of Dixon J and Latham CJ in the High Court decision of Jones v Kingborough (1950) 82 CLR 282.47 It was observed: … the use of water of a stream for irrigation is use for an extraordinary purpose in Bridgetown just as it is in England.

The court issued an injunction against such use and awarded damages for loss suffered. A distinction between watering a garden for domestic purposes and irrigating a crop must accordingly be recognised. If the former characterisation is adopted, the use will be permitted as an ordinary use, otherwise irrigation of a cultivated crop is likely to be regarded as an extraordinary use which cannot lawfully bring about any sensible diminishment in flow and accordingly will not be permitted. A riparian owner may take water for extraordinary purposes, but only if the use is reasonable, is connected with the riparian tenement and does not bring about any ‘sensible diminishment’ of the flow. The taking of water for municipal water supplies,48 water storage projects or hydro-electric generation are not permitted because they cannot be regarded as connected with the riparian tenement and because they bring [page 181] about a ‘sensible diminishment’ of the flow. The taking of water for railway engines49 was not permitted because the use could not be regarded as connected with the riparian tenement, even if it did

not bring about a ‘sensible diminishment’ of the flow. The taking of water for a colliery was not permitted where the only connection to riparian land was by means of the railway line that connected the colliery to a bridge crossing the river.50 8.19 Irrigation on the riparian land may be permitted if there is no ‘sensible diminishment’,51 but if it entails significant evaporation or the loss of large quantities of water, it is likely not to be permitted.52 Lord Cairns explained in Swindon Waterworks Co v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697 at 704: … the water may be used and may be diverted for a time by the other owner to the purpose of irrigation. That may well be done; the exhaustion of the water which may thereby take place may be so inconsiderable as not to form the subject of complaint by the low owner, and the water may be restored after the object of irrigation is answered, in a volume substantially equal to that in which it passed before.

In the warm and dry climate of Australia, any irrigation of commercial crops, extraordinary use, is likely to entail the ‘sensible diminishment’ of the flow and not be permitted as a riparian right. Mining or petroleum activities which bring about a ‘sensible diminishment’ of flow will likewise be restrained.53 The determination of what is a reasonable use entails consideration of all of the circumstances surrounding the use of the water by the riparian owners, including the degree of diminishment and the connection with the riparian land. It is an indivisible test that must be met.54 As Lord Cairns explained, when considering if a manufacturing purpose was a reasonable use, it would ‘depend, at all events in some degree, on the magnitude of the stream from which the deduction was made for this purpose over and above the ordinary use of the water’.55 The diversion of water into a swamp, such that only a little is used, is not a reasonable use, but rather its exhaustion and dissipation.56 8.20 An exception to the limitations on the use of water by a riparian landowner arises in the absence of a lower riparian proprietor. All of the water may be taken and used

[page 182] because the ‘use of the water does not interfere with the right of any other riparian proprietor’.57 8.21 The right to take and use water arises at the point where the water passes the riparian owner’s land. It is not a right which can be exercised at a higher point of the watercourse to thereby defeat the rights of riparian landowners who would otherwise have access to the water first.58 The foundation of the riparian landowner’s right is the access to the watercourse: ‘the water to which the situation of his property gives him access.’59 8.22 Riparian rights to take or use water cannot readily take account of interests other than those of riparian landowners, such as those of the public. In Jones v Municipality of Kingborough (1950) 82 CLR, the High Court of Australia issued an injunction to restrain the diversion of water from the North West Bay River for municipal water supply. The effect of the diversion would have been the ‘sensible diminishment’ of flow to the downstream riparian landowners. The use of the water was not, of course, connected with the riparian tenement. Moreover, the municipality was not a riparian landowner. However, even if the municipality had been a riparian landowner, the use it proposed would have exceeded the ambit of the right conferred at common law. The common law protected the correlative rights of riparian landowners to the ordinary use of surface water, but made no provision for any wider or public interest. The regime was incompatible with any water projects involving any ‘sensible’ diminishment or disturbance of the natural flow of surface water. Such a result was perhaps suited to the temperate climates of England and the nature of English society in the nineteenth century. It was unsuited to the settlement of Australia.

Right to natural quality of water: free from pollution

8.23 The right of the riparian owner, described by Lord Chelmsford in Chasemore v Richards [1843–60] All ER 77 at 85, ‘to have [the water] come to him in its natural state, in flow, quantity and quality’ protects the water from pollution. Actionable activities include: fouling the water with mining effluent,60 sewage,61 by wool washing62 and by soil sediment from logging operations;63 [page 183] raising the salt content and irrigation;64 changing the character of dewatering mining activities for distillery use;65 and raising its temperature so condensing.66

thereby making water unusable for the water from soft to hard in and thereby rendering it unsuitable that it is no longer suitable for

Breach of riparian rights is actionable without proof of damage and enforceable by injunction.67 Pollution may also be actionable as a nuisance or under the form of liability formerly known as the rule in Rylands v Fletcher (1868) LR 3 HL 330, subject to proof of actual damage. Liability in nuisance requires alteration of the character or quality of the waters in the stream. Damages must not be too remote.68 Absolute or strict liability under the rule in Rylands v Fletcher arose where material likely to do mischief was brought onto land, escaped from it to another’s land and did foreseeable69 damage by pollution.70 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520,71 the High Court integrated the rule in Rylands v Fletcher into the Australian law of nuisance and negligence, including the requirement of reasonably foreseeable risk of damage.72

Right to dam, divert and drain 8.24 The general rights of the riparian owner were described by Lord Chelmsford in Chasemore v Richards [1843–60] All ER 77 at 85. A riparian owner ‘has the right to have [the water] come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction’. The rights of a riparian owner to dam, divert and drain are the corollaries of those principles. A riparian owner may dam, divert or drain the waters of a stream provided that there is no interference with the natural flow and thus no breach of the correlative rights of the upstream and downstream riparian owners.

Dam 8.25 A weir may legitimately be constructed across the bed of a stream so as to prevent erosion if it does not interfere with the natural flow.73 But a dam must not raise the level [page 184] of water upstream74 or diminish the flow downstream.75 A dam can only bring about a minor interference with water flow. If a dam built by a lower riparian owner causes water to back up over higher land of another riparian owner, the latter is entitled to abate the nuisance by destroying it.76 If a stream is not flowing in dry Australian summer conditions, the erection of a dam cannot breach riparian rights because there can be no sensible diminishment of flow.77

Diversion 8.26 A diversion from the defined channel cannot of course be for an extraordinary purpose which results in the sensible diminishment or alteration of the character of the water.78 The proscription of diversion includes diversion at source upon the

land where the water rises at a spring, if it flows immediately into a known and defined channel.79 If the water rising from the spring does not flow immediately in a known and defined channel, even though it eventually reaches such a channel, it is governed by the regime governing diffused surface water and accordingly may be diverted and used without regard for the rights of riparian owners.80 The rights of a riparian owner include the right to restrain the diversion of a watercourse so that riparian land no longer adjoins the watercourse,81 as where a waterbed was reclaimed and works were executed on the land reclaimed.

Drain 8.27 The right of a riparian owner is to have water ‘go from his land without obstruction’. A downstream obstruction cannot be erected so as to prevent drainage from land upstream or to flood upstream land.82 But nor can the owner of upstream land pipe a natural stream so as to concentrate the flow so that in a storm the rush of water is much greater than when the stream flows in a natural channel. The court held [page 185] that liability would attach under the rule in Rylands v Fletcher whether or not there was a cause of action in nuisance.83 8.28 Liability may arise from the construction of dams or obstructions apart from riparian rights. Non-riparian owners may bring action if the natural flow of a river is obstructed and damage results to non-riparian land.84 The High Court in Thorpes Ltd v Grant Pastoral Co Pty [1954] 92 CLR 317 imposed liability where earth works were constructed to hold back flood waters, with the result that the water flow was so concentrated as to increase its velocity, causing turbulence and scouring and the deposit of

considerable quantities of sand, silt and debris on another’s land. The High Court unanimously imposed liability, expressly disclaiming the relevance of whether the plaintiff’s land was riparian or not.

Acquisition by grant or prescription 8.29 Riparian rights arise ex jure naturae, in the nature of things, and accordingly are conveyed upon a grant without express provision.85 A contrary intention may be expressed, and accordingly the waters may be reserved. An 1823 Crown grant of lands on Botany Bay which reserved such waters as might be required for public purposes was construed by the Privy Council as a reservation of riparian rights to the use of the water, which denied any claim to compensation when the waters were diverted by the Crown.86 8.30 Because riparian rights are incidents of ownership of the riparian land, they are only transferable subject to the conditions and limitations applicable to the ownership of the riparian land.87 A transferee of riparian rights must rely upon the transferor to protect the rights from interference.88 A riparian landowner cannot grant rights to use [page 186] water on non-riparian land such that there is any diminution or alteration of the natural flow.89 It has been explained:90 The grant of a right to flowing water by a riparian owner is valid only against himself and cannot confer rights as against others. The law as to flowing water is part of the common law of England; but it only exists as between riparian owners; it does not extend to those whose lands do not abut on streams and rivers.

In the result, riparian rights are not readily transferable or divisible.

But if there is no diminution or alteration of the natural flow occasioned by the use of water by a non-riparian landowner under a grant from the riparian owner, as in Kinset v Great Eastern Railway Co (1884) 27 ChD 122,91 no breach of riparian rights will be found. As Cotton LJ explained: Undoubtedly [the grantee] has not the rights of a riparian proprietor, which to some extent do interfere with the enjoyment of the lower riparian proprietors. But he is not exercising such rights. If he was attempting to do so his doing so would give the right of action, but the mere fact that he has accepted the grant, if it purports to give him that which he cannot have, in my opinion would not give as against him or the grantor a right of action to the lower riparian owner.

Lindley LJ emphasised that the licensee or grantee of a riparian owner can take water from a watercourse provided there is no breach of the rights of any other riparian owner.92 8.31 A right to take or use water from a defined channel, or to obstruct its flow or to pollute, may be acquired by prescription as an easement.93 Prescription must be established against the other riparian owners whose rights are adversely affected. All prescription presupposes a grant, and accordingly prescription with respect to riparian rights can only be maintained by a riparian landowner. A non-riparian landowner cannot acquire riparian rights by prescription.94 The acquisition of a right to pollute by prescription cannot be sustained where the defendant in an action on account of the pollution denies that any pollution has taken place.95 [page 187]

Actionable without proof of damage 8.32 The breach of the rights of a riparian owner is an infringement of proprietary rights and is actionable without proof of damage, and entitles the riparian owner to damages, a declaration or an injunction:96

Anyone who fouls this water infringes his right of property, and, therefore, he can maintain an action without proving that he has been actually damaged …97

and: every person injured in any degree, however unascertainable or perceptible, may maintain an action for obstruction without proof of actual damage.98

The ability to maintain an action for infringement of riparian rights without proof of actual damage has been strongly criticised99 because it could preclude beneficial uses of water without any injury to any other party being shown: Unfortunately, the common law has never developed machinery for adjusting proprietary interests in land by reference to the relative social or economic benefits conferred by the use of that land. Title to land is protected absolutely.100

If the breach does not occasion any substantial damage, an injunction may be postponed to allow time for the method of operations to be changed so that they cease to be in breach.101 [page 188]

Ground water — non-regulation ‘Rule of capture’: right to take and use 8.33 The regime applicable at common law to ground water which does not flow or percolate in a known and defined channel is the ‘rule of capture’, a ‘laissez-faire’ approach. In the leading case, Acton v Blundell (1843) 152 ER 1223, a mill owner suffered a severe disruption of underground water supplies because of coal mining by the defendant. Tindal CJ denied any remedy: The person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the grounds of an action.

8.34 In the course of his reasons, the Chief Justice explained that no other regime could be applied where the origin and path of the underground water was unknown. The House of Lords affirmed his reasoning in Chasemore v Richards (1859) 11 ER 140 (HL), where Lord Cranworth observed that the court should not interfere where ‘it is a process of nature not apparent’. Any other approach ‘would require the evidence of scientific men to state whether or not there has been an interruption, and whether or not there had been an injury’. The House of Lords refused to interfere with the appropriation of water for the municipal water supply, resulting in severe depletion of the water flowing in a stream fed by percolating water. There was no limitation on the right to appropriate the water, and certainly none related to connection with the overlying land, reasonable use, or limits on the degree of depletion, as imposed upon riparian rights. Lord Wensleydale acquiesced in the judgment but would have preferred a limitation of reasonable use:102 according to the rule of reason and law ‘sic utere tuo ut alienum non laedas’ it seems right to hold, that he ought to exercise his right in a reasonable manner, with as little injury to his neighbour’s rights as may be.103

Scepticism as to the state of science at the time and the uncertainty of the origin and path of underground water caused the common law to reject any regulation of the resource. It also coincided with the conservative political temper of the times in the avoidance of regulation. The initial applicability of the common law rule of capture of underground water has always been accepted in Australia: see ICM Agriculture v Commonwealth [2009] HCA 51;104 Ashworth v Victoria [2003] VSC 194 at [75] and [86]. [page 189] If underground water flows in a known and defined channel

and constitutes a watercourse, then the riparian regime is applicable, as the rationale indicated by Lord Cranworth suggests.

No cause of action against appropriation 8.35 A landowner has no cause of action against the appropriation of ground water from beneath his land by means of a well off the land, no matter how long the landowner has enjoyed the use of the water nor the motive of the appropriator. In Bradford Corp v Pickles [1895] AC 587,105 the water was suggested to have been appropriated, thereby causing an interruption in the town’s water supply, by a landowner in order to induce the other, the municipal corporation, to purchase the land. Lord Halsbury declared that the motive was irrelevant: no use of property which would be illegal if due to a proper motive can become illegal because it is prompted by the motive which is improper or even malicious.106

The right to capture water includes the right to dam or divert its flow in order to facilitate appropriation. The appropriation of ground water may include the removal of soluble matter without the commission of any actionable wrong,107 but the removal of insoluble material may be actionable as a breach of the right of support.108 In Xuereb v Viola CH 217 [1990] Aust Torts Reports 67,667, the New South Wales Supreme Court affirmed the principles declared in Acton v Blundell and Bradford Corp v Pickles, confirming the right of a landowner to appropriate and drain off the underground water that flows beneath the land, even though it reduces the inflow to a neighbour’s dam. Furthermore, Giles J affirmed that no action lies for withdrawal of support where the appropriation of water has led to the settlement of the neighbour’s land and cracking in the dam wall. Recent English authorities would suggest no action lies on account of the appropriation of underground water for breach of the right of support even if it leads to the settlement of buildings upon the land.109

8.36 Non-regulation of ground water by the common law presents few obstacles to the development of contemporary water supply or development projects. In Kennedy v Minister of Works (1970) WAR 102, the owners of Millstream Station were denied a remedy upon the appropriation of underground water which fed the Millstream Spring in order to provide water supply to the towns of Dampier and Karratha. [page 190] Although no action will generally lie for the appropriation of ground water from beneath land by means of a well off the land, an action will lie for the appropriation of such water which results in the diminution of flow in a watercourse. The riparian regime can be invoked to protect the watercourse from a violation of riparian rights, even though the violation is brought about by the appropriation of ground water.110

Right to natural quality of water: free from pollution 8.37 The common law distinguished between rights with respect to the use of ground water and its pollution. No right may attach on account of its appropriation, but its pollution was actionable at the suit of the surface owner as a nuisance or under the rule in Rylands v Fletcher (1868) LR3 HL 330.111 Lindley LJ declared in Ballard v Tomlinson (1885) 29 ChD 115 at 126–127 (CA): The right to foul water is not the same as the right to get it; and in my opinion does not depend on the same principles. Prima facie every man has a right to get from his own land water which is naturally found there, but it frequently happens that he cannot do this without diminishing his neighbour’s supply. In such a case the neighbour must submit to the inconvenience.

By contrast: But prima facie no man has a right to use his own land in such a way as to be a nuisance to his neighbour, and whether the nuisance is effected by sending filth on to his neighbour’s land, or by putting poisonous matter on his own land and

allowing it to escape on his neighbour’s land, or whether the nuisance is effected by poisoning the air which his neighbour breathes, or the water which he drinks, appears to me wholly immaterial … So if a man chooses to poison his own well he must take care not to poison waters which other persons have a right to use as much as himself.

The absence of absolute ownership of the ground water by the landowner would not deny a remedy: To hold the contrary on the ground that the water is not their property until they get it, and that it is poisoned before they get it, is to take an inadequate view of the subject, and to overlook the fact that the law of nuisance is not based exclusively on rights of property. Underground water which supplies a well may not be the property of the owner of the well, but he has a right to take and use such water, and upon principle he appears to me to have a right of action against those who poison what he has a right to get.

The pollution of a well was caused by a drain constructed by the defendant used to remove effluent from a printing works. The Court of Appeal restrained the pollution. [page 191] 8.38 The harm occasioned by the pollution must be reasonably foreseeable. In 1994 the House of Lords refused to find liability where solvent from a tannery leaked into ground water over a long period of time. The court held that the damage was not reasonably foreseeable, regarding it as ‘historic pollution’.112 The High Court of Australia accepted such limitation of Ballard v Tomlinson.113 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the High Court integrated the rule in Rylands v Fletcher into the Australian law of nuisance and negligence, including the requirement of reasonable foreseeability.114

Rejection of absolute ownership 8.39 In the result, the owner of land has an ‘absolute’ right to ‘capture’ water from underground only if the water is permitted by neighbouring landowners so to flow, but no right to prevent

abstraction to the point of exhaustion by such landowners. The right is not enforceable against neighbouring landowners and others who have access to the water, who can reduce its value. The right is essentially defeasible by the activities of others against whom there is no action. It possesses only a limited exclusivity, because of the nature of migratory underground water, shared with neighbouring landowners. The right of capture is protected only in so far as an action is conferred in the event of pollution. The common law did not recognise ownership of underground water, if ‘ownership’ consisted in the exclusive, enforceable and secure right to use, exploit, profit, control and manage. See ICM Agriculture v Commonwealth [2009] HCA 51 at [55]–[57] per French CJ, Gummow and Crennan JJ and at [109]–[114] per Hayne, Kiefel and Bell JJ.

Right in the surface landowner 8.40 The right to capture underground water is in the surface landowner. The right may be transferred by the surface landowner by transferring the water or the strata in which the water is found. Water is conveyed upon a grant of land without express provision.115 A contrary intention may be expressed, and accordingly the waters may be reserved. A transfer of water must include the right to access the surface to appropriate the water, because the right must be exercised on the overlying land. In that sense, the right to capture underground water is inextricably linked with ownership of the surface. [page 192]

Diffused surface water ‘Rule of capture’: right to take and use 8.41

The ‘distinction between water flowing in a definite

channel, and water, whether above or underground, not flowing in a stream at all, but either draining off the surface of the land or oozing through the underground soil in varying quantities and in uncertain directions depending upon the variations of the atmosphere’ is well settled.116 The law respecting such diffused surface water was established in the mid-nineteenth century. The critical element was the uncertainty and unknown pattern of the flow, which determined that the common law courts would not regulate access to the water. 8.42 Acton v Blundell (1843) 13 LJ Ex 289 established the principle of the ‘rule of capture’ with respect to underground water. In 1855, in Rawstrom v Taylor (1855) 11 Ex 369; 156 ER 873, the Exchequer Chamber held that there was no action that might preclude a landowner, for the purpose of draining his land, diverting water away from another’s reservoir, where the water rose in boggy ground and thereafter flowed over the surface of the land in no definite channel. If allowed to flow and not diverted, it would find its way eventually into an old watercourse. The plaintiff was a mill owner who relied on the water supply from the reservoir to power the mills. Baron Parke, subsequently Lord Wensleydale, declared:117 This is the case of common surface water rising out of springy or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiff’s mill. This water having no defined course, and its supply been merely casual, the defendant is entitled to get rid of it in any way he pleases.

8.43 The decision of the court in Rawstrom v Taylor was followed shortly thereafter in Broadbent v Ramsbottom (1856) 11 Ex 602; 156 ER 971. A landowner was held not liable to a mill owner for the diversion of surface water, flowing in no defined channel, prior to it entering a brook on which the mill was located. The water rose in a pond, a swamp and wells that overflowed. The water was diverted both to drain the land and to collect the water for other uses. Baron Alderson explained that ‘this water, both that which overflows and that which sinks in, belongs absolutely to the

“landowner” on whose land it arises, and is not affected by any right of the’ mill owner. The court recognised that the ‘right to the natural flow of the water’ in the brook ‘undoubtedly belongs to the’ mill owner: but we think that this right cannot extend further than a right to the flow in the brook itself, and to the water flowing in some defined natural channel, either subterranean or on the surface, communicating directly with the brook itself.118

[page 193] The court fully recognised that the ruling would deprive the mill owner of the use of water upon which it had formerly relied, which would otherwise flow into the brook but for the landowner’s actions. But the court explicitly affirmed the significance of the absence of rights to water not flowing in a defined channel: no doubt, all the water flowing from heaven and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please and appropriating it. He cannot, it is true, do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate before it arrives at such a channel.119

8.44 The House of Lords in Chasemore v Richards approved the decisions in Rawstrom v Taylor and Broadbent v Ramsbottom and, in doing so, rejected the slightly earlier decision in Dickinson v Grand Junction Canal Co (1852) 7 Ex 282; 155 ER 953. In Dickinson the court had recognised that water flowing in a defined channel would have been derived in part from water flowing in a diffused manner on the surface or percolating through underground strata. It was argued by the plaintiff that a different regime of rights should not apply to the water when it arrived at the defined channel as contrasted to when it was on its way there: … any private individual might purchase a small portion of land, and by sinking a

well, and pumping the water for the purpose of selling it, might stop all the neighbouring streams. The same rule of law will apply to subterranean as to surface water. A landowner is entitled, jure naturae, to the use of all water which flows in its natural course through his land, and a neighbouring proprietor cannot deprive him.120

Pollock CB for the court agreed with the argument and declared: As to the abstraction of the water which never did form part of the rivers, but has been prevented from doing so in its natural course, by the excavation of the well, whether the water was part of an underground watercourse or percolated through the strata we are also of opinion that an action would lie. The mill owners were entitled to the benefit of the stream in its natural course; and they are deprived of part of that benefit if the natural supply of the stream is taken away.121

The court recognised the problems with not regulating rights to the underground and the diffused surface water while regulating rights to water flowing in defined channels. It recognised the interconnectedness of all of the water, whatever the manner of its flow. [page 194] But the House of Lords in Chasemore v Richards (1859) 11 ER 140; 7 HL Cas 349; [1843–60] All ER 77 (House of Lords) emphasised the uncertainty and the unknowability of water flows and the interference with the rights of landowners which any such rule would have entailed: It is impossible to reconcile such a right with the natural and ordinary rights of landowners, or to fix any reasonable limits to the exercise of such right. Such a right as that contended for by the plaintiff would interfere with, if not prevent, the draining of land by the owner.122

8.45 The New South Wales courts have always been prepared to follow the English authorities. Initially some deference123 was paid to Dickinson v Grand Junction Canal Co, but when that decision was overruled it was accepted that the governing authorities were Rawstrom and Broadbent. In McNamara v Minister for Works (1894) 15 NSWR 173, Chief Justice Owen rejected a claim for loss of water

from a creek because stormwater and other surface water had been drained from a swamp through which the water flowed by a drainage canal constructed by the government. Dicta to like effect were uttered in the Supreme Court of Victoria in Ashworth v Victoria [2003] VSC 194 at [37]. And in the even more arid conditions of Western Australia, the Supreme Court followed the English authorities in refusing to interfere with the obstruction of the flow and the abstraction of water for irrigation from water which was not considered to flow in a defined channel.124 The water in question dried up in the summer completely, but in the winter the water spread out over the land forming a swamp. In spreading out over the land, the water flowed in different channels from year to year. The English rules derived from a temperate climate were applied in the much drier and more seasonal land. Australia was no different in this respect than the common law jurisdictions in Canada, where it was declared: I cannot but conclude that the weight of authority in the provinces of Canada where the English common law prevails is that the principles which apply to water flowing in a defined channel do not apply to surface water — water of a temporary and casual character — which does not flow in any regular channel and has no certain course but which merely squanders itself over the surface of the ground.125

Right to natural quality of water: free from pollution 8.46 Although no liability attaches to the appropriation of diffused surface water, its pollution is actionable as a nuisance or under the form of liability formerly known as the [page 195] rule in Rylands v Fletcher (1868) LR 3 HL 330,126 just as with respect to ground water not flowing in known and defined channels.

No right to drain or unobstructed flow127 8.47 The uncertainty in and the unknown pattern of flow dictated that, as with rights to the use of ground water, the common law would not seek to regulate drainage. Accordingly, although a landowner has a right to drain land, whether naturally or otherwise, onto the lower land of another, the owner of the lower land may take reasonable steps to protect the land, for reasonable use and enjoyment, from damage. The civil and common law have adopted different approaches. 8.48 The civil law systems have adopted ‘the positive praedial rustic servitude of Roman law, by which the owner of land is obliged to receive water naturally flowing from the surface of adjoining land’.128 Early English judicial pronouncements were less than decisive as to the common law approach. There was suggestion that the common law was the same as the civil law.129 But in other cases water was described as ‘a common enemy against which each man may defend himself’.130 In Nield v London & NW Railway (1874) LR 10 Ex 4 at 7, Baron Bramwell observed: the flood is a common enemy against which every man has a right to defend himself. And it would be most mischievous if the law were otherwise, for a man must then stand by and see his property destroyed out of fear lest some neighbour might say ‘You have caused me an injury’.

The Privy Council initially reached a like conclusion, allowing a landowner to resist the natural flow of water and to dam it back on another’s land.131 However, in the case of Gibbons v Lenfestey (1915) 84 LJ (PC) 158 at 160 per Lord Dunedin, the Privy Council, on an appeal from Guernsey, declared that ‘the countries ruled by the common law have accepted the Roman rules’. [page 196] 8.49 Following Gibbons v Lenfestey, lower courts in Australia gave

greater weight to the civil law approach, although they sought to confine it to country lands.132 But the High Court of Australia has refused to follow the Privy Council and has adopted a distinct common law approach.133 In Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 a landowner brought an action to require another to remove barriers that prevented water draining onto the lower land.134 The High Court of Australia rejected the claim, following an extensive analysis of the authorities in the common law world, and ultimately preferred earlier dicta of the High Court which had firmly rejected the application of the civil law principle.135 8.50 The High Court drew some support from the conclusion of the Supreme Court of Canada in Rural Municipality of Scott v Edwards [1934] SCR 332; (1934) 3 DLR 793, which held that there was no unfettered right of drainage of surface water onto lower land and that a lower proprietor might lawfully erect a dam on his property to keep it out, even if by doing so he penned it back upon the land of his neighbour.136 The Supreme Court of Canada expressly approved the judgment appealed from, which had declared that the common law was not the same as the civil law. 8.51 In Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12, Windeyer J ruled that the civil law principle ‘that the owner of higher land has a right to insist upon his lower neighbour receiving surface water running off his land is not part of the common law as it exists in Australia’.137 Rather, the lower neighbour may block the flow of surface water by works on his own land, so far as they are ‘reasonably necessary to protect his land for his reasonable use and enjoyment; but that in doing so he must not act recklessly of his neighbour so as to cause wanton damage to him’. Windeyer J attributed that limitation to ‘the broad principles of the law of nuisance’.138 Liability has been imposed where damage was caused to a neighbour’s land by the construction of banks which unnecessarily caused damage to higher land without

[page 197] protecting the lower land,139 and where a drainage pipe was deliberately blocked, causing flooding of higher land.140 Although the owner of higher land is not liable merely because surface water flows naturally from his land onto lower land, the owner may be liable if such water is caused to flow in a more concentrated form than it naturally would, on account of the ‘discernible work of man’.141 The owner of lower land may bring action against an owner of higher land who has concentrated or altered the natural flow. In Precision Service Centre v Banstead (1985) 2 BCL 248 (NSW Supreme Court), liability was imposed where subdivision and drainage works concentrated water flows so as to cause damage to lower land.142 By analogous reasoning, the requirement on the lower landowner to act in a reasonable manner to protect the land is not applicable with respect to drainage which is not in any way natural.143

Summation of common law rights Rejection of absolute ownership 8.52 Neither the common law regime applied to surface water nor that applied to underground and diffused surface water recognises absolute ownership of water. The regime applied to surface water flowing in a known and defined channel recognises a correlative usufructuary right to the natural flow. The regime applied to underground water and diffused surface water is that of the rule of capture, which allows appropriation of the entire supply by a landowner but confers no protection against appropriation by a neighbouring landowner: the regime confers a right of capture only. The right is essentially defeasible by the activities of others against whom there is no action.

Distinct common law regimes 8.53 The common law established fundamentally different regimes applicable to surface water and underground and diffused surface water. The difference was grounded in the knowledge of the source and path of water flowing in a known and defined channel. Underground and diffused surface water which did not flow in such a channel were regarded as flowing in accordance with a ‘process of nature not apparent’. The discord between the regimes applied is fundamentally antipathetic towards the modern understanding of water as a unified resource where surface and underground flows are physically and intimately connected and related to one another, and whose source, path and pattern of flow are well understood. [page 198]

Water flowing in a known and defined channel: generally surface water 8.54 The general principle with respect to water flowing in a known and defined channel confers a correlative right in the riparian landowner to have the water ‘come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction’. The essential elements of the correlative right are as follows: Confined to the riparian landowner — The right is confined to the riparian landowner or possessor, and must be exercised at the point where the water passes the riparian land. Transfer — Riparian rights may be transferred but only subject to the conditions and limitations applicable to the riparian landowner. Riparian rights are not accordingly readily transferable or divisible. Confined to natural watercourses — The right is confined to

natural watercourses and is not denied merely because flows are seasonal, as long as they are not merely occasional. Right to take and use water — The right to take and use water is limited by the requirement that the use must be connected with the riparian tenement. The right includes the taking and using of water for: – domestic purposes and watering cattle, and for such purposes may exhaust the water supply; or – extraordinary purposes, but the use must be reasonable and must not bring about any sensible diminishment of the flow. Right to be free from pollution — The right includes an entitlement to the natural quality of the water, free from pollution, and is actionable without proof of actual damage. Right to dam and drain — The right includes a right to dam or construct a weir, but only if there is no interference with the natural flow. The right includes a right to have the water drain or go from land without obstruction, and accordingly a downstream obstruction can be restrained.

Water not flowing in a known and defined channel: diffused surface water and underground water 8.55 The general principle regulating underground water and diffused surface water is that of the rule of capture. The essential elements of the rule of capture are as follows: Right is in the surface landowner — The right to capture underground water and diffused surface water is in the surface landowner. Transfer — The right may be transferred but must be exercised on the overlying or overflowed land. The right may be transferred by the surface landowner by a transfer of the water or the strata in which water is found. Any such transfer must include the right to access the surface to appropriate the water, because the right must be exercised on the overlying or overflowed land. In that sense, the right is inextricably linked to ownership of the surface.

Right of capture only — The rule of capture allows appropriation of the entire water supply by a landowner but confers no protection against appropriation by [page 199] a neighbouring landowner. The right of capture is not limited by any regard for connection with the overlying or overflown land, reasonable use, motive or limits on the degree of depletion. The method of appropriation may include a diversion or dam. The right may be exercised in such a manner that the settlement of land and buildings is caused without giving rise to any breach. The only real limit on the right to appropriate the water supply is the same correlative right of a neighbouring landowner to appropriate the supply. Right to be free from pollution — ‘The right to foul water is not the same as the right to get it’, and accordingly the pollution of underground or diffused surface water is actionable as a nuisance or in negligence. No right to drain — The common law does not seek to regulate drainage of underground water and diffused surface water. Accordingly, although a landowner has a right to drain land, whether naturally or otherwise, onto the lower land of another, the owner of the lower land may take reasonable steps to protect the land for reasonable use and enjoyment from damage.

The problems presented by and the implications of the common law regimes for modern Australian society 8.56 The problems presented by the common law regimes for a modern Australian society were and are fundamental, and surmountable only by legislation.

Failure to treat water as a unified resource 8.57 The failure to provide an integrated regime for all surface and underground water is a fundamental barrier to planning and regulation of water. Management of the water resource in all its forms must necessarily be integrated. The common law regimes, providing for distinct and inconsistent regulation of surface and underground water, render integrated planning and management impossible.

Transfer barriers 8.58 Neither riparian rights nor the right of capture with respect to ground water and diffused surface water can be effectively transferred, separate from the land upon which they are situated and from which they are derived. Riparian rights can only be transferred in accordance with the conditions and limitations referable to riparian land ownership. The right of capture with respect to ground water and diffused surface water is only exercisable upon access to the overlying or overflowed land. Transfer of the right to water to the highest and best use is not possible. There can be no efficient market in water rights.

No security 8.59 The right of capture with respect to ground water and diffused surface water is not enforceable against neighbouring landowners who appropriate the supply in accordance with their right of capture. There is accordingly no security with respect to the right of capture. [page 200]

The amount of water and value of rights not measurable 8.60 The amount of water which may be taken or used pursuant

to the common law regimes is not precisely measurable. The riparian regime contemplates correlative rights directed to the balancing of the use of water. But the precise amount of water which may be used cannot be ascertained. The rule of capture allows the appropriation of the entire resource but only provided it is not appropriated by another landowner. The denial of security renders meaningless any measurement of the amount that might otherwise be appropriated. The inability to precisely measure the amount of water which may be taken or used makes speculative the assessment of the value of rights to water. Speculative assessment of value adds to the problems in arranging transfers and denies the operation of an efficient market.

A lesser proprietary status 8.61 The common law regimes contemplate only limited rights of property. If property connotes exclusive and enforceable rights to use, to exploit, to control and to transfer, the common law regimes are at the lower end of the spectrum of property rights. Riparian rights are shared with other riparian landowners and are accordingly not exclusive. The right to use, exploit and control is correlative to the rights of other riparian landowners and is essentially shared. Transfer of riparian rights is rendered difficult by the problems in measuring its value and by its inextricable connection with riparian land. The rights are, however, enforceable and possess security in that respect, and there is no doubt of their proprietary nature. It is just that they are of a lesser proprietary status. The right to capture is not enforceable against the critical parties, neighbouring landowners and others with access to the water, who can reduce and deny its value. The denial of security renders meaningless the measurement of the value of the right. The right to use, exploit and control is shared with those neighbouring landowners and others with access to the water. It is

not transferable except in conjunction with the land. It is exclusive, but because of the nature of migratory underground water, the exclusivity is shared with neighbouring landowners. Rights to capture are of an even lesser proprietary status than riparian rights. Proprietary rights are the foundation of achieving efficient use of a resource through market mechanisms, such as water trading. A lesser proprietary status precludes establishing efficient use of the water resources of Australia.

Incompatible with development of industry, agriculture and infrastructure 8.62 The limitations of riparian rights relating to: connection with and confinement to the riparian land; use for purposes other than domestic only if there is no substantial diminishment of the water supply; and reasonable use [page 201] render the regime incompatible with the development of industry, agriculture and infrastructure. The connection with and confinement to riparian land invalidate the transport of water for use off riparian land. Such a restriction in an arid land such as Australia, where there can be major distances from any water supply, would sterilise vast areas from industry and development. The restriction of use to which water may be put effectively precludes any substantial consumptive use, which would commonly include any major commercial activity, whether agricultural or industrial, and the development of infrastructure. The additional restriction that the use must be reasonable, having regard to the requirements of

other users, effectively eliminates the possibility of a major water consumptive project. By contrast, the non-regulation of ground water and diffused surface water supplies by the common law presents few obstacles to the development of industry, agriculture or infrastructure as long as there is sufficient water to meet all demands. Much of the agricultural industry in inland Australia is founded on such access to ground water supplies. But immediately there is a shortfall the chronic lack of security of the right of capture undermines any development. In Kennedy v Minister of Works (1970) WAR 102, the owners of Millstream cattle station were denied a remedy upon the appropriation of underground water on which the station depended in order to provide a public water supply to the towns of Dampier and Karratha.

Waste 8.63 Water is a scarce resource in Australia. It should not be wasted. But the rule of capture relating to ground water and diffused surface water allows waste. It allows not merely economic waste (a use which is not efficient) but also physical waste (water is dissipated without being used at all). The riparian regime is much more interventionist and, by protecting the natural flow and restricting water use, prevents physical waste. It does not, however, support efficient use, and in that sense may be said to contribute to economic waste. A controversial view expressed in the early 1970s declared that the regime contributed to physical waste, by allowing water to flow all the way to the sea. A more contemporary view would regard such flows as environmentally desirable, which has given rise to the concept of minimum environmental flows being enshrined in legislation.

Environmental sustainability and the natural flow 8.64 The rule of capture in no way provides for environmental

sustainability and natural flow. It contemplates no regulation and has no object in view. The riparian regime, on the other hand, contemplates a system of correlative rights among riparian landowners allowing for sharing access and use of the water supply in the context of the ultimate object of the sustainability of the natural flow of that supply. The riparian regime is entirely consistent with environmental sustainability. But the riparian regime makes no allowance for development beyond the domestic level and, in that sense, fails to allow for the development of modern society. [page 202]

Right to be free from pollution 8.65 Both the riparian regime and the regime governing underground water and diffused surface water contain stringent protection against damage to the environment in the form of pollution. The riparian regime demands that the natural quality of the water be maintained and, indeed, gives rise to an action if it is not, even though no real injury is suffered because actual damage need not be proved. The regime governing underground water and diffused surface water relies on the torts of nuisance and negligence to protect against pollution. The problems presented by the common law regimes are not with respect to an inability to control pollution, but with respect to the rights to take and use water. The common law regimes are still used, along with statutory controls, to restrain pollution.

Recognition of problems and refusal to accept riparian doctrine in the United States 8.66

The western ‘appropriation system’ states of the United

States refused to adopt the riparian doctrine. The reasoning for such refusal amounts to a recitation of the problems that the doctrine presented for the development of arid regions. The riparian doctrine was declared inapplicable. As the Wyoming Supreme Court explained in Moyer v Preston 44 P 845 (1896): So much only of the common law as may be applicable has been adopted in this jurisdiction. The doctrine involved is inapplicable.

The court explained the inapplicability of the riparian doctrine and the application of that prior appropriation: The common law doctrine relating to the rights of a riparian proprietor in the water of a natural stream, and the use thereof, is unsuited to our requirements and necessities, and never obtained in Wyoming. The doctrine invoked is inapplicable. A different principle, better adapted to the material conditions of this region, has been recognized. That principle, briefly stated, is that the right to the use of water for beneficial purposes depends upon a prior appropriation …

The court referred to the problems presented by the riparian doctrine for a country of such climatic conditions: It is the natural outgrowth of the conditions existing in this section of the country. The climate is dry. The soil is arid, and largely unproductive in the absence of irrigation, but, when water is applied by that means, it becomes capable of successful cultivation. The benefits accruing to land upon the banks of a stream without any physical application of the water to the land are few; and while the land contiguous to water, and so favourably located as to naturally derive any sort of advantage therefrom, is comparatively small in area, the remainder, which comprises by

[page 203] far the greater proportion of our lands otherwise susceptible of cultivation, must forever remain in their wild and unproductive condition, unless they are reclaimed by irrigation. Irrigation and such reclamation cannot be accomplished with any degree of success or permanency without the right to divert and appropriate water of natural streams for that purpose, and a security accorded to that right. Thus, the imperative and growing necessities of our conditions in this respect alone, to say nothing of the other beneficial uses, also important, to which water has been and may be applied, have compelled the recognition, rather than the adoption, of the law of prior appropriation.144

The reasoning in other ‘appropriation system’ states was to like effect.145

Legislative goals and structures to overcome common law deficiencies 8.67 Legislation was and is required to overcome the problems presented by the common law regimes for modern Australian society. The goals of the needed legislation are to: 1. establish an integrated regime governing both surface water and underground water to allow for integrated planning and management; 2. remove the barriers to the transfer of water rights by, in particular, allowing transfer separate from land ownership; 3. provide security of water rights as to tenure, including allocation, terms and conditions and duration; 4. enable the measurement and quantification of the amount of water that may be taken and used pursuant to an enforceable right; 5. provide a sufficient level of proprietary status to allow for the use of market mechanisms to secure efficient use of water supplies by, in particular (see 3, 4, 5 supra): (a) removing barriers to transfer; (b) providing security; and (c) enabling measurement and quantification; 6. establish bulk water rights that allow for: (a) substantial consumptive uses and diminishment of supply, including industrial, agricultural and infrastructure uses; and (b) removal from and consumption off riparian lands; 7. prohibit waste, both physical and economic, in particular by

abolishing the rule of capture; and [page 204] 8.

retain some elements of the common law regimes, in particular those relating to: (a) environmental sustainability; (b) protection from pollution; and (c) maintain domestic uses.

8.68 The legislative goals demand a structure comprising: overarching sovereignty and control to secure integrated planning and management of the resource, both surface and underground; a new water rights regime meeting the needs of domestic and bulk users, and conferring such proprietary status that a water rights market for bulk users can operate effectively; prohibition of waste; and protection of the environment. The structure would entail substantial displacement of the common law but does not necessarily require the complete abolition of the common law regimes. The next chapters will examine the degree to which the common law regimes have been displaced or abolished.

1.

The Northern Territory was a part of New South Wales until 1863, when it was annexed to South Australia. The Commonwealth took over administration of the territory in 1911. Self-government was granted in 1978.

2.

Queensland was a part of New South Wales until 1859, when it became a separate colony. Cooper v Corporation of Sydney (1853) 1 Legge 765; Hood v Corporation of Sydney (1860) 2 Legge 1294. In both cases the court followed the established English

3.

authorities relating to surface water, riparian rights and ground water. 4. 5.

Dunn v Collins (1867) 1 SALR 126 (SA Supreme Court FC). The courts in every state have accepted the applicability of the English common law rules subject to legislation: Newstead v Flannery (1887) 8 ALT 178 (Victoria County Court); Lyons v Winter (1899) 25 VLR 464; Nagle v Miller (1904) 29 VLR 765; 26 ALT 6; 10 ALR 119 (Victorian Supreme Court FC); Marshall v Cullen (No 2) (1914) 16 WAR 92; Moore v Corrigan [1949] Tas SR 34 at 46 per Clark J (Tas Supreme Court); Springboard v McMerriman (1910) 4 QCLLR 161 (Queensland Supreme Court).

6.

ICM Agriculture v Commonwealth [2009] HCA 51 per French CJ, Gummow, Crennan JJ at [55]–[57] and per Hayne, Kiefel and Bell JJ at [109]–[114]. Liggins v Inge (1831) 7 Bing 682; 131 ER 263 per Lord Chief Justice Tindal.

7. 8.

9.

Vol 2, 14 and see p 18: ‘Water is a movable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient usufructuary property therein …’. Sury v Piggot (1682) Popham 166 at 172; 79 ER 1263 at 1268 per Doderidge J.

10. 11.

Cooper v Corporation of Sydney (1853) 1 Legge 765; (1853) NSWSC 765. Kennedy v Minister of Works (1970) WAR 102; see Bradford Corp v Ferrand [1902] 2 Ch 655; Black v Ballymena Township Commissioners (1886) 17 LR Ir 459.

12.

13.

McCartney v Londonderry and Lough Swillie Railway Co [1904] AC 301 at 306 per Lord Macnaghten; see also Embrey v Owen (1851) 6 Exch 353 at 370; 155 ER 579 at 586; Miner v Gilmour (1859) 14 ER 861 at 870; Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB; Kinset v Great Eastern Railway Co (1884) 27 ChD 122 at 130. Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB.

14. 15.

Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB. Hill v O’Brien [1938] 61 CLR 96 at 110 per Dixon J.

16. 17.

Moore v Corrigan [1949] Tas SR 34 at 49 per Clark J (Tas Supreme Court). See also Moore v Corrigan [1949] Tas SR 34 (Tas Superior Court).

18.

Re Special Lease No 30455 (Amoco Australia) Brisbane District (1977) 4 QLCR 141 (Queensland Land Appeal Court); (1976) 3 QLCR 171 affirmed. Stollmeyer v Trinidad Lake Petroleum Co (1918) AC 485 at 491 per Lord Sumner, quoted with approval in Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 26 per Windeyer J, Dixon CJ concurring.

19.

20. 21. 22.

23.

Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 26 per Windeyer J, Dixon CJ concurring. Daws v M’Donald (1887) 13 VLR 698; Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 26–27 per Windeyer J, Dixon CJ concurring; applied Muckle v Anderson [2002] NSWCA 283; also see Gardiner v Miller (1956) 56 SR (NSW) 122 at 126; cf Hansen v Burrum Shire Council [1953] St R Qd 178. In Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 26, Dixon CJ concurring. Windeyer J attributed the passage to Briscoe v Drought (1859) 11 Ir CL 250 at 271

and noted that it was adopted and applied by Madden CJ in Vinnicombe v MacGregor (1902) 28 VLR 144 and that the observations of Hood J in Lyons v Winter (1899) 25 VLR 464 were substantially to the same effect. 24. 25.

26. 27. 28.

29.

30.

31.

Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 28 per Windeyer J, Dixon CJ concurring. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 48 per Windeyer J, Dixon CJ concurring. Compare Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96 at [101]–[102] per Rackemann DCJ. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 32 per Windeyer J, Dixon CJ concurring. Stollmeyer v Trinidad Lake Petroleum Co Ltd [1918] AC 485; Knezovic v Shire of SwanGuildford (1968) 118 CLR 468. O’Brien v Hill [1938] SASR 61 (SA Supreme Court); appeal allowed on another ground, see (1938) 61 CLR 96; also Newstead v Flannery (1887) 8 ALT 178 (Victoria County Court). Aisbett v City of Camberwell (1933) 50 CLR 154 at 169 per Dixon J; Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 at 475–476 per Barwick J; Lyons v Winter (1899) 25 VLR 464 at 466. Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96 at [101]–[102] per Rackemann DCJ. This decision appears to be inconsistent with the comments in Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 48 per Windeyer J, Dixon CJ concurring, regarding the ambit of the flood channel of a watercourse. Macag Holdings v Torrens Catchment Water Mgt Board No SCGRG-99-1635 [2000] SASC 115, overturning Macag Holdings v Torrens Catchment Water Mgt Board No Erd99-1146, Erd-99-1147 [1999] SAERDC 97. Both courts applied the common law concept of watercourse to the interpretation of the definition of ‘watercourse’ in s 3 of the Water Resources Act 1997 (SA).

32. 33.

Hayes v Espie [1835] Tas SupC 8. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 24 per Windeyer J, Dixon CJ concurring.

34.

Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 34 per Windeyer J, Dixon CJ concurring. Kennedy v Minister of Works (1970) WAR 102 at 106 per Hale J.

35. 36. 37.

Black v Ballymena Township Commissioners (1886) 17 LR Ir 459 at 474–475 per Chatterton VC; Kennedy v Minister of Works (1970) WAR 102 at 105 per Hale J. Blackstone’s Commentaries on the laws of England, Vol 2, 14 and 18; Liggins v Inge (1831) 7 Bing 682; 131 ER 263 per Lord Chief Justice Tindal.

38. 39.

(1833) 110 ER 692 at 700, and see also 698. (1833) 110 ER 692 at 698.

40.

Miner v Gilmour (1859) 14 ER 861 at 870; Jones v Kingborough Corp (1950) 82 CLR 282 at 324 and 342; Moore v Corrigan [1949] Tas SR 34 at 47 per Clark J (Tas Supreme Court). Metropolitan Water Board v Avery [1914] AC 118 at 126–127 per Lord Atkinson.

41.

42.

Swindon Waterworks Co v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697 at 704 per Cairns LC.

43.

Tate & Lyle Industries v Greater London Council [1983] 2 AC 509 at 534 per Lord Templeman; and see Hudson, ‘Industry as a Riparian Use’ (1959) 22 MLR 35. At 167 per Brett MR; at 172 per Bowen LJ.

44. 45. 46.

Metropolitan Water Board v Avery [1914] AC 118. See Bound Judgements WA Supreme Court 1964, p 1115, UWA Law Library. And see Clark J in Richardson v Browning (1936) 31 Tas LR 78 at 111, declaring that the use of water for irrigating orchards, crops and grass constituted an extraordinary purpose in Tasmania.

47. 48.

(1950) 82 CLR 282 at 324 per Dixon J and 299 per Latham CJ. Jones v Kingborough (1950) 82 CLR 282; Swindon Waterworks Co v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697.

49.

McCartney v Londonderry and Lough Swillie Railway Co [1904] AC 301 at 307 per Lord Macnaghten; overturning Earl of Sandwich v Great Northern Railway (1878) 10 ChD 707. Attwood v Llay Main Collieries Ltd [1926] Ch 444 at 459 per Lawrence J.

50. 51. 52.

53.

54.

Nagle v Miller (1904) 29 VLR 765 at 786 per Madden CJ; 26 ALT 6; 10 ALR 119 (Victorian Supreme Court FC). Secretary of State for India v Subbarayudu (1931) LR 59 IA 56 at 64 per Lord Dunedin; Jones v Kingborough (1950) 82 CLR 282 at 345 per Fullager J, at 301 Latham CJ. Spray irrigation was not a permitted use in Rugby Joint Water Board v Watters [1967] Ch 397; [1966] 3 All ER 497. Lomax v Jarvis (1885) 6 LR(NSW) 237; 2 WN 33 (NSW Superior Court FC); Stollmeyer v Trinidad Lake Petroleum Co [1918] AC 485; Attwood v Llay Main Collieries Ltd [1926] Ch 444. Embrey v Owen (1851) 6 Exch 353; Miner v Gilmour (1859) 14 ER 861 at 870; Ormerod v Todmorden Joint Stock Mill Co Ltd (1883) 11 QBD 155 at 168 per Brett MR.

55. 56.

(1875) LR 7 HL 697 at 704. Richardson v Browning (1936) 31 Tas LR 78 at 99 and 120–121 per Clark J (Tasmanian Supreme Court).

57. 58.

Jones v Kingborough (1950) 82 CLR 282 at 345 per Fullager J, at 301 per Latham CJ. Richardson v Browning (1936) 31 Tas LR 78 at 131–132 per Clark J (Tasmanian Supreme Court).

59.

McCartney v Londonderry and Lough Swillie Railway Co [1904] AC 301 at 306 per Lord Macnaghten; also Embrey v Owen (1851) 6 Exch 353 at 370; 155 ER 579 at 586; Miner v Gilmour (1859) 14 ER 861 at 870; Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB; Kinset v Great Eastern Railway Co (1884) 27 ChD 122 at 130. Lomax v Jarvis (1885) 6 LR(NSW) 237; 2 WN 33 (NSW Superior Court FC); Stollmeyer v Trinidad Lake Petroleum Co [1918] AC 485.

60. 61. 62.

Lawrence v Kempsey Shire Council (1995) 87 LGERA 49. Hood v Corporation of Sydney (1860) 2 Legge 1294 (NSW Supreme Court FC).

63. 64.

Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 at 126 and 130. Scott-Whitehead v National Coal Board (1987) 53 P & CR 263.

65. 66.

John Young and Co v Bankier Distillery Co [1893] AC 691. Tipping v Eckersley (1855) 2 K & J 264; 69 ER 799.

67. 68.

Jones v Llanrwst UDC [1911] 1 Ch 393 at 402. Swan Fisheries Ltd v Holberton (December 1987, unreported, QBD).

69. 70.

Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264. Pride Of Derby And Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 1 All ER 179 (Court of Appeal).

71.

(1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331, and see Deasy Investments P/L v Monrest P/L [1996] QCA 466. In Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, the House of Lords unanimously chose not to follow the approach of the High Court of Australia and retained the distinct rule in Rylands v Fletcher. (1994) 179 CLR 520 at [43].

72. 73. 74.

75.

76.

Nagle v Miller (1904) 29 VLR 765 at 786 per Madden CJ; 26 ALT 6; 10 ALR 119 (Victorian Supreme Court FC). Menzies v Earl of Breadalbane (1828) 3 Bli NS 414; 4 ER 1237 (Ct Sess); Bicket v Morris (1866) LR 1 Sc & Div 47, HL; Nalder v Commissioner for Railways (1983) 1 Qd R 620 at 624 and 627 (Queensland Supreme Court); Higgins v Gray (1980) 19 VPA 42 (Victoria Drainage Tribunal); Travis v Vanderloos (1984) 54 LGRA 268 (Queensland Supreme Court). Miner v Gilmour (1859) 14 ER 861 at 870; Pring v Marina (1866) 5 SCR (NSW) 390 (NSW Supreme Court FC); Lomax v Jarvis (1885) 6 LR (NSW) 237; 2 WN 33 (NSW Superior Court FC). Stevens v M’Clung (1859) 2 Legge 1226 (NSW Supreme Court).

77. 78.

Rapoff v Velios (1975) WAR 27 at 31. O’Brien v Hill [1938] SASR 61 (SA Supreme Court), appeal allowed on another ground (1938) 61 CLR 96; Springboard v McMerriman (1910) 4 QCLLR 161 (Queensland Supreme Court).

79. 80.

Dudden v Clutton Union Guardians (1857) 1 H & N 627; 156 ER 1353. Broadbent v Ramsbottom (1856) 11 Ex 602; 156 ER 971.

81.

Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4 (NSW Supreme Court, Court of Appeal). Menzies v Earl of Breadalbane (1828) 3 Bli NS 414; 4 ER 1237 (Ct Sess); Bicket v Morris (1866) LR 1 Sc & Div 47, HL. Also see Embrey v Owen (1851) 6 Exch 353; 155 ER 579; Leichardt Municipal Council v Wells (1915) 3 LGR 25 (NSW District Court); Travis v Vanderloos (1984) 54 LGRA 268 (Queensland Supreme Court).

82.

83.

Kingborough Municipality v Bratt [1957] Tas SR 173; (1957) 7 LGRA 295 (Tasmanian Supreme Court). In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331, the High

84. 85. 86. 87.

Court integrated the rule in Rylands v Fletcher into the Australian law of nuisance and negligence, including the requirement of reasonably foreseeable risk of damage, and see Deasy Investments P/L v Monrest P/L [1996] QCA 466. R.v Southern Canada Power Co Ltd (1937) 3 All ER 923 at 928 per Lord Maugham. Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4 (NSW Supreme Court, Court of Appeal). Lord v Sydney City Commissioners (1859) 12 Moo PCC473; 14 ER 991 at 1001 per Coleridge J. Mason v Hill (1833) 110 ER 692; Kinset v Great Eastern Railway Co (1884) 27 ChD 122 at 133 per Cotton LJ at 136 per Lindley LJ; Richardson v Browning (1936) 31 Tas LR 78 at 132 per Clark J (Tasmanian Supreme Court).

88.

Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB: There seems to be no authority for contending that the riparian proprietor can keep the land abutting on the river the possession of which gives him his water rights, and at the same kind transfer those rights or any of them, and thus create a right in gross by assigning a portion of his rights appurtenant … Can [a grantee] have them by express grant? It seems to us the true answer to this is that he can have them against a grantor but not so as to sue other persons in his own name for an infringement of them.

89.

Stockport Waterworks Co v Potter (1864) 159 ER 545 at 556 per Pollock CB; Ormerod v Todmorden Joint Stock Mill Co Ltd (1883) 11 QBD 155. Ormerod v Todmorden Joint Stock Mill Co Ltd (1883) 11 QBD 155 at 170 per Brett MR.

90. 91.

92. 93. 94. 95. 96.

(1884) 27 ChD 122 at 133 per Cotton LJ. Clark J in Richardson v Browning (1936) 31 Tas LR 78 at 136 explained the result in Kinset v Great Eastern Railway Co (1884) 27 ChD 122: The plaintiff therefore failed, not because the defendant had established that he had a right to divert the water as against the plaintiff, but because the plaintiff failed to prove any injury to his rights as a riparian owner. The defendant succeeded not by virtue of any right of his which prevailed against the right of the plaintiff, but because the plaintiff failed to prove facts which established a cause of action. Kinset v Great Eastern Railway Co (1884) 27 ChD 122 at 136 per Lindley LJ. Wood v Waud (1849) 3 Exch 748 at 772; 154 ER 1047 at 1057 per Pollock CB; Ballard v Tomlinson (1885) 29 ChD 115 at 126–127 per Lindley LJ. Moore v Corrigan [1949] Tas SR 34 at 65 per Clark J (Tas Supreme Court). White v Taylor (1874) 8 SALR 1 (SA Supreme Court). Crossley and Sons v Lightowler (1866) LR 3 Eq 279 at 296–298, affirmed (1867) 2 Ch App 478; Jones v Llanrwst UDC [1911] 1 Ch 393 at 402 per Parker J; Stollmeyer v Trinidad Lake Petroleum Co Ltd [1918] AC 485 at 496–497 per Lord Sumner; Attwood v Llay Main Collieries Ltd [1926] Ch 444; Newstead v Flannery (1887) 8 ALT 178 (Victoria County Court); Pring v Marina (1866) 5 SCR (NSW) 390 at 396 per Stephen CJ (NSW Supreme Court FC); Howell v Prince (1869) 8 SCR (NSW) 316 at 318 per Stephen CJ (NSW Supreme Court); Moore v Corrigan [1949] Tas SR 34 at 58 per Clark J (Tas Supreme Court).

In John Young and Co v Bankier Distillery Co [1893] AC 691 at 698, Lord M’Naghten in obiter observed: ‘Any invasion of this right causing actual damage or calculated to found a claim which may ripen into an adverse right entitles the party injured to the intervention of the court.’ The implication of Lord M’Naghten’s observation is that if prescription is not possible with respect to water rights, as in most jurisdictions in Australia because it has been restricted by legislation, actual damage must be shown. But the observation was very much obiter, and the position was rejected in Attwood v Llay Main Collieries Ltd [1926] Ch 444 at 460 per Lawrence J. 97. 98.

Jones v Llanrwst UDC [1911] 1 Ch 393 at 402 per Parker J. Howell v Prince (1869) 8 SCR (NSW) 316 at 318 per Stephen CJ (NSW Supreme Court).

99.

S D Clark and I A Renard, The Law of Allocation of Water for Private Use, Research Project 69/16, Australian Water Resources Council, Melbourne, 1972, Volume 1: The Framework of Australian Water Legislation and Primary Rights, pp 96–112. 100. Ibid, p 104. 101. Stollmeyer v Trinidad Lake Petroleum Co Ltd [1918] AC 485 at 496–497. 102. In the United States the courts have generally imposed a reasonable use limitation: see R E Beck (ed), Waters and Water Rights, vol 3, The Michie Co, Charlottesville, VA, 1991, chapter 23, ‘Reasonable Use Rule’. 103. (1859) 11 ER 140 at 155 (HL). 104. See ICM Agriculture v Commonwealth [2009] HCA 51 per French CJ, Gummow and Crennan JJ at [55]–[57] and per Hayne, Kiefel and Bell JJ at [109]–[114]. 105. Approved by Barton J in Mayor of Perth v Halle (1911) 13 CLR 393. 106. [1895] AC 587 at 598. 107. Popplewell v Hodkinson (1869) LR 4 Ex 248; Salt Union Ltd v Brunner Mond and Co [1906] 2 KB 822. 108. Trinidad Asphalt Co v Ambard [1899] AC 594 (pitch); Jordeson v Sutton, Southcoates and Drypool Gas Co [1899] 2 Ch 217 (running silt); Mayor of Perth v Halle (1911) 13 CLR 393 (salt). 109. Langbrook Properties Ltd v Surrey County Council [1970] 1 WLR 161 at 178 per Plowman J; Stevens v Anglican Water Authority [1987] 1 WLR 1381 at 1387 per Slade LJ; cf Brace v South East Regional Housing Association (1984) 270 EG 1286. 110. New River Co v Johnson (1860) 121 ER 164; Grand Junction Canal v Shugar (1871) LR 6 Ch 483; Jordeson v Sutton, Southcoates and Drypool Gas Co [1899] 2 Ch 217; English v Metropolitan Water Board [1907] 1 KB 588. 111. Now see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331. 112. Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264; (1994) 1 All ER 53 at 68–69 (HL). 113. But not necessarily the House of Lords’ conclusion in Cambridge Water Co v Eastern Counties Leather as to whether such damage is foreseeable. 114. (1994) 179 CLR 520 at 43; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331. See also Deasy Investments P/L v Monrest P/L [1996] QCA 466. In

Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, the House of Lords unanimously chose not to follow the approach of the High Court of Australia and retained the distinct rule in Rylands v Fletcher. 115. Lord v Sydney City Commissioners (1859) 12 Moo PCC 473; 14 ER 991 at 1001 per Coleridge J; Jennings v Sylvania Waters Pty Ltd [1972] 2 NSWLR 4 (NSW Supreme Court, Court of Appeal). 116. Chasemore v Richards (1859) 11 ER 140; 7 HL Cas 349; [1843–60] All ER 77 (House of Lords) per Lord Chelmsford. 117. Rawstrom v Taylor (1855) 11 Ex 369; 156 ER 873 at 880; Lord Chelmsford recited the passage with approval in Chasemore v Richards (1859) 11 ER 140; 7 HL Cas 349; [1843–60] All ER 77 (House of Lords). 118. (1856) 11 Ex 602 at 615; 156 ER 971 at 976. 119. (1856) 11 Ex 602 at 615; 156 ER 971 at 976. 120. (1852) 7 Ex 282 at 293–294; 155 ER 953 at 958. 121. (1852) 7 Ex 282 at 302; 155 ER 953 at 961. 122. (1859) 11 ER 140 at 149; 7 HLC 349 at 371. 123. Cooper v Corporation of Sydney (1853) NSWSC 765. 124. Marshall v Cullen (No 2) (1914) 16 WAR 92 (WA Supreme Court). 125. Edwards v Rural Municipality of Scott [1934] 1 WWR 33 at 44 per Martin JA (Saskatchewan Court of Appeal). The reasoning and decision was approved on appeal by the Supreme Court of Canada: Rural Municipality of Scott v Edwards [1934] SCR 332. 126. In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331, and see Deasy Investments P/L v Monrest P/L [1996] QCA 466, the High Court integrated the rule in Rylands v Fletcher into the Australian law of nuisance and negligence, including the requirement of reasonably foreseeable risk of damage. 127. See A Gardner and T Setter, ‘Legal Powers and Responsibilities for Managing Diffuse Pollution from Agriculture; Regulating the Flow of Water — the Common Enemy’ (1998) 5(2) Australasian Journal of Natural Resources Law and Policy 1. 128. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 39 per Windeyer J, Dixon CJ concurring. 129. Smith v Kenrick (1849) 7 CB 515 at 566; 137 ER 205 at 225 per Cresswell J. 130. In Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 39, Windeyer J, Dixon CJ concurring, observed that: ‘The use of the term “common enemy” in this connexion seems to be derived from Lord Tenterden’s judgment in R v Commissioners of Sewers for Pagham, Sussex (1828) 8 B & C 355, at p 361 (108 ER 1075, at p 1077)’. 131. Greyvensteyn v Hattingh (1911) AC 355 at 359 (PC). 132. In Victoria, the decision in Vinnicombe v MacGregor (1902) 28 VLR 144 was treated as having been made firm after a shakiness resulting from the doubts cast on it in Nelson v Walker (1910) 10 CLR 560; City of Oakleigh v Brown (1956) VLR 503; and Traian v Ware (1957) VR 200. In those cases and in Coulter v TM Burke Pty Ltd (1960)

VR 16, the civil law doctrine was said to apply only to country lands. In Bennetts v Honroth (1959) SASR 170 at 175, Ross J said he had found ‘singularly little authority dealing with city or suburban lands’. In Queensland, in Righetti v Wynn (1950) St R Qd 231, Lord Dunedin’s judgment was quoted from and applied. In South Australia, the application of what was said by Lord Dunedin was said to be limited by the facts of the case: Dubois v District Council of Noarlunga (1959) SASR 127 at 130 and 131. 133. Although in 1987, in Home Brewery Co Ltd v William Davies & Co (Leicester) Ltd [1987] 1 QB 339, an English court adopted the common law approach promulgated by the High Court of Australia in Gartner v Kidman. 134. At 46 per Windeyer J, Dixon CJ concurring. 135. Nelson v Walker (1910) 10 CLR 560 per Griffith CJ and O’Connor J. 136. At 794, affirming [1934] 1 WWR 33 at 44 per Martin JA (Saskatchewan Court of Appeal). 137. At 46 per Windeyer J, Dixon CJ concurring. 138. The decision of Gartner v Kidman and its legislative consequences in Victoria were discussed in Hazelwood Power Partnership v Latrobe City Council [2015] VSC 638 at [364]–[367]. 139. Furness v Clarke (1970) 1 SASR 359 (SA Supreme Court). 140. Comserv (No 1877) Pty Ltd v Wollongong City Council [2001] NSWSC 302. 141. Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 at 48 per Windeyer J, Dixon CJ concurring. 142. A similar result was reached more recently in Gale’s Holding v Tweed Shire Council [2013] NSW CA 382 at [133]–[136] and [174] per Emmett JA, Leaming and Sackville JA concurring. 143. Elston v Dore (1982) 149 CLR 480 at 490–491. 144. 44 P 847 (1896). 145.

Colorado: Coffin v Left Hand Ditch Co 6 Colo 443 (1882). Idaho: Hutchinson v Waterman Slough Ditch Co 101 P 1059, 1062 (1909). Utah: Stowell v Johnson 26 P 280 (1891). Montana: Mettler v Ames Realty 201 P 702 (1921). Nevada: Jones v Adams 6 P 442 (1885).

[page 205]

9 STATE DECLARATIONS OF THE VESTING OF RIGHTS TO PROPERTY, USE, FLOW AND CONTROL OF WATER 9.1 The common law denies ownership of ground water and surface water.1 It recognises property rights in water only to the extent of riparian rights of use of surface water flowing in defined channels and the right of capture with respect to ground water and diffused surface water. The common law has long been recognised as inadequate for the establishment of a water management scheme that would serve in the development of arid or semi-arid jurisdictions. State legislative declarations of the vesting of property and rights to use, flow and control were made in order to afford a foundation for the introduction of comprehensive legislative schemes.2 But what rights and powers did the declarations confer? Did they confer absolute ownership of, and thereby ‘nationalise’, the water? Did they extinguish or confiscate all private rights to water? 9.2 This chapter examines the history and form of state declarations with respect to water and the reasons that lay behind them. It is concluded that the state declarations of property and rights to use, flow and control of water conferred rights of

sovereignty and control but not absolute ownership. Moreover, historic, and perhaps contemporary, uncertainty surrounds whether they did not of themselves extinguish or confiscate private rights to water. The explanation for why such broad declarations had such limited effect lies in: the nature of water. Fundamental to the examination is the nature of water as a resource: its critical significance to society, migratory nature, uncertain path, trans-boundary aspects and limited and uncertain availability in the present and future. The limitation of the state declarations reflects that nature to which, like the common law, the legislatures had to accommodate and adjust. Both the legislatures and the judiciary in the interpretation of legislation have been reluctant to adopt the conclusion that such a resource is the subject of absolute ownership. References to ‘property’ have been construed as references to control and sovereignty; [page 206] the regard and respect accorded existing proprietary rights, particularly private rights. It has long been established that private rights will not be held to be confiscated by legislation except where clear and plain language is used; and the limitation of state power to that which is necessary to accomplish the objects of the legislation.

History: the introduction of state vesting clauses Surface water 9.3 The problems presented by the common law regime for the management of surface water led to the first declarations of state

property and control in Victoria. The drought of 1877–81 created great distress for thousands of farmers, and the government moved to provide for the conservation of water supplies under local management.3 The Water Conservation and Distribution Act 1881 (Vic) empowered local trusts to construct and manage waterworks, and to that end sought to limit common law riparian rights by providing that all water in any river under the control of a trust ‘shall be the property of the trust and shall be used by them for the purposes of the work(s)’.4 In 1884, Attorney General Alfred Deakin was appointed Chairman of a Royal Commission on Water Supply. Deakin immediately left to tour the Western United States, including the states notable for irrigation works: Arizona, California and Colorado. The first progress report of the Commission was entitled Irrigation in Western America and included the recommendation: It is essential that the State should exercise the supreme control of ownership over all the rivers, lakes, streams and sources of water supply, except springs arising upon private lands.5

9.4 Upon the introduction of the Irrigation Act 1886 (Vic), Deakin stressed the need for ‘supreme power and responsibility in connection with the care and custody of water’ to vest in the state, to deny any interference by reason of riparian rights, and to clearly define rights of individuals and the state.6 Deakin intended that common law riparian rights to take water be abolished and be replaced, in part, by statutorily defined rights. Deakin considered that the provision of a statutory riparian right limiting the taking [page 207] of water to domestic and stock purposes emphasised the right of the Crown over the remainder: In thus limiting riparian rights, it enables the whole of the rest of the water to be utilised for irrigation and other purposes.7

The Act established a licensing scheme for water use and provided for irrigation districts in which such licensed water uses could be exercised. In order to deny riparian rights, the Bill originally provided that ‘All water at any time in every river … shall in every case be deemed to be the property of the Crown’.8 However, on account of resistance in parliament, the Bill was modified. The opposition expressed concern as to the uncertain meaning of the clause and questioned the use of the term ‘property’ in relation to water. The very limited rights which the common law recognised in water were emphasised. Moreover, there was opposition to the abolition of private rights to use surface water. Faced with the opposition in parliament, the Attorney General declared: The government … have been anxious not to introduce any sweeping or revolutionary clause which would unsettle the right to property in water all through the colony … [T]here is a seductiveness in the idea for doing the whole thing thoroughly, by sweeping away riparian rights altogether; but that would not be a wise course to adopt.9

In the result, the vesting section provided: The right to the use of all water at any time in any river stream watercourse lake lagoon swamp or marsh shall for the purposes of this Act in every case be deemed to be vested in the Crown until the contrary be proved … (s 4).

The vesting of a right of use in the Crown was substituted for a right of property of uncertain scope. 9.5 Ten years later, New South Wales phrased its vesting section so as to include ‘the right to the use and flow and to the control of the water in all rivers and lakes’. The vesting clause did not refer to property or ownership. It was a significant change from previous Bills which had declared that all waters ‘belong’ to the Crown. The Attorney General of New South Wales declared that the object of the Act was the ‘nationalisation of the waters’,10 but that was a farfrom-consistent understanding of the effect of the Act in parliament.11 The debates indicated that some members of

parliament did not consider that the legislation had necessarily extinguished private riparian rights to the use of water. [page 208] 9.6 In 1905, Victoria revised its legislation, resulting in the Water Act. It established the Rivers and Water Supply Commission to provide overall state control and administration of water development. Section 4 adopted the New South Wales formula vesting the right to use, flow and control in the state. The pattern of vesting ‘the right to the use and flow and to the control of the water’ set in Victoria and New South Wales was followed thereafter in Queensland in 1910 and Western Australia in 1914. 9.7 The debates in parliament in Western Australia, as in Victoria, revealed opposition to the establishment of Crown ownership of water and the divestment of private rights. The emphasis in the statute which eventually passed, at the third attempt, was on the establishment of Crown control rather than ownership. In Western Australia it was explained that the Rights in Water and Irrigation Bill was ‘drafted mainly on the lines of the Victorian and New South Wales measures’.12 The vesting clause of the Bill was described by the Minister as follows: It is first of all declared that the rights to the use and flow and to the control of the water at any time in any watercourse and in any lake, lagoon, swamp or marsh, and in any spring artesian wells and subterranean source of supply shall vest in the Crown. That practically covers the whole measure. We have machinery as to how we shall use the waters in the particular rivers, but the most important feature of the Bill is the fact that we take control of the rivers. Without that control irrigation on anything like a comprehensive measure is impossible.13

The Bill sought to vest rights to use and flow and control of water in the Crown. The opposition opposed the provision because no compensation was provided for the taking of water rights: ‘the rights of the pioneer must not be forgotten.’14

In 1912, the Bill passed the Assembly essentially unamended and was sent to the Legislative Council. The Legislative Council referred the Bill to a Select Committee, one of the members of which declared that the principal concern of the Committee was with the question of ‘the common-law rights, as regards running streams’. The Committee reported as follows:15 the enactment of such provisions would be regarded as a species of confiscation and would discourage the carrying out of private irrigation undertakings, from which increasingly valuable results are being obtained. … the Bill, if passed in its present form, by its disturbance of long existing and long recognised rights, would destroy confidence and create a feeling of uncertainty prejudicial to the healthy development of the producing industry.

[page 209] The Legislative Council adopted the report. In the result, the Council and the Assembly were unable to reach agreement on the desired amendments, and the Bill lapsed. The Bill was introduced again in 1913. Again it passed the Assembly but was rejected in the Legislative Council and lapsed. It was reintroduced in 1914 in essentially the same form. Agreement was reached between the two Houses in a compromise.16 The vesting provision contained in Part III was limited, at the insistence of the Legislative Council, to Irrigation Districts.17 Part III, ‘Rights in Natural Waters’, provided that the ‘right to the use and flow and to the control of the water at any time in any watercourse, and in any lake, lagoon, swamp or marsh, and in any spring, and subterranean source of supply’ vested in the Crown.18 The Bill finally received Royal Assent at the third attempt on 22 September 1914. 9.8 South Australia in 1919 was the only state ever to include the vesting of property in water. The vesting provisions referred to ‘the

property in, and the right to the use and flow and to the control of water’.19 But in 1990, South Australia deleted the explicit declaration of property, along with the right to the use and flow and to the control of water, in its revision of the Water Resources Act of that year. 9.9 The Northern Territory, having been under the administration of South Australia, adopted the phrasing of the South Australia legislation in its first Control of Waters Ordinance in 1938.20 The Northern Territory legislation continues to vest ‘the property in and the rights to the use, flow and control of all water’ in the Crown.21 It is today the only jurisdiction in Australia with a declaration of Crown property in water. 9.10 The Hydro-Electric Commission Act 1929 of Tasmania vested ‘the sole right to use water in lakes, falls, rivers or streams’ in the Hydro-Electric Commission, ‘subject to any rights lawfully held at the commencement’ of the Act.22 The Act did not purport to abolish riparian rights which had already accrued. Indeed, it provided for the purchase and compulsory acquisition of such rights.23 The Water Act of 1957 rephrased [page 210] the provision so as to vest a right in the Commission to ‘take the water of every river and lake’. In 1999 Tasmania amended the form of the vesting provision in the Water Management Act: ‘all rights to the taking of water from the water resources of Tasmania are vested in the Crown to be administered in accordance with this Act.’24 9.11 The water legislation of New South Wales applied in the ACT until the territory passed its own Water Resources Act in

1998. The Act included the vesting of ‘the right to the use and flow and to the control of the water’.25

Ground water 9.12 The earliest concerns with respect to ground water were expressed in the New South Wales Artesian Wells Act 1897. The Act sought to control the manner of construction, gather information and limit waste by the licensing of bores and the attachment of conditions. By 1906, concerns as to waste became more pronounced with the multiplication of bores, and increased controls over construction and requirements for information, such as well pressure, were imposed in that year in the Water and Drainage and Artesian Wells (Amendment) Act 1906 and in the 1912 Water Act. 9.13 Queensland experienced loss of flow problems at the same time as New South Wales and, in 1910, introduced legislation modelled on that of New South Wales. But the Queensland legislation adopted the formulation from the surface rights regime in also vesting control of ground water in the Crown. It was thus Queensland that in 1910 first vested ground water in the Crown. The Queensland legislation provided that:26 The right to the use and flow and control of water at any time … in an artesian bore, a sub-artesian bore or any other underground source of supply, vests … in the Crown.

9.14 Provisions vesting the right of use and flow and control of ground water in the Crown were subsequently adopted in New South Wales, Western Australia and Victoria. Tasmania’s 1999 vesting of all rights to take water in the Crown extends to ground water. The Northern Territory legislation vests ‘the property in and the rights to the use, flow and control of all water’ in the Crown.27 The water legislation of New South Wales applied in the ACT until the territory passed its own Water Resources Act in 1998. The Act included the vesting of ‘the right to the use and flow and to

the control of the water’,28 although it initially excluded ‘ground water under land the subject of a lease of Territory land granted before the commencement of this section’. South Australia never adopted such a vesting provision in relation to ground water. [page 211] 9.15 As with surface water, the vesting of rights in the Crown with respect to ground water met considerable opposition in legislatures. This opposition was founded in a concern to protect private property owners’ rights to take water and was exemplified in the early legislation of Western Australia. In 1912, the Labor Government in Western Australia sought to rely on the 1912 Interstate Conference on Artesian Water Report and follow the Queensland legislation in declaring Crown control over artesian bores. The Minister for Works explained:29 we want to take control of artesian bores, following the Queensland example, because we find that one man can have an artesian bore from which he gets more than he requires, and as a consequence he wastes a considerable quantity of water when possibly his neighbour is running short. It is just as possible to waste artesian supplies as it is to waste surface supplies. A conference recently held in the Eastern States of experts recommended that other States of Australia should follow the Queensland example and get control of artesian supplies, not with the desire to harass or interfere with the operations of those who have put down artesian bores, but simply to take control of them to prevent waste and give a guarantee to everyone that they can get a fair share of the waters underneath the earth as we do in the case of waters on the surface.

The 1912 Bill followed the pattern of the New South Wales and Queensland legislation. It purported to vest ‘artesian wells’ in the Crown. The Queensland legislation had also vested ‘any subartesian well and subterranean source of supply’ in the Crown. The Western Australian controls were confined to ‘artesian wells’, which were defined to exclude any well ‘from which the water does not flow naturally’.

The provisions of the Bill relating to artesian wells were opposed by the opposition because there should be no vesting in the Crown: In regard to artesian water, your Committee, in view of the conflicting opinions as to the practicableness or the wisdom of seeking to check the flow from artesian bores, is of opinion that there is no good purpose to be served by vesting the right in such waters in the Crown, and recommends that the powers of the Minister over artesian bores be limited to — (a) The issuing of licenses for the construction of new artesian wells, or the enlargement, deepening, or alteration of existing artesian wells. (b) The compelling of owners of artesian wells to furnish such reports and information as may be desired.30

When the Bill eventually passed, at the third attempt to secure the assent of the Legislative Council, the original proposals largely survived, but the phrase ‘subterranean source of supply’ was substituted for ‘artesian well’, and it was declared inapplicable to non-artesian wells.31 [page 212] 9.16 At the time of the first introduction by Victoria of controls on the use of ground water in 1969, the Minister, as with surface water, emphasised the denial of private rights by the vesting clause: [the] Bill hinges on this clause which is doing in relation to ground water what was originally done in 1886 in Deakin’s Irrigation Act in relation to surface water. The concept here is that the Crown must in fact own the water.

He subsequently stated that the vesting clause ‘clears away any other rights to ground water which may purport to exist’.32

Current provisions: foundation for water management 9.17

Today all jurisdictions, except South Australia and

Tasmania, declare that the right to the use and flow and to the control of surface and ground water is vested in the Crown. New South Wales — Water Management Act 2000 s 392: (1) the rights to the control, use and flow of (a) all water in rivers and lakes and aquifers, and (b) all water conserved by any works … (c) all water occurring naturally on or below the surface of the ground … (2) … are vested in the Crown, except to the extent to which they are divested from the Crown …

Queensland — Water Act 2000 s 19: All rights to the use, flow and control of all water in Queensland are vested in the State.

Victoria — Water Act 1989 s 7: The Crown has the right to the use, flow and control of all water in a waterway and all ground water.

Western Australia — Rights in Water and Irrigation Act 1914 s 5A: The right to the use and flow, and to the control, the water at any time in any — (a) watercourse; (b) wetland; or (c) underground water source, vests in the Crown except as allocated under this Act …

[page 213] Australian Capital Territory — Water Resources Act 2007 s 7: Subject to this act, the right to the use, flow control of all water of the Territory is vested in the Territory.

Northern Territory — Water Act 1992 s 9 (in addition to the phrasings found in most jurisdictions, the Northern Territory declares that the property in all water vests in the Crown): Subject to this Act, the property in and the rights to the use, flow and control of all water in the Territory is vested in the Territory.

Tasmania — Water Management Act 1999 s 7(2) (Tasmania has adopted a different declaration of rights of the Crown in accordance with the history of the provision in the state. It makes no reference to rights with respect to flow or to control of water): Except as provided by this Act, all rights to the taking of water from the water resources of Tasmania are vested in the Crown …

All the jurisdictions in Australia, except South Australia, consider that such a declaration is a foundation for the introduction of statutory schemes of control, management and appropriation of water resources.

Declarations of state sovereignty and control of state ownership The nature of water as a subject of control, not absolute ownership: imperium, not dominium 9.18 Do the declarations constitute declarations of the sovereignty of states to control, regulate and appropriate water resources, or do they vest absolute ownership in the states? Australian commentators have suggested that the declarations manifest state sovereignty rather than state ownership. Clark and Myers observed: Provided the particular powers conferred on the Crown are ample to carry out its objects, it would seem preferable to settle for a system of regulative intervention rather than invoke conceptual confusion by introducing superfluous notions of property.33

That conclusion finds support in the analyses of the High Court of Australia and the Supreme Court of the United States. The explanation lies in the nature of water as a subject of control, not absolute ownership: imperium, not dominium. The nature of water as a resource is of critical significance to society; its migratory nature, uncertain path, trans-boundary aspects and limited and uncertain availability in the present and future dictate that water is presumptively a proper subject for control [page 214] rather than absolute ownership. The judiciary, in the interpretation of legislation, have been reluctant to adopt the conclusion that such a resource is the subject of absolute ownership. The High Court of Australia has cited with approval Roscoe Pound’s explanation of why ‘things not the subject of private ownership are spoken of as being publicly owned’:34 We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are ‘owned by the state in trust for the people.’ It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium.

The High Court thereby emphasised the significance to society of resources such as water and suggested that the state declarations amounted to declarations of ‘guardianship for social purposes’ rather than ownership. The High Court continued the quotation from Roscoe Pound, which goes on to point out the distinct nature of resources such as

water, as contrasted with less critical, non-migratory and more certain resources: The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination. [Emphasis added.]

9.19 An obvious analogy to water is provided in the High Court analysis of state declarations of ‘property’ in wild game, the subject matter of which, like water, the common law has been reluctant to accept as susceptible to ownership. The quotation cited with approval above was made in just such a case: Yanner v Eaton. Walden v Hensler (1987) 163 CLR 561; 75 ALR 173 was an earlier case where a declaration of Crown ‘property’ in fauna in the Fauna Conservation Act 1974 (Qld) was held by the High Court not to render the taking or keeping of a bush turkey contrary to the Act ‘an offence relating to property’. The High Court declared that the object of the provision making such conduct an offence was ‘not to protect the Crown’s or any other person’s rights over or in respect of fauna but to protect fauna from destruction or control’.35 It was a ‘general conservation provision’.36 The court thereby held that for the purposes of that provision, [page 215] the declaration of Crown ‘property’ did not entail anything more than an assertion of Crown dominion and jurisdiction.37 The more recent ruling of the High Court in Yanner v Eaton was to like effect. The defence asserted a native title right to hunt and eat crocodiles in response to a charge of taking fauna without a licence or other authority under the Fauna Conservation Act 1974 (Qld). The state argued that the legislative assertion of property in

fauna in s 7 of the Act gave full beneficial or absolute ownership to the Crown and extinguished the native title right to hunt crocodiles. Section 7 provided: All fauna, save fauna taken and kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.

The High Court declared that ‘property’ referred merely to ‘the aggregate of the various rights of control by the Executive that the legislation created’ and not to absolute or full beneficial ownership: at [30]. The court emphasised the ambiguity of the term ‘property’ and examined the object and structure of the Act: at [17]–[21] and [85]. The High Court entered upon an examination of all of the provisions and the entire structure of the Act to determine the meaning of ‘property’. It was concluded that the Act did not generally contemplate possession of fauna. Reference was made inter alia to the shifting nature of the ‘property’ by provision for private rights, the migratory nature of fauna and the common law denial of ownership: at [22]–[26]. These elements are held in common with the nature of water. It was concluded that the Fauna Act did not contemplate ownership by the Crown (at [28]): In light of all these considerations, the statutory vesting of ‘property’ in the Crown by the successive Queensland Fauna Acts can be seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’.

The High Court there quoted the decision of United States Supreme Court in Toomer v Witsell 334 US 385 at 402 (1948) per Vinson CJ at [28]. Eminent United States water resources law professor F Trelease has observed, ‘We usually mean by “state ownership” that in a crowded world the social interest in the use and conservation of the water resources has become more important than some individual interests.’38 The High Court of Australia has most recently considered the question of whether the state declarations of the vesting of rights to the control use and flow of water vested ownership of the water

in the states in ICM Agriculture v Commonwealth [2009] HCA 51. Bore licences issued under the Water Act 1912 were replaced by aquifer access licenses under the Water Management Act 2000 of New South Wales. The holders of the licences brought proceedings arguing that the replacement of the licences represented an acquisition of property which was not on just terms contrary to Section 51(31) of the Commonwealth Constitution. The court emphasised the nature of underground water [page 216] as not being susceptible to conventional understandings of ownership, and the common law reasoning that denied absolute ownership to both surface water and underground water.39 The state vesting declarations were accordingly declared to constitute ‘an exercise of sovereignty in the sense that the rights so vested were based on the political power of the state’.40 Moreover: It is not right to describe the consequence of that vesting as giving the state ownership of, or property in, the groundwater. It is not right to do so because, as explained earlier, the difficulties and incongruities of treating water in the ground as the subject of property are insuperable.41

9.20 The United States Supreme Court has regarded state ownership of water as a ‘legal fiction’ and suggested it is no more valid than the ownership of wild game or fish. It is ‘but a fiction expressive in legal shorthand of the importance to its people that a state have power to preserve and regulate the exploitation of an important resource’: Sporhase v Nebraska (1982) 458 US 941 at 951. Such statements have been made by the United States Supreme Court in the context of the determination of the range of federal power over water resources in a state.

The historically uncertain extinguishment and divestment of private rights 9.21 Some historic uncertainty surrounded whether or not the state declarations of themselves extinguished and divested private rights to the use of water. The explanation lies in the regard and respect accorded existing private rights to water, and the limitation of state power to that which is necessary to accomplish the objects of the legislation.

The need for clear and plain language to extinguish private rights 9.22 It is a fundamental canon of construction of legislation that the proprietary rights of a subject may not be taken away without compensation unless there is unequivocal language to that effect.42 Clear and plain language is required to extinguish private rights, a fortiori if without compensation. The High Court of Australia has repeatedly given effect to the requirement. In Wade v New South Wales Rutile (1969) 121 CLR 177 at 18143 Chief Justice Barwick declared that ‘the courts are not entitled, and ought not, [page 217] to eke out a derogation of such private rights’. In CSR v Melbourne Harbour (1927) AC 343 at 358–360; (1926) 38 CLR 547 at 558–560, Lord Warrington concluded that there must have been an error in the wording in the legislation and thereby avoided the denial of private rights. In Clissold v Perry (1904) 1 CLR 363 at 376, Chief Justice Griffith rejected a construction that would in his view have made a statute ‘an Act for confiscation not compensation’. 9.23

Initially, lower courts placed great reliance on the

declarations of state powers over water, including the vesting of rights of use, in support of the extinguishment of private rights. The New South Wales Supreme Court concluded that the New South Wales legislation had abolished common law riparian rights to take water and its natural flows in Hanson v Grassy Gully Gold Mining Co (1900) 21 NSWLR 271 at 275 (FC): It cannot be denied that for years and years past the question of the rights of riparian owners in this country, where the conditions are so totally different from the condition of things in England, has been a source of almost insuperable difficulty. There has been a great deal of expensive litigation, and I suppose, for that reason, the Legislature passed this Act, in order to prevent riparian owners above and below from bringing actions against one another. If this Act does not aim to take the old common law rights from the riparian owners and vest them in the Crown, then I do not know what it was passed for not what it means. It was passed in the public interest to prevent litigation.

In that case Stephen J for the Full Court further declared at 275, making specific reference to the vesting clause: Although there are no words saying the riparian owners’ rights are ‘divested’, the section says these rights ‘vest’ in the Crown. I do not think the language of the Act could be clearer and plainly the rights of the riparian owners were divested and vested in the Crown.

But Stephen J pointed in support to the statutory redefinition of the common law riparian rights, declaring, ‘It is clear that it was the intention of the legislature to do away with the old rights of the riparian owners and thus with all the litigation.’ Hanson was followed in Dougherty v Ah Lee (1902) 19 WN (NSW) 8 and Attorney General v Bradney (1903) 20 WN (NSW) 247. The Queensland Land Court interpreted the analogous Queensland provisions as abolishing common law riparian rights and redistributing statutory rights: Shooter v Commissioner of Irrigation and Water Supply (1972) 39 QLLR 11.44 Dicta of the High Court had also been considered to support that construction of Queensland legislation. Beaudesert Shire Council v Smith (1969) 120 CLR 145 involved an action by the licensee under the state water legislation for interference with the flow of water. The basis of the action was the licence, but it was argued that ‘common-law

principles preserve the quality, the quantity and the ability to 44. (1972) 39 QCLLR 11. And see generally P N Davis, ‘“Nationalization” of Water Use Rights by the Australian States’ (1969) 9 UQLJ 1. [page 218] acquire’ the water authorised under the licence. The court concluded that the ‘scheme of the Water Acts’ denied the common law right to the flow of the water. But the reliance upon common law principles in support of an action for interference with a statutory licence renders the dicta of uncertain authority. 9.24 In 1955, High Court dicta had challenged such a conclusion. In Thorpe’s Ltd v Grant Pastoral Co (1955) 92 CLR 317 at 397, Fullager J rejected Stephen J’s conclusion in Hanson: This passage is open to several comments. For one thing, this intention to cure the disease by killing the patient is in itself a very curious intention to attribute to the legislature. I should have thought … that the real object of the Water Rights Act 1896, as revealed by the latter part of s 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the waters of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody’s rights, but it was necessary to give to the Crown, or to some statutory authority, over-riding rights to which private rights must, if need arise, give way. The effect given to the statute in Hanson’s Case [supra] means that a riparian proprietor has no remedy as of right if a river is dammed by an upper owner so that no water reaches him, or if it is polluted and poisoned by the refuse of a factory. There is much to be said for the view that it would be contrary to elementary rules of construction to give it to any such effect in the absence of clear and unmistakable language. [Emphasis added.]

Fullager J then suggested that Crown rights coexisted with the common law rights: The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights — not riparian rights — which are superior to, and may be exercised in derogation of, private riparian rights, but that,

until those new and superior rights are exercised, private rights can and do co-exist with them.

Fullager J’s conclusion is a testament to the difficulty of abolishing common law property rights and the strength of the maxim requiring clear and plain legislation to achieve that result. In Thorpe’s case, Webb J agreed with Fullager J as to the error of the Hanson case. The other judges thought it was unnecessary to decide or thought the question should be deferred until it could be fully argued. To like effect to Fullager J was Dixon J in Jones v Kingborough Corporation (1950) 82 CLR 282. He declared that the ‘bare vesting of a stream is not an apt or sufficient way of’ abolishing riparian rights, albeit in a context where riparian rights were expressly preserved. Dixon J examined a provision in local government legislation which vested certain rivers in municipal councils. He relied on Privy Council and English authority and declared that the ‘operation of statutory vesting is considered as confined to the purpose to be fulfilled’.

Conflict in state Supreme Court decisions 9.25 The dicta in Thorpe’s case was followed by the Supreme Court of Western Australia in the interpretation of the state water legislation. In the 1973 decision in Rapoff v Velios [page 219] (1975) WAR 27, a downstream riparian landowner sought to enjoin the obstruction and taking of water from a creek by an upstream riparian landowner. Virtue SPJ complained that the question of the continuance of common law riparian rights ‘was not argued at the bar as fully as I would like it to have been’, but in the end followed the reasoning of Fullager J in Thorpe’s case. In doing so he stressed the similarity of the New South Wales vesting

provisions to those in effect in Western Australia and concluded (at 31): the Act has not in fact abrogated the common-law rights of riparian owners which in fact continue to exist with the rights conferred on the Crown by virtue of the statute.

Similarly, in the 1983 decision of the Queensland Supreme Court in Nalder v Commissioner for Railways (1983) 1 Qd Rep 620 at 627, Kneipp J held that the vesting clause did not abrogate the common law right of riparian owner to flow which entailed ‘the right to have water carried away by the watercourse’. Kneipp J considered that Beaudesert Shire Council v Smith should be considered as limited to the abrogation of the common law rights of riparian owners to the use of water. ‘The considerable difference of judicial and academic opinion’ led the Supreme Court of South Australia in Reid v Chapman (1984) 37 SASR 117 (FC) to adopt a restrictive interpretation of the vesting clause. The court emphasised the particular provisions of the state legislation in concluding (at 122) that the ‘common-law rights to divert and take water, that is to say to make use of such water, are untouched by the Act’ with respect to the particular water source under consideration. 9.26 The contrary approach was adopted in the 1995 New South Wales Supreme Court decision in Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108. Cohen J began by recognising that: Hanson’s case has now stood … for 94 years. In my opinion it is not a matter for a judge of first instance to consider the correctness of a finding by a Full Bench of this Court on a matter of considerable significance to all persons whose property is bounded by or contains a river and where that decision has stood for such a long period of time.

Cohen J concluded (at 126) that the effect of the legislation ‘was to vest in the appropriate Crown body, and thus to divest from the riparian owner, those common-law rights’.

The High Court and extinguishment and divestment of private rights 9.27 Most recently, the High Court in ICM Agriculture v Commonwealth [2009] HCA 51 has seemingly adopted the position taken in Hanson’s case. French CJ, Gummow and Crennan JJ declared that: the reasoning of the Full Court of the Supreme Court of New South Wales in Hanson v The Grassy Gully Gold Mining Co, that the 1896 Act vested in the Crown the common law rights of riparian owners, is to be preferred to the slightly delphic observation

[page 220] of Fullagar J in Thorpes Ltd v Grant Pastoral Co Pty Ltd suggesting that riparian rights survived those vesting provisions.45

To similar effect, Hayne, Kiefel and Bell JJ observed that: there would seem to be much force in the view that Hanson’s case was rightly decided when it held the common-law riparian rights were abolished New South Wales by the Water Rights Act of 1896.46

The High Court held that the vesting of rights of control, use and flow of underground water in New South Wales in 1966 had divested the common law right to take underground water, as a step in an analysis that concluded that the replacement of a statutory right to take underground water by another statutory right did not amount to an acquisition of property on unjust terms.47 In the result, the most recent High Court authority would favour the extinguishing effect of the state declarations of rights to use water. Earlier decisions had gone both ways on the question of whether rights to use water had been extinguished (Shooter v Commissioner of Irrigation and Water Supply, but compare Rapoff v Velios and Reid v Chapman) and likewise with respect to flow of

water (Hanson v Grassy Gully Gold Mining Co and Beaudesert Shire Council v Smith, but compare Nalder v Commissioner for Railways). Significantly it has never been held, and the declarations do not expressly provide, that the right to the quality of water was extinguished.

United States and Canada 9.28 When such analysis has been conducted by state Supreme Courts in the United States to determine if compensation is payable for the divestment of private rights, the courts have always held that there was no divestment of private rights by the state declarations of ‘property’ in water for which compensation is payable. The Wyoming Supreme Court explained in Farm Investment v Carpenter 61 P 258, 265 (1900): By either phrase, ‘property of the public’ or ‘property of the state’ the state as representative of the public or the people, is vested with jurisdiction and control in its sovereign capacity … The constitutional declaration was not intended to interfere with previously accrued rights …

All the western states in the United States have enacted declarations of one form or another that water is the property of the state, the people or the public. The declarations of the property in water vesting in the state, the public or the people have been relied [page 221] upon to establish statutory systems of water allocation in each state, based at least in part upon a doctrine of appropriation. 9.29 There are decisions to like effect in the Supreme Court of Canada. British Columbia48 introduced statutory measures respecting rights to water before such measures were introduced

elsewhere in Canada. In 1892 the Water Privileges Act was passed. It followed the model of Victoria in Australia and vested the use of all water in the Crown. It exempted existing rights, statutory or otherwise. In Esquimalt Waterworks Co v City of Victoria (1906) 12 BCR 302, Duff J concluded that riparian rights were saved by the provision for existing rights. He demanded much clearer language to extinguish riparian rights than found in the Act. He observed that the 1892 Act: does not in unambiguous terms declare or enact that the pre-existing riparian rights, in respect of lands already granted by the Crown, are abrogated.49

To like effect is the Supreme Court of Canada’s decision in Upper Ottawa Improvement Co v Hydroelectric Power Commission of Ontario (1961) 28 DLR (2d) 276. In the course of consideration of an argument that the legislation had extinguished riparian rights, the Supreme Court of Canada declared: We are asked to say in the present matter that these ancient rights of the riparian owner, so long embedded in the common law, have been taken away by inference, a conclusion which I find it impossible to reach. Had the legislature intended that these rights should be restricted to any greater extent than has been done by the statute, it would, no doubt, have said so in clear terms.50

State sovereignty and control, not ownership: divestment of private rights of use 9.30 The primary conclusion is that the vesting clauses in and of themselves, without regard to the balance of the legislation, represent a declaration of state sovereignty and control. The vesting clauses do not amount to a declaration of absolute ownership. The only jurisdiction which retains a declaration of property in water is the Northern Territory. But the nature of water rejects the suggestion that such a declaration vests absolute ownership in the Crown. The highest courts of both Australia and the United States have shown extreme reluctance to construe

property as connoting absolute ownership. Moreover, the objects of the legislation can be accomplished without vesting absolute [page 222] ownership: the state may still regulate, control and provide for different schemes of allocation and appropriation of the resource without being absolute owner of water.51 9.31 It was said over a hundred years ago that: Although there are no words saying the riparian owners’ rights are ‘divested’, the section says these rights ‘vest’ in the Crown. I do not think the language of the Act could be clearer and plainly the rights of the riparian owners were divested and vested in the Crown.52

The High Court in ICM Agriculture v Commonwealth [2009] HCA 51 has seemingly, and belatedly, given effect to the understanding that the declarations in and of themselves have extinguished and divested private rights to the use and flow of water. The explanation for the historic uncertainty described above lay in the regard and respect accorded existing private rights to water, and the limitation of state power to that which is necessary to accomplish the objects of the legislation. Even though rights to use and flow of water may be divested, it would seem that the right to the natural quality of water is not extinguished. An action for pollution might still be maintained by a riparian owner. 9.32 The historic uncertainty of the effect of the state declarations of rights to water may be considered to have rendered the declarations unhelpful and unnecessary. South Australia reached that understanding. It dispensed in its contemporary legislation with such a declaration. The other jurisdictions have maintained their historic reliance on such declarations as

providing an affirmation of the strength and breadth of Crown rights over water. To reach the conclusion that a vesting clause has not of itself alone abolished private rights is not to suggest that the legislation has not otherwise achieved that effect. Private rights may have been in any event abolished in conjunction with other more particular, clear and plain provisions in the context of the structure and object of the Act. And that is the subject of the next chapter.

1.

See chapter 8.

2.

An invaluable reference which was relied upon with respect to the historical material was S D Clark and I A Renard, The Law of Allocation of Water for Private Use, Research Project 69/16, Australian Water Resources Council, Melbourne, 1972, Volume 1: The Framework of Australian Water Legislation and Primary Rights and Volume 2: Specific Water Management Problems. J Powell, Watering the Garden State, Allen & Unwin, Sydney, 1989, pp 98–100.

3. 4. 5.

6. 7.

The Water Conservation and Distribution Act of 1881 (Vic) s 48. The provision was continued in s 326 of the Water Act 1958 (Vic). First Progress Report Victorian Royal Commission on Water Supply, 1884, pp 54–55. Deakin sought to avoid the disputes and difficulties in the establishment of major water projects and irrigation schemes which had arisen in the Western United States. His recommendations had great influence in the United States and in Canada. See D Percy, Framework of Water Rights Legislation in Canada, University of Calgary, 1988, pp 7–9, and S Clark and I Renard, ‘The Riparian Doctrine and Australian Legislation’ (1970) 7 MULR 475 at 486 fn 52. Victoria, Parliamentary Debates, Legislative Assembly, 24 June 1886, p 426; see Clark and Renard, 1970, p 487. Victoria, Parliamentary Debates, Legislative Assembly, 24 June 1886, p 442.

8. 9.

Irrigation Bill 1886 cl 4. Victoria, Parliamentary Debates, Legislative Assembly, 7 July 1886, p 590 per Wrixon.

10. 11.

Clark and Renard, The Law of Allocation of Water for Private Use, Vol 1, pp 204–207; Clark and Renard, 1970, p 490. See also Water Rights Act 1896 (NSW) s 1. Clark and Renard, 1970, p 490.

12. 13.

WA Debates, Legislative Assembly, 19, 12, 19 Sept 1912, p 1855. Ibid, p 1857.

14.

Mr George, WA Legislative Assembly, Debaters, 24 Sept 1912, pp 1924 and 1926.

15.

WA Parliament V & P 1912 Vol 2, No A6.

16. 17.

WA Legislative Assembly, Debaters, 3 Sept 1914, p 1053. Ibid, p 1057.

18. 19.

Rights in Water and Irrigation Act 1914 (WA) s 4(1). Control of Waters Act 1919 (SA) s 4. The River Murray Waters Act 1935, which sought to ratify the interstate River Murray Waters Agreement, provided in s 22(1) that ‘the right to the use and flow and to the control in the state of South Australia of any water dammed, impounded, stored, or conserved by any works constructed or maintained under this Act shall vest in the Crown’.

20. 21.

Control of Waters Ordinance 1938 (NT) s 3. Water Act 1992 (NT) s 9(2).

22.

23.

Hydro-Electric Commission Act 1929 (Tas) s 49(1). The Local Government Act 1906 (Tas) s 209 had long ‘vested every river creek or watercourse within the limits’ of a water district in the municipal council, and declared that ‘subject to the previous existing rights of the riparian proprietors to the use of the water … the Council shall have the absolute control and regulation … of the supply of water’. Hydro-Electric Commission Act 1929 (Tas) s 49(2), (3) and (4).

24. 25.

Water Management Act 1999 (Tas) s 7(2). Water Resources Act 1998 (ACT) s 13.

26. 27.

Water Rights and Water Conservation and Utilisation Act 1910 (Qld) s 5. Water Act 1912 (NSW) s 4B, ‘subsurface water’; Rights in Water and Irrigation Act 1914 (WA) s 5A, ‘underground water source’; Ground Water Act 1969 (Vic) s 47; Water Management Act 1999 (Tas); Water Act 1992 (NT) s 9(2).

28. 29.

Water Resources Act 1998 (ACT) s 13. The exclusion was removed in 2007. WA Legislative Assembly, Debates, Hansard, 19 Sept 1912, p 1857.

30.

Report of Select Committee of Legislative Council, 1912, para 7, WA V & P Vol 2, No A6. Male, MP (Kimberly), WA Hansard, 26 Sept 1912, pp 2032–2033.

31. 32.

33.

Victoria, Parliamentary Debates, Legislative Assembly, 23 October 1968, p 1197, and 19 March 1969, p 3327; S Clark and A Myers, ‘Vesting and Divesting: The Victorian Groundwater Act 1969’ (1969) 7 MULR 240. Clark and Myers, 1969, p 256.

34. 35.

In Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 at [29]. (1987) 163 CLR 561 at 575; 75 ALR 173 at 183 per Brennan J.

36. 37.

(1987) 163 CLR 561 at 583; 75 ALR 173 at 189 per Deane J. See further R Bartlett, Native Title in Australia, 3rd edn, LexisNexis, Sydney, 2015, [19.78]–[19.83].

38.

F Trelease, ‘Government Ownership and Trusteeship of Water’ (1957) 45 Californian Law Review 653. ICM Agriculture v Commonwealth [2009] HCA 51 at [55]–[57] per French CJ, Gummow and Crennan JJ and at [109]–[114] per Hayne, Kiefel and Bell JJ.

39.

40. 41. 42.

43. 44. 45. 46. 47.

ICM Agriculture v Commonwealth [2009] HCA 51 at [54] per French CJ, Gummow and Crennan JJ. ICM Agriculture v Commonwealth [2009] HCA 51 at [153] per Hayne, Kiefel and Bell JJ. Commonwealth v Hazeldell [1918] 25 CLR 552 at 556–557, 562–563 and 567–568; Central Control Board v Cannon Brewery [1919] AC 744 at 754–755 per Atkinson LJ. And see ICM Agriculture v Commonwealth [2009] HCA 51 at [176] per Heydon J dissenting. See also Windeyer J at 185 and 196–197. The legislation was given a restrictive interpretation. (1972) 39 QCLLR 11. And see generally P N Davis, ‘“Nationalization” of Water Use Rights by the Australian States’ (1969) 9 UQLJ 1. ICM Agriculture v Commonwealth [2009] HCA 51 at [54] per French CJ, Gummow and Crennan JJ, and see at [72]. ICM Agriculture v Commonwealth [2009] HCA 51 at [116] per Hayne, Kiefel and Bell JJ.

48.

ICM Agriculture v Commonwealth [2009] HCA 51 at [69]–[71] per French CJ, Gummow and Crennan JJ and at [144] per Hayne, Kiefel and Bell JJ. See R Bartlett, Aboriginal Water Rights in Canada, University of Calgary, 1988; D Percy, Framework of Water Rights Legislation in Canada, University of Calgary, 1988. See also Cook v City of Vancouver [1914] AC 1077 at 1082 (Privy Council).

49. 50.

(1906) 12 BCR 302 at 322–323 (Supreme Court Canada). (1961) 28 DLR (2d) 276 at 289 per Locke J.

51.

The state may also levy licence fees in accordance with the quantity of water allocated, provided it is related to conservation of the resource: Harper v Minister for Sea Fisheries (1989) 63 ALJR 687. Hanson v Grassy Gully Gold Mining Co (1900) 21 NSWLR 271 at 275 (FC) per Stephen J.

52.

[page 223]

10 THE EXPRESS ABOLITION AND STATUTORY DISPLACEMENT OF COMMON LAW RIGHTS TO WATER The problems of the common law 10.1 The common law did not recognise absolute ownership of water in any form. However, it did recognise the riparian right to take and use water flowing in a known and defined channel and an entitlement to that water being free from pollution. The common law also recognised the landowner’s right to take and use water, free from pollution, which did not flow in a known and defined channel, that is, diffused surface water and most underground water, although the right entailed no protection against appropriation of that entire water supply by a neighbouring landowner. Chapter 8 detailed the fundamental problems the common law regimes presented for modern Australian society, in particular: The failure to treat water as a unified resource prevented integrated water management. The legal barriers to the transfer of water rights, the lack of quantification of the amount of water subject to such rights, the lesser proprietary status of riparian rights and of the right of capture and the lack of security with respect to the right of

capture all contributed to problems in the operation of an efficient market in water rights. The limitations on riparian rights and the lack of security with respect to the right of capture were and are incompatible with the development of industry agriculture and infrastructure. The rule of capture with respect to diffused surface water and most underground water allows not merely economic waste but also physical waste, and is inconsistent with a regime of environmental sustainability. 10.2 The common law regimes did have elements that might be retained or codified: the regard for environmental sustainability and natural flow under the riparian rights regime with respect to water flowing in defined channels; the protection of a right to water free from pollution; and the regard and priority accorded domestic uses. [page 224] These elements indicated that abolition of the entire common law regimes was not necessarily required, although substantial displacement was dictated. This chapter examines the degree to which the common law regimes have been abolished or displaced by legislation.

The effect of legislative declarations vesting all rights to control use and flow in the Crown 10.3 As considered in chapter 9, all jurisdictions except South Australia have declarations which purport to vest rights over water

in the Crown. The classic form of the declaration is that of the vesting of ‘all rights to the control, use and flow’ of water. The declarations do not purport to vest absolute ownership in the Crown, and had no such effect, but refer to the vesting of use and flow. But the effect on private rights of a declaration of the vesting in the Crown of all rights to use and flow of water was historically of uncertain effect. Judicial consideration of the declarations had resulted in conflicting decisions. The principles of interpretation demanding clear and plain language to extinguish private rights and the limitation of state powers and rights to that which is necessary to accomplish the objects of the legislation had been relied on to deny the extinguishment and divestment of private rights. But more recently, as explained in chapter 9, the High Court in ICM Agriculture v Commonwealth [2009] HCA 51 has seemingly given effect to the understanding that the declarations in and of themselves have extinguished and divested private rights to the use and flow of water, although even if private rights to use and flow have been extinguished by such declarations, it seems that the right to the natural quality of the water has not been extinguished in such manner. Greater certainty and a conclusion as to the abolition and displacement of all aspects of the common law regimes must depend on examination of the entire structure of the legislation and on the particular provisions respecting private rights.

The express abolition and reservation of common law rights Express abolition 10.4 Victoria, Tasmania, South Australia and New South Wales have expressly abolished some aspects of the common law rights to water. The Victorian provision is by far the most comprehensive

abolition. The comprehensive nature of the provision is significant in the manner that it lists the salient aspects of common law rights to water, highlighting how far the provisions of the other states fall short of comprehensive abolition. The rights to water conferred by or under this Act on a person who has an interest in land replace any rights — (a) to take or use water; or (b) to obstruct or deflect the flow of water; or

[page 225] (c) to affect the quality of any water; or (d) to receive any particular flow of water; or (e) to receive a flow of water of any particular quality — that the person might otherwise have been able to enforce against the Crown or any other person because of, or as an incident to, that interest.1

The provision seemingly provides that common law rights to take or use water and to the flow and quality of water are replaced by the statutory rights conferred by the Act. The reference to rights that any ‘person might otherwise have been able to enforce’ encompasses such common law rights. The provision would seem effective to displace all common law riparian rights. Although the language of ‘flow’ is less appropriate for the abolition of aspects of the common law right of a landowner to capture diffused surface water and ground water, ‘flow’ is defined to include ‘discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow’. Subsection 8(7) is accordingly apt to abolish the right to take or use diffused surface water and ground water, and subpara 8(7)(e) would seem, with the expansive definition, to displace the right of such a landowner to receive diffused surface water and ground water free from pollution. Subsection 8(7) dictates such a result despite the declared purpose of the Act being ‘to continue in existence and

protect all public and private rights to water existing before the commencement’ of the Act.2 The meaning of s 8(7) was considered at length in Ashworth v Victoria [2003] VSC 194 and a ruling made that was consistent with the above analysis. Gillard J held that the common law right to use diffused surface water and ground water, collected in a dam, was abolished by the subsection. This was despite the recognition that: until the recent amendments, land owners have always had the right to store and use rainwater and any other water that occurred or flowed on their land otherwise than in a waterway or bore for any use they thought fit.3

Section 8(7) ‘makes clear that his common law rights no longer exist in respect of the rights to water specified in the subsection’.4 Argument that the section should be declared inapplicable because the entitlement to diffused surface water and ground water should be characterised as ‘privileges’ rather than ‘rights’, on account of their limited enforceability, was rejected. The public interest in the regulation of water use was emphasised: It is clearly in the interests of the public that water use is regulated to ensure that the precious resource is available to all and the effect of drought is minimised. Water is one of the few necessities of life.5

[page 226] 10.5 The Tasmanian legislation explicitly abolishes ‘all rights existing at common law … to the flow of, or for the taking of, naturally occurring water’.6 But the legislation does not abolish the common law entitlement to receive a particular quality of water. The South Australian provision uses similar language to that of Tasmania. But although the South Australian legislation explicitly abolishes ‘rights at common law in relation to the taking of naturally occurring water’,7 it does not refer to rights of flow.

The taking of water is broadly defined in the legislation of both states so as to include all manner of gathering surface and ground water. The definition also extends so as to prohibit any diversion of any water. The legislation of both states abolishes rights to take, and effectively to use, all naturally occurring water. The Tasmanian legislation, unlike that of South Australia, also abolishes the common law right to the flow of water. Neither state has explicitly abolished common law rights to receive a particular quality of water. In neither state could a landowner rely on the common law right to take water for the purpose of collecting water for use. But a landowner in South Australia could rely on the common law right to flow, and, in both states, to a particular quality of water, to restrain another from interfering with the water supply. 10.6 The New South Wales provision is unusual because it is restricted to the abolition of common law riparian rights, with respect to surface water: Any right that the owner of riparian land would, but for this section, have at common law with respect to the flow of any river, estuary or lake through or past the land, or to the taking or using of water from any such river, estuary or lake, is hereby abolished.8

As with the legislation of South Australia and Tasmania, there is no abolition of the right to a particular quality of water. The abolished rights are those with respect to the taking or using of the water and its flow. 10.7 Western Australia has barred action against the Crown or its agencies arising from any violation of the right to flow or flooding, but has provided for compensation to be otherwise determined.9

Express reservation 10.8 Most exceptionally, the ACT in the past expressly reserved common law rights and entitlements to water:

Except as expressly provided by this Act, nothing in this Act shall be taken to affect any civil right or remedy available to a person in respect of conduct to which this Act applies.10

[page 227] The recognition by the legislation of existing common law rights to access ground water was acknowledged in Environment Protection Authority v Rashleigh [2005] ACTCA 42 at [20] per Gray, Connolly and Marshall JJ. The significance of the subsection was diminished by the proviso which allowed for express provision to the contrary. The express reservation was removed in the Water Resources Act 2007.

Displacement of common law rights to take by imposition of licence or other statutory authority 10.9 All jurisdictions, except South Australia, have enacted a general prohibition on the exercise of rights to take water without a licence or other statutory authority. But all jurisdictions also provide in the legislation for the exercise of various rights, in particular domestic rights and watering stock, by way of exception, without a licence. The statutory rights of landholders parallel those which were exercisable at common law. Even if common law rights were not considered to be abolished, they would only be exercisable to the extent permitted by statute. They have accordingly been effectively displaced by the legislation. 10.10 The form of the prohibition in each jurisdiction takes different forms, but all effectively require either a licence or other statutory authority with respect to the taking of water. For example, the New South Wales legislation provides that a person must not take water from a water source otherwise than in

accordance with an access licence.11 Exceptional provision is made for the taking of water pursuant to a ‘basic landholder right’.12 Provision is also made that ‘the State’s water rights prevail over any authority conferred by or under any other Act or law, except to the extent to which this or any other Act expressly so provides’.13 The legislation makes clear that statutory authority is required. 10.11 The legislation to such effect in the other jurisdictions is: Queensland — must be authorised under the Water Act 2000 or other legislation to take, supply or interfere with water;14 Tasmania — must have a licence or some other authority under the Act or other legislation to take, defined so as to include diversion, water;15 Victoria — must be authorised under a water share or some other statutory authorisation to take water from the waterway and aquifer.16 Victoria has of course expressly provided that the statutory rights replace any common law rights to take, use or divert water or to receive any particular flow or quality of water; [page 228] Western Australia — must be authorised under the Act or other legislation or have a licence issued under the Act to take water in a proclaimed or prescribed area or any artesian underground water;17 Northern Territory — must hold a licence or be authorised to take or use surface water under the Act, or hold a licence to take ground water;18 and Australian Capital Territory — must hold a licence or other authority under the Act to take water.19 It was held that ‘all landholders require a licence to operate a bore to access ground water’,20 even while acknowledging that the Act had not abolished the common law right to extract ground water.

10.12 South Australia is the only jurisdiction not to prohibit the taking of water without a licence or other statutory authority.21 But South Australia has of course expressly abolished all common law rights in relation to the taking of water. There is no entitlement to take water outside of the legislation. South Australia makes substantial provision for the taking of water, including by landowners, and in that way common law rights, having already been abolished, are replaced.

Abolition or displacement of common law right to take in all jurisdictions, but retention of common law rights to flow and quality in some 10.13 In conclusion, it may be stated that all jurisdictions have either expressly abolished or by particular provision displaced the common law right to take naturally occurring water. However, Victoria has gone much further than the other jurisdictions. Victoria has gone so far as to abolish common law rights to receive any particular flow or quality of water with respect to both surface water and ground water. Of the other states, Tasmania has expressly abolished all common law rights to the flow of surface and ground water, while New South Wales has expressly abolished common law rights to the flow of surface water. With respect to the abolition or displacement of the common law right to take naturally occurring water throughout Australia, the common law rule governing the right to take such water was the fundamental problem in the development of a contemporary water management regime. The challenge of the legislation is to provide such a regime. [page 229]

The common law did have elements capable of being retained or codified. Thus there is only limited express interference with the common law right in relation to the flow of surface water and its regard for environmental sustainability. Only in Victoria does the legislation seek to abolish the right to water free from pollution. And all jurisdictions have given recognition and priority, albeit in statutory form, to ‘basic land holder’ and domestic uses.

1.

Water Act 1989 (Vic) s 8(7).

2. 3.

Water Act 1989 (Vic) s 1. [2003] VSC 194 at [76] per Gillard J.

4. 5.

Ibid at [87]. Ibid at [20].

6. 7.

Water Management Act 1999 (Tas) s 7(1). Natural Resources Management Act 2004 (SA) s 124(8).

8. 9.

Water Management Act 2000 (NSW) s 393. Rights in Water and Irrigation Act 1914 (WA) ss 35 and 36.

10. 11.

Water Resources Act 1998 (ACT) s 12(1). Water Management Act 2000 (NSW) s 60A.

12. 13.

Water Management Act 2000 (NSW) s 52. Water Management Act 2000 (NSW) s 392(3); Ecclestone v O’Keefe [2007] NSWSC 159 at [13]; Howard v Turner and Petersen [2015] NSWCA TAD 247 at [21]–[28].

14. 15.

Water Act 2000 (Qld) s 808. Water Management Act 1999 (Tas) s 54.

16. 17.

Water Act 1989 (Vic) ss 33E and 289. Rights in Water and Irrigation Act 1914 (WA) s 5C.

18. 19.

Water Act (NT) ss 44 and 59. Water Resources Act 2007 (ACT) s 28.

20.

Environment Protection Authority v Rashleigh [2005] ACTCA 42 at [20] per Gray, Connolly and Marshall JJ. Although water must not be taken contrary to the provisions of a natural resources management plan — Natural Resources Management Act 2004 (SA) s 124(7).

21.

[page 231]

11 LANDHOLDER RIGHTS: RIGHTS EXERCISABLE WITHOUT A LICENCE BY LANDHOLDERS AND OTHERS The common law problems 11.1 At common law the riparian landowner had a right to take and use surface water flowing in a known and defined channel, as long as the use was connected with the riparian tenement. This included the right to take and use water for domestic purposes, including watering cattle. Use for such a purpose was permitted even to exhaust the water supply. The right extended to other extraordinary purposes, but such use had to be reasonable and not bring about any sensible diminishment of the flow. By contrast, there were no limits on the right of a landowner to take from his or her land water found beneath it, whether related to connection with the overlying land, reasonable use or a limit on the degree of depletion. Similarly, the House of Lords1 refused to suggest any limits on the appropriation of diffused surface water, resulting in Western Australia in judicial allowance of the use of such water for commercial irrigation.2 The problems presented by the common law, and referred to in the earlier chapter 8, included:

the failure to treat water as a unified resource enabling integrated catchment management; the inability to effectively transfer rights to take and use water separately from the land; the absence of security because of the absence of a right of enforcement against neighbouring landowners with respect to underground and diffused surface water; the uncertainty as to the amount of water that might be taken, and with respect to riparian rights, uncertainty as to the purposes for which it might be taken; the lesser proprietary status of riparian rights and the right of capture; the allowance of waste by, and the inconsistency with, environmental sustainability, of the rule of capture; and as a general result, incompatibility with the contemporary development of industry, agriculture and infrastructure. [page 232] The statutory rights introduced by the legislation and exercisable without a licence should, as far as possible, not continue the problems. This chapter considers how far the statutory rights exercisable without a licence avoid the problems of the common law and provide a regime more compatible with contemporary social and economic development.

Rights exercisable without a licence Who might exercise rights? At common law 11.2 At common law, rights to water were fundamentally grounded, as might be expected in the pragmatic evolution of the

common law, in lawful access to the land from which location the water might be taken. The common law did not wish to encourage trespass by those who would seek to take and use water. It was explained that the right was to ‘the water to which the situation of his property gives him access’.3 But that access, in the case of riparian rights to the water in a watercourse, had to be ‘entirely derived from his possession of land abutting on the river’.4 No allowance was made for rights of non-riparian owners or occupiers, and certainly not the public. The regime governing ground water and diffused surface water was the law of capture. Exercise of the right to take such water depended upon lawful access, whether by ownership, occupation or similar right, to a location where the water could be extracted without committing trespass. There was no public right to ground water or diffused surface water.

Owner and occupier: in all jurisdictions 11.3 The legislation of all jurisdictions5 continues the rights of owners and occupiers to take and use water, whether riparian, ground water6 or diffused surface water,7 without a licence for the purposes described below, in particular, domestic purposes and watering stock. Victoria and Tasmania also confer a right to take water from a waterway on a person who is the occupier of ‘land that would be a riparian tenement but for the existence of [page 233] the Crown reserve’.8 A similar result arises in Western Australia.9 In Western Australia, the right to take and use ground water is not described in terms of occupation of the land, but rather imposes a requirement of lawful access.10 South Australia appears at first sight to be an exception to the general pattern of legislation. It provides in general terms that ‘a

person who has lawful access to a watercourse, lake or well may take water … for any purpose’.11 But a requirement of a water allocation is then imposed with respect to prescribed water sources, and if the water source is not prescribed, a requirement of no detrimental impact is imposed unless the water is taken by the occupier of the land and is used for domestic purposes or for watering stock.12 The requirement of lawful access with respect to ‘a watercourse, lake or well’ is displaced by the requirement of occupation. The requirement with respect to diffused surface water is always that of occupation. In both Victoria and Western Australia, the Minister is empowered to restrict the taking of water under statutory landholder rights to protect water resources.13

Rights to domestic and stock uses in others: ‘public’ rights in those with rights of access 11.4 All jurisdictions except New South Wales extend limited rights of use to others. In New South Wales, only owners or occupiers of land holdings are entitled to exercise domestic and stock rights with respect to riparian waters and ground water, and harvestable rights with respect to diffused surface water.14 Waterway 11.5 In the Australian Capital Territory, Northern Territory, Queensland and Tasmania, a right in others is provided, described as a ‘public right’ in the Northern Territory, in a ‘person’ to take water from a waterway for watering travelling stock and for some domestic purposes (‘camping purposes’ in the Australian Capital Territory and Queensland, and ‘casual use’ in Tasmania).15 The Northern Territory legislation makes explicit what is in any event implicit, however: that such a ‘person’ must have a right of lawful access. Victoria and Western Australia allow broader usage, for domestic

purposes or watering stock, but require the ‘person’ to have ‘access … by a public road or reserve’.16 In South [page 234] Australia, a non-occupier with lawful access may take water from an unprescribed waterway provided there is no detrimental impact on the rights of another to take or enjoy the water.17 Ground water 11.6 The Queensland and Victorian provisions extend not only to a waterway but also to ground water (a spring in Queensland and a bore in Victoria). In Western Australia and Queensland, rights in non-occupiers are provided to take water from non-artesian or sub-artesian wells. The Western Australia provision refers to ‘a person’ taking ‘water from a non-artesian well … to which the person has lawful access’.18 In Queensland, any ‘person’ may take ‘overland flow water or take … sub-artesian water for any purpose unless’ there is some promulgation to the contrary. The requirement of lawful access is explicit in Western Australia, but is implicit in Queensland. In South Australia a non-occupier with lawful access may take water from a well provided there is no detrimental impact on the rights of another to take the water from the same underground aquifer.19 Diffused surface water 11.7 Only Queensland provides an explicit right in nonoccupiers to take diffused surface water, subject, however, to any promulgation to the contrary.20

Permitted uses

Domestic purposes and watering stock 11.8 All jurisdictions have followed the pattern of the common law riparian right as to the uses of water permitted without a licence to the landholder. Accordingly, the right extends to domestic purposes, including irrigating a garden and watering stock.21 The area of garden permitted to be irrigated may vary from 0.25 ha to 2 ha in extent.22 New South Wales seems to be an exception in as much as its definition of ‘domestic consumption’ refers to ‘consumption for normal household purposes in domestic premises situated on the land’, and would seem not to contemplate use of water in [page 235] a garden. However, the government information bulletin suggests that it includes household gardens.23 A partial exception is Western Australia, where the right does not extend to irrigation of a garden if the land was alienated after the commencement of amendments in 1984;24 also, a riparian landowner may take water for any use in unproclaimed areas in the state if the flow is not thereby sensibly diminished.25 Prime facie South Australia permits a person with lawful access to take water from a watercourse, lake or well, and the occupier of land to take diffused surface water, for any purpose.26 However, if the watercourse, lake, well or surface water is prescribed, a water allocation is required. If not prescribed, water cannot be taken from a watercourse, lake or well if to do so ‘would detrimentally affect the ability of another person to exercise a right to take water from the watercourse, lake or … acquifer’ or would detrimentally affect the enjoyment of the amenity of water of the riparian landowner. The legislation substitutes the general criteria of ‘detrimental affect’ for more specific restrictions as to use, in comparison to those defined by common law and legislation in

other jurisdictions. But the limitation of ‘detrimental affect’ or the requirement of the licence does not apply to a riparian landowner or to an occupier with respect to water taken from an adjoining watercourse or lake, or a well on the land, for domestic purposes or watering stock.27 Moreover, the requirement of a licence is dispensed with in prescribed areas with respect to the taking of surface water by an occupier for domestic purposes or for watering stock. In the result, South Australia has legislated a form of the common law riparian regime in unprescribed areas, providing for ordinary uses, that is, domestic purposes and watering stock, and for extraordinary uses, which were only permitted at common law if there was no sensible diminishment. The significance of the South Australian provisions is, of course, that the regime is applied to water flowing in a known and defined channel, diffused surface water and ground water.

Limitations on use applied to both water flowing in a known and defined channel and ground water 11.9 Several jurisdictions, as in South Australia, apply limitations on use of ground water that were at common law only applied to water flowing in a known and defined channel. The general result is that the right to take ground water without a licence, as with water flowing in a known and defined channel, is restricted to domestic purposes, watering stock and irrigating a small garden. The same restrictions are applied to both sources of water. For example, the Victorian provision refers to the ‘right to take water … [page 236] for … domestic and stock use from a waterway or bore …’.28 The other jurisdictions which provide to like effect are New South Wales and the Northern Territory.29

Lesser controls on ground water use: Queensland, Western Australia and Tasmania 11.10 Queensland, Western Australia and Tasmania apply lesser controls on ground water use. In Queensland, an owner of land may take water from a spring for stock or domestic purposes, but there are no restrictions on the right to take sub-artesian water unless promulgated.30 In Western Australia, the construction of a well requires a licence.31 If a licence is granted to construct a well, conversely to the Queensland provisions, water from a non-artesian well in a proclaimed area may only be used for domestic use and watering stock.32 But there are no such restrictions on use of water from an artesian well, though, of course, restrictions may be imposed by the licence allowing the construction of the well.33 Moreover, ‘water flowing from any spring’ which rises on the land is not subject to any controls until it has passed beyond the boundaries of the land, unless the spring is prescribed.34 The Tasmanian provision provides that ‘an owner or occupier of land may take groundwater from the land for any purpose’ unless contrary to a ground water area order or water management plan.35 The common law rule of capture of ground water has not been generally restricted in Tasmania.

No right to ground water use without a licence in Australian Capital Territory 11.11 In the Australian Capital Territory, a landowner has no right to take ground water at all without a licence.36

Generally no limits on use of diffused surface water unless prescribed 11.12 The general position is, as was the common law, that there are no limits on the uses to which diffused surface water might be

put. The clearest positions are those of Tasmania, Victoria and the Northern Territory. In Tasmania, ‘an owner or occupier of land may take dispersed surface water from the land for any purpose’.37 [page 237] In Victoria, rainwater or other water that occurs or flows, not in a waterway or bore, ‘may be used for any purpose and on any land’.38 The Northern Territory is to like effect. The legislation imposes no restrictions on the use of diffused surface water.39 The restrictions on use imposed by the legislation are confined to water flowing in a waterway or ground water. Diffused surface water does not constitute water flowing in a ‘waterway’. In all jurisdictions, diffused surface water is understood as water not flowing in a waterway.40 In Queensland, South Australia and Western Australia, the legislation allows for promulgation, proclamation or prescription to limit the use of the diffused surface water to domestic purposes or watering stock. Thus, in Queensland, a person may take overland flow water for any purpose unless a contrary moratorium notice or water resource plan has been made.41 If there is such promulgation, an owner of land may still use such water for stock or domestic purposes.42 South Australia and Western Australia have similar regimes, whereby diffused surface water may be taken for any purpose in an unprescribed or unproclaimed area, but elsewhere a restriction to domestic purposes or watering stock applies. In South Australia, the legislation provides that in unprescribed areas, ‘the occupier of land is entitled to take surface water from the land for any purpose’.43 If the area is prescribed, a licence is required by an

occupier to take surface water unless it is used only for domestic purposes or for watering stock.44 In Western Australia, the taking and use of ‘water in any [unprescribed] wetland’, ‘wetland’ being defined so as to exclude a watercourse, is not restricted provided the wetland is wholly within the boundaries of the land of the owner or occupier.45 If the wetland is not wholly within the boundaries or if it is prescribed, the water may be taken only for domestic uses, watering stock and, with respect to land alienated before 1984, a right to irrigate a garden.46 11.13 New South Wales provides for a ‘harvestable right’ in harvestable right areas. An owner or occupier may construct ‘a dam for the purpose of capturing and storing [page 238] rainwater run-off’ and use the water in accordance with the area harvestable right order.47 The orders limit landholders to ‘10% of the average regional rainwater run-off on the property’. The government has explained that ‘the harvestable right is intended to satisfy essential farm needs such as stock and household water’, but recognising that there is no limit on use in the legislation or orders, ‘can be used for any purpose including commercial irrigation. However, the allowable capacity is unlikely to support a significant crop.’48 In the Australian Capital Territory, diffused surface water may only be taken by the occupier without a licence for domestic purposes or watering stock.49

Use on the land 11.14 The restrictions on the use of water for specified purposes, in particular domestic purposes and watering stock, confine the use of water to the land from where the water has been taken. No such restriction arises where the water may be used for any

purpose, but, of course, such use is generally only permitted with respect to ground water in unproclaimed areas and diffused surface water.

Emergencies and firefighting 11.15 The fire services legislation of most jurisdictions provides for access for fire brigades and authorities to water for the purpose of fighting fires. For example, the Country Fire Authority Act of Victoria provides that the chief officer of the fire brigade may ‘may enter or give directions for entering any land or premises and may take or cause to be taken water from any waterway, lake, lagoon, bore, dam, tank’.50 But the water legislation in some jurisdictions also provides for access to water by any person for the purpose of fighting fires or in other emergencies. The Queensland legislation provides that any person may ‘take water for a public purpose in an emergency situation’ or ‘for fighting a fire’.51 There is no reference to the need for a right of access, and it would seem inconsistent with the intent of the provision for such a right to be required. To like effect is a provision in Tasmania.52 Western Australia also provides for the right of any person to take water for the purpose of firefighting, but only if the person has a right of lawful access.53 [page 239]

A quantitative limit in Western Australia where supply augmented 11.16 Where the volume of water in any watercourse or wetland is augmented by the introduction of water by works constructed for that purpose in Western Australia, the rights without a licence to take water in that watercourse or wetland can be limited by local bylaws. If not so limited, a quantitative limit of 14 kilolitres per day for domestic use and watering stock and in respect of

every kilometre of frontage to the watercourse or wetland, and 8500 cubic metres per annum for the irrigation of a garden, applies, not exceeding the amount of water that would be available to the person and to which the person would be so entitled but for the augmentation.54

Common law problems partially addressed 11.17 The examination of the rights exercisable without a licence reveals the partial perpetuation of the historic and common law pattern of the water rights regimes, but with some significant changes, particularly as to use. The rights are still fundamentally grounded in lawful access to the land from which location the water may be taken, and in particular the rights of the owner and occupier. One change has been the right to take water from a waterway based on a right of access less than possession, but such might be said to have merely ameliorated that excessively rigid requirement for the exercise of riparian rights. Rights still cannot be effectively transferred separately from the land, but that may be said to reflect the limited nature of the rights, which are in any event directed primarily only to use upon the land for domestic purposes and watering stock. Significant changes have been made with respect to the uses to which water may be put. The general position is that riparian water and ground water may only be used for the specified purposes, in particular domestic purposes and watering stock. The general position denies the use of riparian water for an extraordinary purpose, even if there is no sensible diminishment, and abrogates the use of ground water under the law of capture for any purpose whatsoever. However, there are exceptions. South Australia and Western Australia continue to allow the use of riparian water for any purpose in unprescribed areas if there is no sensible diminishment of the flow. Western Australia, Queensland and Tasmania

continue to allow ground water to be used for any purpose if not otherwise prescribed. The particular significance of the changes is the control placed upon the use of ground water and the recognition thereby of the integrated nature of water resources. Generally, no limits have been placed upon the use of diffused surface water, presumably because of the encouragement thereby lent to measures for the recovery and storage of such water. The harvestable right regime in New South Wales reflects such a policy. The statutory rights conferred without a licence provide some greater security and possibility of enforcement against neighbouring landowners with respect to ground water. [page 240] But uncertainties as to the amount of riparian water, ground water or diffused surface water that may be taken remain. The difficulties of transferability and quantification ensure a lesser proprietary status with respect to those rights, just as at common law. In summation, the statutory rights and the controls placed upon water use do not resolve the problems of allowing for use of water in contemporary economic and social development. But they do make room for a system of licensing such use — the subject of the next chapter.

1.

Chasemore v Richards (1859) 11 ER 140 at 149; 7 HLC 349 at 371; [1843–60] All ER Rep 77 (HL).

2. 3.

Marshall v Cullen (No 2) (1914) 16 WAR 92 (WA Supreme Court). McCartney v Londonderry and Lough Swillie Railway Company [1904] AC 301 at 306 per Lord M’Naghten.

4.

Stockport Waterworks Company v Potter (1864) 159 ER 545 at 556 per Pollock CB; Hill v O’Brien [1938] CLR 96 at 110 per Dixon J. Water Resources Act 2007 (ACT) s 28(2)(c); Water Management Act 2000 (NSW) ss 52 and 53; Water Act (NT) ss 11 and 14; Natural Resources Management Act 2004

5.

(SA) s 124(4); Water Management Act 1999 (Tas) s 48(2)(a), (4) and (4A); Water Act 2000 (Qld) s 20A(1), (2) and (4); Water Act 1989 (Vic) s 8(1)(b) and (d); Rights in Water and Irrigation Act 1914 (WA) ss 9 and 25A. 6. 7.

There is no right in the ACT to take ground water without a licence: Water Resources Act 2007 (ACT) ss 28(1) and 77A. In the Northern Territory, the definition of ‘waterway’ is broad enough to include a swamp or marsh in which water collects, whether continuously or not: Water Act (NT) s 4. In Western Australia, the definition of ‘watercourse’ includes any flow or collection even though intermittent or occasional: Rights in Water and Irrigation Act 1914 (WA) s 3.

8. 9.

Water Management Act 1999 (Tas) s 48(1) and (2)(b); Water Act 1989 (Vic) s 8(1)(c). Western Australia requires the watercourse or wetland to be vested in the Crown and the person to have ‘access … by a public road or public reserve’: Rights in Water and Irrigation Act 1914 (WA) s 10.

10. 11.

Rights in Water and Irrigation Act 1914 (WA) s 25A. Natural Resources Management Act 2004 (SA) s 124(1) and (2) (emphasis added).

12. 13.

Natural Resources Management Act 2004 (SA) s 124(3) and (4). Water Act 1989 (Vic) ss 8(6)(d) and 27; Rights in Water and Irrigation Act 1914 (WA) s 26GC.

14. 15.

Water Management Act 2000 (NSW) ss 52 and 53. Water Resources Act 2007 (ACT) s 28(2)(a); Water Act (NT) s 10; Water Act 2000 (Qld) s 20(1); Water Management Act 1999 (Tas) s 48(1) and (2).

16.

17.

Rights in Water and Irrigation Act 1914 (WA) ss 10 and 21: the watercourse or wetland must be vested in the Crown. In unproclaimed areas, water may be used for any other purpose if the amount of water in the wetland is not thereby sensibly diminished: s 21(1)(c). Water Act 1989 (Vic) s 8(1)(a). Natural Resources Management Act 2004 (SA) s 124(1) and (3).

18. 19.

Rights in Water and Irrigation Act 1914 (WA) s 25A. Natural Resources Management Act 2004 (SA) s 124(1).

20. 21.

Water Act 2000 (Qld) s 20(2). Water Resources Act 2007 (ACT) s 28(2)(c); Water Management Act 2000 (NSW) s 52; Water Act (NT) ss 11 and 14; Natural Resources Management Act 2004 (SA) s 124(4); Water Management Act 1999 (Tas) s 48(1), (2)(a), (4) and (4)(a); Water Act 2000 (Qld) s 20A; Water Act 1989 (Vic) s 8(1)(b) and (d); Rights in Water and Irrigation Act 1914 (WA) s 9.

22.

0.25 ha in Queensland, definition of ‘domestic purposes’, Schedule; 0.4 ha in South Australia, s 3; 0.5 in the Northern Territory; 2 ha in Western Australia, ss 9 and 20; 2 ha in ACT, Dictionary; a ‘kitchen garden’ in Victoria, definition of ‘domestic purposes’ s 3(1); a ‘household garden’ in Tasmania, s 48(1). ‘What Are Rural Landholders’ Basic Rights To Water?’ Water Management in New South Wales; Department Of Water and Energy, NSW, June 2007.

23. 24. 25.

Rights in Water and Irrigation Act 1914 (WA) ss 9 and 20. Rights in Water and Irrigation Act 1914 (WA) s 21.

26. 27.

Natural Resources Management Act 2004 (SA) s 124(1)(2). Natural Resources Management Act 2004 (SA) s 124(4). Subsection 124(4) can be excluded by regulation in prescribed areas and generally has been — see Natural Resource Management Regulations 2005. But the subsection cannot be excluded in unprescribed areas.

28. 29.

Water Act 1989 (Vic) s 8(1) (emphasis added). Water Management Act 2000 (NSW) s 52(1)(a); Water Act (NT) s 14.

30. 31.

Water Act 2000 s 20(2) and (3). Rights in Water and Irrigation Act 1914 (WA) ss 26A and 26B.

32. 33.

Rights in Water and Irrigation Act 1914 (WA) s 25A(2). Rights in Water and Irrigation Act 1914 (WA) s 26D.

34.

35.

A spring may not be prescribed unless the local water resources management committee considers that the taking of water would have a significant impact, and the Water Resources Commission makes such a recommendation to the Minister: Rights in Water and Irrigation Act 1914 (WA) s 5. Water Management Act 1999 (Tas) ss 48(4A) and 124A.

36. 37.

Water Resources Act 2007 (ACT) ss 28(1) and 77A. Water Management Act 1999 (Tas) s 48(4).

38. 39.

Water Act 1989 (Vic) s 8(4)(c) and (5), although water from a spring, soak or private dam is excluded, and such water is restricted to domestic and stock use. Water Act (NT) ss 4 (Interpretation), 9, 44 and 59. The definition of ‘waterway’ includes a swamp or marsh, but a current forming part of the flow of a river, creek, stream or watercourse must pass into, through or out of the swamp or marsh.

40. 41.

For example, Water Act 2000 (Qld), Dictionary, ‘overland flow water’. Water Act 2000 (Qld) s 20(2).

42. 43.

Water Act 2000 (Qld) s 20A(4). Natural Resources Management Act 2004 (SA) s 124(2).

44. 45.

Natural Resources Management Act 2004 (SA) s 124(3) and (4). A wetland may not be prescribed unless the local water resources management committee considers that the taking of water would have a significant impact, and the Water Resources Commission makes such a recommendation to the Minister: Rights in Water and Irrigation Act 1914 (WA) s 5.

46.

Rights in Water and Irrigation Act 1914 (WA) ss 9 and 20(1). In unproclaimed areas, water may be used for any other purpose if the amount of water in the wetland is not thereby sensibly diminished: s 21(1)(c). Water Management Act 2000 (NSW) s 53.

47. 48.

49.

New South Wales Government Gazette, 23 March 2001, and see ‘What Are Rural Landholders’ Basic Rights To Water?’ Water Management in New South Wales, Department Of Water and Energy, NSW, June 2007. Water Resources Act 2007 (ACT) s 28(2)(c).

50.

Country Fire Authority Act 1958 (Vic) s 30; also see other examples: Fire Brigades

51. 52.

Act 1989 (NSW) s 15; Fire and Emergency Services Act 2005 (SA) ss 42(2)(j) and 97(2)(j); Fire Brigades Act 1942 (WA) s 61. In the ACT, in the Water Resources Act 2007 s 28(2)(d), there is provision for the power of fire officers acting under the Emergencies Act 2004 to take water. Water Act 2000 (Qld) s 20(1)(a) and (b). Water Management Act 1999 (Tas) s 48(2)(b).

53. 54.

Rights in Water and Irrigation Act 1914 (WA) ss 21(1)(aa) and 25A(2)(b). Rights in Water and Irrigation Act 1914 (WA) s 26GA.

[page 241]

12 CONTEMPORARY ACCESS ENTITLEMENTS The reform process and contemporary access entitlements 12.1 This chapter gives an introductory overview of the key attributes of contemporary access entitlements. The chapter examines the nature — in particular the proprietary nature — of contemporary access entitlements, in order to determine whether the elements of the various jurisdictions’ entitlements regimes correlate with the attributes of a property rights framework identified by national water policy as desirable for the efficient functioning of a water market. Property in this context is an exclusive relationship to a resource which the law recognises and enforces. The ‘exclusivity’ provides an incentive to maximise the value of the resource, which must also be transferable if efficiency is to be achieved. ‘If a property right cannot be transferred, there is no way of shifting a resource from a less productive to a more productive use through voluntary exchange.’1

Problems of the traditional water privileges system 12.2 This examination considers to what extent the legislation overcomes the problems of the traditional water privileges system.2 While the details of the traditional system varied between

jurisdictions, one can say, generally, that authorisations to take and use water were made without specific quantification of the volume of water that was allowed to be taken, reflecting limited consideration of availability of water. The quantity of water to be taken was specified initially by purpose (for example, a particular type of crop grown on a specified area of land) and, in the latter part of the twentieth century, by specification of a maximum annual volume, sometimes still aligned to a purpose. Within some proclaimed irrigation districts, there were rights to receive water to irrigate the land registered in the name of the water rights holder. Outside irrigation districts, water access rights were usually granted by a licence for works authorising the diversion of water from the works without separate consideration of the allocation and the construction of the works. Such licences had a limited term, subject to renewal and variation in terms, and were personal to the licensee. [page 242] In summary, the potential to characterise such authorisations to take and use water as identifiable property suffered from: the attachment of access entitlements and licences to land; limited provision for transfer, which was normally associated with transfer of the land; lack of long-term secure entitlements; no priority system; excessive discretion in the allocation of licences, not only as to the grant or refusal of licences, but also as to conditions and the power to vary conditions; no provision for the recording and registering of water licences or access entitlements; no consideration of integrated catchment management and overall planning; and

the absence of legislative backing for water allocation and management plans. Licence applications were not assessed on a ‘whole of catchment’ basis. The traditional water privileges regime denied a proprietary character to the licence because it provided an unclear and uncertain right. The entitlement was uncertain on the face of the instrument, including as to how much water it could deliver, and because of the absence of considerations of availability and of a priority regime. The absence of a register was, of course, consistent with the absence of a priority system and the inability to transfer the licence. The absence of long-term or perpetual tenure further discounted the proprietary nature of the right. The High Court considered the proprietary character of bore licences issued under the Water Act 1912 of New South Wales in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51. The court affirmed some of the factors to be considered,3 in particular: the possibility of severance from the land; the degree to which the licence was transferable; the degree to which conditions could be imposed or changes made as a matter of discretion; whether the licence was considered to be of assessable value; the degree of permanence and stability; and any liability to discretionary suspension and forfeiture. In the result, the High Court reached a decision that did not require a definitive characterisation of the water right in question. A majority of four justices seemed prepared to countenance a notion that the right was a ‘species of property’, but a broader majority of six justices held it to be of an ‘inherently fragile’ and ‘insubstantial character’.4 The High Court therefore recognised that there may be a scale of proprietary rights. The bore licences under consideration were part of a slow transition in the latter part of the twentieth century towards water rights that are more proprietary in nature.

[page 243] The characterisation ‘as a species of property’ did not determine the outcome in ICM Agriculture Pty Ltd. Rather, the replacement of the bore licences by aquifer access licences issued under the Water Act 2000 (NSW) was not considered to constitute an acquisition of property within s 51(xxxi) of the Commonwealth Constitution. In assessing the proprietary character of water rights, the principal significance of ICM Agriculture Pty Ltd may not be so much in the context of challenging the constitutional validity of the introduction of a new regime, but more in the recognition that there is a scale of proprietary rights. While economists may suggest that the more rigid the proprietary nature, the more likely it is that economically efficient outcomes will be achieved; environmental scientists may suggest that the more flexible the proprietary nature, the more likely it is that sustainable environmental outcomes will be achieved.

The reform process and contemporary ‘unbundled’ water entitlements 12.3 The 1994 CoAG Water Reform Framework advocated the ‘implementation of comprehensive systems of water allocation’ incorporating four key elements as the foundation for instituting trade in water rights, including interstate trade: see chapter 2 at [2.2] and chapter 3 at [3.8]. The first of those elements was the creation of property rights in water separate from land titles and clearly specificying the ownership, volume, reliability, transferability and, if appropriate, quality. The 1995 Task Force on CoAG Water Reform was charged with developing a framework of principles that could guide the implementation of this reform across all Australian jurisdictions.5 It acknowledged that the major goal of water resource management ‘is to achieve the highest and best value of the limited resource for community benefit, whilst ensuring that use of the resource is ecologically sustainable’.6 The

Task Force devised a framework of seven principles for implementing property rights in water through a comprehensive planning system that would provide for environmental flows and establish the foundation for consumptive and non-consumptive water entitlements: see chapter 14 at [14.35] ff. Three specific advances in the proprietary characterisation of water access entitlements can be taken from these principles. First, the entitlements were to be specified as a ‘share’ of the natural resource being allocated. Second, as far as practicable, the tradable rights should reside in the individual end-users of water. Third, jurisdictions were urged to define rules for ‘environmental flow entitlements’, not just plan allocations for environmental flow. As the states (especially New South Wales and Queensland) legislated to implement their reforms, there were refinements in the definition of terms and the purpose of water entitlements that led to the contemporary national policy definition of the entitlements to take and use water. The 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’)7 paras 28–30 declared the framework for ‘unbundled’ water entitlements, including: [page 244] ‘[t]he consumptive use of water will require a water access entitlement, separate from land, to be described as a perpetual or open-ended share of the consumptive pool of a specified water resource, as determined by the relevant water plan’; ‘[t]he allocation of water to a water access entitlement will be made consistent with a water plan’; and ‘[r]egulatory approvals enabling water use at a particular site for a particular purpose will be specified separately to the water access entitlement’; for example, approvals for works to extract and deliver water and approvals for the use of water at a particular site

would be separate instruments from the ‘access’ and ‘allocation’ intruments (original emphasis).

The elements of a proprietary water access entitlement 12.4 The separation of the water access entitlement from land title and its unbundling from the other regulatory instruments was intended to facilitate trade by transfers of entitlements and allocations. Additional necessary elements were declared by the Task Force on CoAG Water Reform, which suggested: the establishment of an effective market-based system of tradable property rights in water required rights to be: in demand … well specified in the long term sense … exclusive … enforceable and enforced … transferable and divisible …8

The 2004 NWI further particularised the elements, stressing that water access entitlements should: ‘specify the essential characteristics of the water product’ and ‘clearly indicate’ the conditions under which the entitlement was held; ‘clearly indicate’ that the conditions under which the entitlement was held are subject to the relevant water plan; ‘be able to be traded, given, bequeathed or leased’; ‘be able to be subdivided or amalgamated’ and ‘be mortgageable (and in this respect have similar status as freehold land when used as collateral for accessing finance)’; ‘be exclusive’, ‘enforceable and enforced’; ‘be recorded in publicly-accessible reliable water registers that foster public confidence and state unambiguously who owns the entitlement, and the nature of any encumbrances on it’; ‘only be able to be cancelled where the responsibilities and obligations of the entitlement holder have clearly been

breached’, or varied by mutual agreement. The NWI did allow that the water entitlement could ‘be subject to any provisions [page 245] relating to access of water during emergencies, as specified by legislation in each jurisdiction’.9 These policy prescriptions focus on the attributes of a tradable water access entitlement needed for the operation of an ‘effective market’ that would, through competition, secure economic efficiencies. This chapter gives a national overview of those attributes within the broader framework of water resources legislation. The overview introduces key propositions that are then explored in detail in: Part 4: ‘Water resources planning’; Part 5: ‘The administration of access entitlements’; and Part 6: ‘Water trading’. Part 7: ‘Conclusion on sharing water resources in Australia’ summarises the core features of the entitlements regime for each state and territory and explores the future of the NWI propositions, including in the context of the use of water resources in the mining and energy industries.

National overview 12.5 This section comprises a national overview, addressing the following key propositions that assist in classifying entitlements with NWI characteristics: the requirement for authorisation to take water; the overriding place of the water plan and subjection of the water

entitlement to the water plan; the nature of the access entitlement, including separation from land title and ‘unbundling’, so that access entitlements are separated from use and works approvals, and are more easily transferable; that duration be for the long term — the NWI specified that the duration should be perpetual or open-ended: ‘fixed term or other types of entitlements such as annual licences will only be issued for consumptive use where this is demonstrably necessary, such as in Western Australia with poorly understood and/or less developed water resources … or where trading may otherwise not be appropriate’;10 and that the specification of the entitlement and conditions be secure and precise, indicating how much water may be taken, where and when, and subject to minimal post-grant unilateral variation by government, with provision for a public record or register of water entitlement rights and encumbrances. We then introduce water access rights in the mining and petroleum sectors, and the problematic effect of NWI para 34, before concluding this chapter with a summary introduction to the proprietary nature of access entitlements. [page 246]

The requirement for a water entitlement, licence, water share or other authorisation to take water 12.6 The structure of the water rights and allocation system is controlled by the requirements for a water entitlement or licence and/or water allocation before water can be taken. The requirements are normally manifested in prohibitions on taking water without a water entitlement or licence and/or water allocation. However, there are significant exceptions. The broadest is the right to take water for domestic purposes or watering stock,

or other miscellaneous or emergency purposes, without a licence. This exception exists in every jurisdiction in Australia. In some jurisdictions ground water may be taken for a wider range of purposes without a licence or water entitlement; for example, in Queensland, Tasmania and Western Australia. Conversely, the Australian Capital Territory has excluded the domestic purposes exemption with respect to ground water. In South Australia, Victoria and Western Australia the requirement for a water entitlement or licence is limited by reference to those parts of the state which have been declared or prescribed. In Tasmania no licence is required for the taking of water to generate electricity by a person who has lawful access to watercourse or lake, if the use does not cause environmental harm or adverse effects to other users. There are other discretionary areas of exemption. In Tasmania an exemption or temporary permission may be granted where there is no adverse effect on the environment or other rights holders. In South Australia the Minister has a general discretion to authorise the taking of prescribed water by notice for a particular purpose specified in the notice. The wide ambit of the exceptions necessarily undermines the security and certainty of any water entitlement which is granted, and accordingly, the proprietary nature of the regime.

Overriding place of the water plan: allocation of water to entitlement must be consistent with the water plan 12.7 The NWI requires that the share of the consumptive pool of a specified water resource granted by a water access entitlement should be determined by the relevant water plan, and the allocation of water to the entitlement must be consistent with the water plan. Statutory water plans are required to be prepared for surface water and ground water management units in which entitlements are issued.11 The requirement ensures proper

assessment of the water resource and the establishment of a watermanagement program leading to sustainable access entitlements. The sustainability of access entitlements is essential to the security of the entitlements so as to properly establish their proprietary nature. [page 247] All jurisdictions are moving towards the implementation of statutory water plans which will govern the allocation of access entitlements. As the water plans come into effect, existing entitlements are converted into the new regime providing for the access entitlements, which are tradable. The legislation of Queensland, New South Wales, South Australia, the Northern Territory, and the Australian Capital Territory requires that converted entitlements, and any new entitlements, must conform to the rules of allocation provided for under the water plan. Such a requirement is imposed on licences and water shares in Victoria, but is absent from the bulk entitlement regime, although availability of water and the permissible consumptive volume must be considered upon any such application12. Tasmania provides that the Minister may refuse a licence if an allocation is not consistent with the water plan. The other jurisdictions provide that the application must be refused. New South Wales, Queensland and South Australia would seem to be the furthest along the path of implementation in the drawing up of water plans. Western Australia, which only became a party to the NWI in 2006, has yet to enact the very substantial amendments which its water legislation requires. Although the Rights in Water and Irrigation Act 1914 (WA) provides for the making of statutory water management plans, a plan is merely one of the factors to be considered by the Minister in the granting of a licence. In any

case, no statutory plans have been made in the 16 years since the statutory planning powers were enacted.

Nature of access entitlements, separation from land title and ‘unbundling’ 12.8 The labels applied to the water rights and entitlements created to comply with the NWI requirements vary between jurisdictions. In Queensland they are termed ‘water allocations’; in Victoria, ‘water shares’; in New South Wales, South Australia and the Australian Capital Territory, ‘water access licenses’ endorsed with a ‘water access entitlement’; and in Tasmania, ‘licences’ endorsed with water allocations. There are unreformed entitlements in Western Australia, termed ‘licences to take and use’ with a ‘water access entitlement’ endorsed on the licence, and in the Northern Territory, licences (to take and use surface water or to extract ground water) with conditions specified. Victoria has also retained the terminology of ‘bulk entitlements’ in reference to the entitlements of the major water authorities. The substance of the rights conferred is examined in the ensuing sections. 12.9 A major obstacle in seeking to use water markets to ensure the efficiency of water use is the barrier created by the traditional requirement that a water access right has an attachment to land where the water is used. The market and transfers are limited by such a barrier because the one instrument confers rights with conditions pertaining to the volume of water to be extracted, the location of extraction and use. The need to remove the requirement of attachment to land and to ‘unbundle’ the access entitlement from approvals for extraction works and use was recognised early in the water law reform process, and was an essential part of the proposals of the 1994 Task Force on CoAG Water Reform and the 2004 NWI. [page 248]

Thus the Queensland provisions allow non-landowners to hold water allocations and allow their transference apart from the land. They afford a considerable contrast to the provisions relating to the traditional licences in Queensland which can only be held by the owner of the land where the water is to be used. The removal of such a barrier has also been provided for in New South Wales, with respect to water access licences; and in South Australia, Tasmania and the Australian Capital Territory with respect to licences and water access entitlements. Western Australia and the Northern Territory retain an explicit (WA) or presumed (NT) landholder eligibility requirement to hold a water licence. The removal has only been partial in Victoria, and is inhibited in all jurisdictions by conditions as to where the water may be used. In Victoria there is no requirement that applicants for access entitlements be holders of land where the water is to be used. A 10 per cent limit on ownership of water shares by non-water users was repealed by the Water Amendment (Non Water User Limit) Act 2009 (Vic). All jurisdictions have the power to specify the location where water is to be used, either by the imposition of conditions on the entitlement, or by the mechanism of water use approvals (NSW) or water use licences (Vic). The power enables the maintenance of limits on water transfers. The need for substantial reform in Western Australia is most apparent in the fundamental requirement of eligibility to hold a licence being ownership or occupation of the land to which the licence relates. Moreover a licence is terminated if the holder becomes ineligible. If the land is transferred, the licence may be transferred to the new owner or occupier. These factors are obviously at variance with the requirements of the NWI and the establishment of a water-trading market. There is some limited flexibility in that a licensee can transfer an access entitlement to another licensee, but there is no separate water use approval instrument.

Duration 12.10 The 1994 Task Force on CoAG Water Reform required that access entitlements have a long-term duration, but the NWI specified that the duration of a water entitlement should be perpetual, or open-ended. However, the NWI also declared that ‘fixed term or other types of entitlements such as annual licences will only be issued for consumptive use where this is demonstrably necessary, such as in Western Australia with poorly understood and/or less developed water resources … or where trading may otherwise not be appropriate’.13 Water access entitlements in Queensland, New South Wales, Victoria and South Australia have no fixed term and terminate only on cancellation. They are perpetual in nature and accordingly satisfy the requirements of the NWI. Their perpetual nature assures ‘a more robust, bankable and attractive asset’ providing ‘confidence in planning for the long term’.14 [page 249] No such perpetual nature is legislated in Tasmania, the Northern Territory, the Australian Capital Territory or under the unreformed regime of Western Australia. In those jurisdictions water access entitlements are issued for fixed periods of 10 to 15 years, in the manner of the traditional water licences of the past. Tasmania has justified its provisions on the basis that the access entitlements are ‘widely recognised in Tasmania as ongoing’,15 because they are subject to mandatory renewal provided the renewal is ‘consistent with the objects of the Act’. But such a discretionary renewal is far from an assured perpetual entitlement. In the Australian Capital Territory water access entitlements are said to be issued in perpetuity, but the legislation merely provides that the licence remains in force for the period specified. In the Northern Territory

licences cannot be generally granted for periods exceeding 10 years. Consistently with the exception contemplated by the NWI, Queensland has made specific provision for water permits granted for short-term activities such as road construction.

Specification of entitlement and conditions 12.11 The uncertain nature of traditional access entitlements severely discounted their proprietary nature. They were uncertain in the sense that: the quantity of the entitlement was not clearly specified; conditions were the subject of discretion and could be changed in a discretionary manner; and there was limited consideration of availability of water, which rendered the entitlement unclear in circumstances of shortage. The 1994 Task Force and the 2004 NWI both recognised that there was a need for much greater specification of the rights conferred and the terms and conditions to which the entitlements were subject in order to confer a proprietary nature on access entitlements. The NWI stressed that the entitlements should ‘specify the essential characteristics of the water product’ and ‘clearly indicate’ the conditions under which the entitlement was held.

Quantity of entitlement specified 12.12 The NWI requires that water access entitlements constitute a ‘share of the consumptive pool of a specified water resource’.16 To that end New South Wales and Victoria have adopted an approach founded on recognition of an entitlement to a particular fixed share of the available water resource. The concept recognises the variability of the availability of the resource and integrates that variability into the nature of the water entitlement. The

volumetric entitlement will vary with the size of the available resource. [page 250] In New South Wales water access licences declare an entitlement to specified shares in the available water — the share component. Entitlement holders can determine their entitlement from data as to the available water resource in that location. In the event of water shortage, a scheme of priorities applies. The New South Wales scheme does not purport to provide an entitlement to a fixed volume of water. The Victorian scheme relating to water shares is to like effect. The water share indicates the share of the available resource, although the Minister does express the share as a volume of water over a particular period. The Victorian scheme does not have a scheme of priorities. In Queensland the legislation specifies a nominal volume, but also indicates how the available water must be shared by reference to a scheme of priority in the event of any shortfall. The application of a priority scheme in the event of such an assumed shortfall does at least provide for a scheme for sharing and so indicates the insecure nature of the volumetric specification of the entitlement. In South Australia, the Northern Territory and Tasmania no particular method of specifying the amount of water allocated is mandated, although it may be fixed by specifying the volume of water that may be taken. None of these latter jurisdictions require that the entitlement specify any percentage share of the resource. Nor does the legislation provides for a scheme of priorities, although Tasmania seeks to specify the surety with which a water allocation can be expected to be available. The surety level is considered in the event the Minister imposes restrictions. In the

context of over-allocation or water shortage, the specification of the entitlement in South Australia, the Northern Territory and Tasmania appears illusory.

Conditions not the subject of discretionary change 12.13 The NWI requires that water access entitlements will ‘only be able to be cancelled at Ministerial and agency discretion where the responsibilities and obligations of the entitlement holder have clearly been breached’ and only ‘be able to be varied, for example to change extraction conditions, where mutually agreed between the government and the entitlement holder’.17 The exercise of unilateral discretion to cancel a water entitlement or change conditions denies or discounts the possibility of any proprietary right arising. Queensland affords an illustration of the application of these requirements. The traditional water licence in the state is the subject of discretionary cancellation and changes to terms and conditions. By contrast, water allocations, which are replacing the water licence, may only be forfeited in the event of a breach of conditions or of the Act. In the event of such forfeiture, any balance of proceeds arising from the sale of the water allocation is payable to the former allocation holder. There is no provision for unilateral discretionary changes in terms and conditions. [page 251] New South Wales has similar arrangements with respect to the cancellation of a water access license. Cancellation other than for breach of condition requires compulsory acquisition and the payment of compensation, as with any other proprietary right. None of the jurisdictions allow for the discretionary cancellation of access entitlements — that is, for other than breach of condition — without the payment of compensation.

Nor do the jurisdictions generally allow discretionary changes after the grant of a water entitlement, except to ensure consistency with a water management plan. The exceptions are New South Wales, the Northern Territory and the Australian Capital Territory, which have retained a unilateral discretion to bring about changes in terms and conditions after the grant of the water entitlement. Western Australia also permits post-grant discretionary changes to a water entitlement, though such changes mostly trigger a prima facie right to compensation for damage or loss from such changes. Uniquely, the Minister in Western Australia may vary the terms and conditions of a licence if the authorised licence entitlement has consistently not been taken.

Uncertainty arising from lack of clarity as to risk in the event of shortage of water 12.14 The NWI requires that ‘water access entitlements and planning frameworks’ will ‘clearly assign the risks arising from future changes to the consumptive pool’ while recognising that access entitlements will ‘be subject to any provisions relating to access to water during emergencies, as specified by legislation in each jurisdiction’.18 The NWI specifically declares that: Water access entitlement holders are to bear the risks of any reduction or less reliable water allocation, under their water access entitlements, arising from reductions to the consumptive pool as a result of: (i) seasonal or long-term changes in climate; and (ii) periodic natural events such as bushfires and drought.19

But governments are to bear the risks of any reduction in water allocation: arising from changes in government policy; or under water management plans after 2014 arising from improvements in the knowledge of water systems’ capacity to sustain particular extraction levels (apart from the first 3 per cent

reduction in an allocation which is to be borne by the water access entitlement holder).20 The provisions of the NWI try to shore up the proprietary nature of water access entitlements in the context of the variability of the availability of the water resource. Thus the water access entitlement holders are declared to bear the risk of climatic and [page 252] seasonal water availability changes. Accordingly, the legislation of all jurisdictions provides for reductions in allocations and prohibitions on taking water on account of water shortages, and generally makes no provision for compensation on that account. By way of exception, compensation is payable in Queensland when water supply emergency powers are exercised. By contrast the NWI requires governments to bear the risk, and accordingly to provide compensation, in the event of reductions arising from changes in government policy or, after 2014, arising from improvements in knowledge of water availability of a particular water system. The legislation to date generally accepts the requirement to pay compensation in the event of reductions arising from changes in government policy, as in Queensland, or prohibits such changes as in New South Wales. But none of the legislation at present provides for the assignment of risk arising from improvements in knowledge, although the governments of Queensland, Victoria and the Australian Capital Territory have all acknowledged the need for a review to consider amendments to provide compensation in such event.

The Register and declaration of proprietary nature 12.15 The 2004 NWI required that water access entitlements will ‘be recorded in publicly-accessible reliable water registers that foster public confidence and state unambiguously who owns the

entitlement, and the nature of any encumbrances on it’.21 Schedule F set forth guidelines for water registries, requiring that they would: contain records of all water access entitlements and trades; ensure the security of water access entitlements; provide for the protection of third party interests, including those of lenders, and priorities as between competing dealings; incorporate procedures based on land title office manuals and guidelines; be publicly accessible, preferably over the Internet, and include information such as the price of trades; and enable resource managers to monitor trade and water use volumes accrued under access entitlements. Satisfaction of those guidelines would buttress the proprietary nature of water access entitlements and greatly assist the establishment of a water market, making available essential information as to the character of the entitlement, its ownership and encumbrances. In particular, the provision of indefeasibility of title would ensure the security of water access entitlements. Queensland, New South Wales and Victoria are well on the way to the implementation of the registry system demanded by the NWI. They all have passed legislation providing for comprehensive records, protection of third party interests, priorities, land titles procedures and public access. Queensland has legislated for the indefeasibility of title; New South Wales and Victoria have yet to do so. [page 253] The other jurisdictions have some way to go to meet the standards demanded by the NWI. They have registers of access entitlements in which ownership of an entitlement and transfers are recorded and some provision is made for noting third party

interests. However, there is no indefeasibility of title, no provision for priorities, and no procedures analogous to those of a land titles office. The registers in those jurisdictions have some way to go to provide the stipulated security of water access entitlements. South Australia and Tasmania have provisions specifically declaring the proprietary nature of access entitlements. Such provisions may confer other benefits, but it is the substance of a property regime that confers the efficiency benefits not the nomenclature.

The Mining and Petroleum Sectors and NWI para 34 12.16 Early in the drafting of the NWI, the mining and petroleum sectors raised questions about whether the NWI prescription of water access entitlements as a variable share of a consumptive pool, managed for environmental sustainability under a statutory plan, was suitable for their patterns of water extraction and use. There has been a history of the mining and petroleum industries gaining water access rights under the sector’s own legislation, rather than being subject to regulation of water access under the standard water resources management legislation.22 In recent years, the taking, diversion and use of water resources by the mining and petroleum sectors has come increasingly under the regulatory oversight of the general water resources law administered by government agencies for water resources management. This is a policy and legislative response to the increasing community concerns about the impacts of minerals and coal seam gas (‘CSG’) production on water resources, especially in respect of the cumulative effects of the abstraction of ground water in mine dewatering and the CSG production of associated water. The extent of this trend varies between different Australian jurisdictions, with Queensland diverging from a notable trend towards consolidating the regulation of mining and CSG

impacts on water resources under the general principles of Australian water resources legislation. A distinction should be made between the water resources regulation of the mining and petroleum industries. The well-recognised potential for mining operations to involve the diversion, use and discharge of significant volumes of water has seen a role for water resources regulation of mining operations alongside the operation of mining legislation for three or four decades, a role that has increased in recent years because of the perceived cumulative impacts of very large projects for iron ore and coal mining. On the other hand, conventional petroleum production operations have generally been seen as having only a limited and incidental impact on water resources. The particular interest with the petroleum sector has come with the recent rapid escalation of the unconventional petroleum production industry, the CSG and shale gas industries, regulated primarily under the petroleum legislation in Queensland. 12.17 The trend of bringing the mining and petroleum sectors under the water resources legislation and into the NWI model of share entitlements is notable because, initially, [page 254] it seemed like these industry sectors had been exempted from its general application. Paragraph 34 of the NWI provides as follows: The Parties agree that there may be special circumstances facing the minerals and petroleum sectors that will need to be addressed by policies and measures beyond the scope of this Agreement. In this context, the Parties note that specific project proposals will be assessed according to environmental, economic and social considerations, and that factors specific to resource development projects, such as isolation, relatively short project duration, water quality issues, and obligations to remediate and offset impacts, may require specific management arrangements outside the scope of this Agreement. [Emphasis added.]

The National Water Commission (‘NWC’) commented about the

operation of para 34 in its 2010 position statements on mining and coal seam gas:23 The Commission found in its 2009 Biennial Assessment of progress in implementation of the NWI that the circumstances in which special clause 34 would apply are not defined and identified in a consistent and transparent manner. Little progress has been made in the five years since the signing of the NWI in fleshing out the special provisions for the minerals and related industries. As a consequence, there has been little integration of those industries with broader water markets and water planning processes, despite the potential for considerable benefits in many cases.

The NWC noted further that ‘Clause 34 of the NWI is only intended to operate in exceptional circumstances’. It commented specifically in relation to CSG — a comment pertinent to some regulation of mining projects too — that the frequent resort to environmental approval laws to make special arrangements for these resources projects was no sufficient substitute for better integrating these sectors’ use of water resources into the general water planning and entitlement regimes. The NWC and the Commonwealth and state governments have been responding to community concerns. Enhanced perceptions of water resource values, and the better defined legal rights attached to them, are greatly challenged by the new mining and CSG mega-projects and regional-scale developments that portend cumulative impacts on water resources beyond previously perceived geographic perspectives and resource management timeframes. The Commonwealth Parliament has enacted two amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’):24 in 2012 to create an expert scientific committee to assist with environmental [page 255] assessment, and in 2013 to insert the new ‘water trigger’ for environmental approval of CSG and large coal mine developments that have significant impacts on water resources. New South Wales

and Queensland have made repeated attempts at legislative and policy reform,25 and in recent years have gone in different directions — New South Wales applying the NWI model and Queensland rejecting it. There has also been litigation, especially in New South Wales and Queensland, much of it relating to the land use development and environmental approvals that also need to be obtained for resource extraction in those states.26 Ironically, there is no significant case law relating directly to the operation of the water resources law. In Parts 4, 5 and 6 we explore the general propositions of the water resources legislation, and then return in chapter 27, a supplementary chapter online,27 to assess some key issues in the application of water resources legislation to the mining and petroleum sectors.

Conclusion — introduction to the proprietary nature of access entitlements28 12.18 Unquestionably the 1994 CoAG Water Reform Framework and the 2004 NWI have brought about significant change in water rights regimes in Australia. All jurisdictions have moved towards the creation of proprietary trading regimes. All, except Western Australia and the Northern Territory, have made significant legislative change to achieve that objective. Western Australia is, slowly, reviewing its legislation to that same end. [page 256] Yet aspects of the previous traditional system — based not on property rights, but on government discretion and privileges — remain. Substantial water use remains outside the proprietary trading regimes which have been created. In particular, use of water for domestic, stock watering and miscellaneous purposes

continues and does not require a water entitlement. Additionally some jurisdictions have retained significant discretion to exempt particular uses of water from the requirement of a water entitlement. All such uses undermine the certainty and security of any water entitlement which is granted, and the efficacy of any trading regime. The development of water management plans is crucial to ensuring the sustainability of water availability and accordingly the security of access entitlements. All jurisdictions, except Western Australia, have given statutory force to such plans and require that entitlements must be consistent with the water plan, although Victoria and Tasmania have placed limitations upon the demands of such consistency. However, the development of water management plans is discretionary and, accordingly, the process of implementation varies between jurisdictions. All jurisdictions, except Western Australia, have moved to establish proprietary access entitlements which are transferable. Western Australia’s Act has provided expressly, in non-proprietary langage for specific transferability in certain situations. The requirement of an attachment to land ownership has been largely removed, though all jurisdictions control the place of use of water, and that control limits the transferability of entitlements. A significant limitation was the 10 per cent limit on the ownership of access entitlements by non-water users imposed by the state of Victoria. The 10 per cent limit was a significant barrier to transferability, and was removed in 2009 by the Water Amendment (Non Water User Limit) Act 2009 (Vic). Access entitlements have been given much greater certainty, clarity and security. It was the uncertain, unclear and insecure nature of access entitlements which traditionally discounted the proprietary nature of the entitlements. The quantity of the entitlement has been given greater clarity by placing it in the context of water availability, in particular in New South Wales and Victoria by the establishment of shares. Further, access entitlements are no longer subject to discretionary cancellation

without compensation. Changes to conditions after grant can be just as damaging, but some jurisdictions, in particular New South Wales, the Northern Territory and the Australian Capital Territory, have retained discretionary powers to change conditions. The traditional water entitlement was for a relatively short term, up to 15 years, and was renewable at the discretion of the government. Short-term entitlement does not deny a proprietary nature, but limits the value of the entitlement. Most jurisdictions have moved to perpetual entitlements, but Tasmania, the Northern Territory, the Australian Capital Territory and Western Australia have yet to legislate to that end. A proprietary trading regime requires publicly accessible water registers containing details of all interests, and preferably providing indefeasibility of title. Only Queensland and New South Wales have legislated for such a regime at present. Victoria has yet to provide indefeasibility of title. The other jurisdictions have some way to go to provide such a registry scheme. [page 257] The changes to the nature of access entitlements in Australia, outside of Western Australia, undoubtedly make them more proprietary in nature. The changes to date have made possible the capturing of some, but not yet all, of the benefits of efficiency of water use which are essential in Australia. Yet there are degrees to the proprietary quality of an entitlement, and limits on the extent to which some jurisdictions have embraced a trading regime.29 Queensland, New South Wales and Victoria are more proprietary in nature, while the Australian Capital Territory and Tasmania are less so, and the Northern Territory and Western Australia very much less so. In 2014 the National Water Commission, in its assessment30 of the national

water reform process, stressed the need for further legislative reform in the Northern Territory and Western Australia.

1.

R A Posner, Economic Analysis of Law, Little Brown, Boston, 1978, p 10.

2.

As, for example, acknowledged in Queensland Government papers explaining reforms in that state: Water (Allocation and Management) Bill Explanatory Material, February 2000; Summary Document Exposure Draft Water (Allocation and Management) Bill, Implications for Rural Water Uses in Queensland, February 2000. See also C Knowles, Minister for Natural Resources (NSW), New South Wales Water Reforms: A Secure and Sustainable Future, 2004. ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 at [142]–[147] per Hayne, Kiefel and Bell JJ; at [197]–[215] per Heydon J; at [74]–[80] per French CJ, Gummow and Crennan JJ.

3.

4.

5.

ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 at [147] per Hayne, Kiefel and Bell JJ; at [197]–[215] per Heydon J; at [74]–[80] per French CJ, Gummow and Crennan JJ. Australian Government, Agriculture and Resource Management Council of Australia and New Zealand (‘ARMCANZ’), Task Force on CoAG Water Reform, Water Allocations & Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995.

6. 7.

Ibid, p i. A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): .

8. 9.

ARMCANZ, Task Force on CoAG Water Reform, Water Allocations & Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995, p 4. NWI paras 31–32.

10. 11.

NWI para 33. NWI para 36.

12. 13.

See s 22A of the Water Act 1989 (Vic). NWI para 33.

14. 15.

Knowles, Minister for Natural Resources (NSW), 2004, p 13. Implementation Plan for the National Water Initiative — Tasmania, September 2006, p 7.

16. 17.

NWI para 28. NWI para 32(ii) and (iii).

18. 19.

NWI para 25(vi) and 32(iv). NWI para 48 (original emphasis).

20. 21.

NWI para 49. Intergovernmental Agreement on a National Water Initiative, 25 June 2004, cl 31(vii).

22.

A Gardner, ‘Mining Access to Water Resources — Traditions and Developing

23.

24.

25.

26.

Principles’ [2013] AMPLA Yearbook 306. The comments that follow are drawn from this article. Australian Government, National Water Commission, ‘Mining Position Statement, May 2010’ and ‘Position Statement — Coal Seam Gas and Water, December 2012’, available on the archived NWC website: . The quotations are taken from the first statement. Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 (Cth) and Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth). See D Roe, ‘Federal Environmental Approvals for Coal Seam Gas and Coal Mining: Injecting Independent Science’ [2012] AMPLA Yearbook 697. Numerous commentaries record the policy and legal debates: C Bozonji, ‘Management of Coal Seam Gas Associated Water’ [2010] AMPLA Yearbook 555; M Walton, ‘The Queensland CSG Industry: Miners v Farmers — Do the 2010 Water Act Amendments for Underground Water Management Ease the Tension?’ (2013) 32(1) ARELJ 19; ‘Coal Seam Gas Issue’ (2012) 29(2) EPLJ (six articles); D Townsend, ‘The NSW Strategic Regional Land Use Policy and Aquifer Interference Policy in context’ (2012) 28(1) Australian Environment Review 415; C Rebello, S Couperthwaite, G Millar and L Dawes, ‘Understanding Coal Seam Gas Associated Water, Regulations and Strategies for Treatment’ (2016) 13 Journal of Unconventional Oil and Gas Resources 32; J Gray, ‘Trans-jurisdictional Water Law and Governance in the Context of Unconventional Gas Mining’, in J Gray, C Holley and R Rayfuse, Transjurisdictional Water Law and Governance, Earthscan, Abingdon, 2016, Chapter 12, pp 214–39. BHP Billiton Minerals Pty Ltd v Martu Idja Banyjima People as Registered Native Title Claimants [2010] WAMW 1; Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 at [109] ff; Barrington–Gloucester–Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207; SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1032; Xstrata Coal Queensland Pty Ltd v Friends of the Earth [2012] QLC 013; Hancock Coal Pty Ltd v Kelly and Department of Environment and Heritage (No 4) [2014] QLC 12; Coast and Country Association of Queensland Inc v Smith [2015] QSC 260; Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48.

27. 28.

See . See generally, J Gray and L Lee, ‘National Water Initiative Styled Water Entitlements as Property: Legal and Practical Perspectives’ (2016) 33 EPLJ 284.

29.

See above at [12.2] and ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 at [142]–[147] per Hayne, Kiefel and Bell JJ; at [197]–[215] per Heydon J; at [74]–[80] per French CJ, Gummow and Crennan JJ. National Water Commission, 4th Assessment of National Water Initiative, 2014, Canberra, p 4.

30.

[page 259]

13 NATIVE TITLE AND INDIGENOUS ACCESS TO WATER 13.1 Broadly interpreted, native title to water had the potential to be of great significance in the allocation and management of water rights in Australia, arising from its origins in the traditional laws and customs of Indigenous people. Such laws and customs could have been interpreted to include a wide range of water uses entailing rights to substantial water allocations. Further, since it is not a water right bestowed by state legislative licence or grant and lies outside the historic statutory framework of state water legislation, the imposition of state control and limits on native title to water would have entailed the satisfaction of principles of non-discrimination, which would have been hard to satisfy. But the potential for great significance of native title to water has been denied by the manner of its development under both common law and statute. Native title to water is of limited significance in Australia because: the burden of proof is extremely onerous; the content of the right has been severely limited by the emphasis upon traditional laws and customs; the degree of past extinguishment declared by common law and legislation, the Native Title Act 1993 (Cth) (‘NTA’), is widespread; and imposition of state control and limits on native title rights to

water have been permitted by the NTA with respect to future water developments on less onerous terms than nondiscrimination would require. Indigenous access to water, of course, is of great significance to Indigenous peoples’ traditions, customs, culture and society. The National Water Initiative (‘NWI’) has regard to that significance but does not provide for substantial rights of access. Indigenous access to water and the NWI are examined in this chapter after the consideration of the subordinate place of native title in the allocation and management of water rights in Australia.

Burden of proof of native title is extremely onerous 13.2 The definition of ‘native title’ in s 223 of the NTA follows the language of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1.1 It means the communal, group or individual rights and interests in relation to land or waters: [page 260] possessed under the traditional laws acknowledged and traditional customs observed (a); where, by those laws and customs, there is a connection with the land or waters (b); and that are recognised by the common law (c).2 In Western Australia v Ward [2002] HCA 28 at [84] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, the High Court imposed traditional laws and customs as a significant barrier to the establishment of native title by requiring the particularisation of each and every element of traditional law and custom — thus

seeming to stifle any larger claim to a more global or comprehensive right.3 But a line of Federal Court4 and Full Federal Court5 decisions has since declared that exclusive possession of land and waters can be shown, upon the basis of a right of control of access of Aboriginal people under traditional laws and customs being proven at the time of the acquisition of sovereignty. The right recognised connotes exclusive use and enjoyment, and is exercisable against the whole world. The right must be exercised in accordance with traditional laws and customs, but a right of access or use of those lands and waters by others, including nonAboriginal people, can only be obtained under state or Commonwealth laws. In order for a court to make a declaration of native title, it must however be satisfied that the connection in accordance with traditional laws and traditional customs has been ‘substantially maintained’.6 The High Court in Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at [90] per Gleeson CJ, Gummow and Hayne JJ affirmed the need for continuity of the traditional connection: ‘continuity of acknowledgment and observance is a condition for establishing native title’. Moreover, the High Court7 and lower courts have consistently ruled that the onus of demonstrating substantial maintenance or non-extinguishment should be upon the claimant. The High Court has recognised that traditional laws, customs and usages can change and evolve, and what is significant is the ‘general nature’ of the connection between [page 261] the people and the land.8 But evolution of traditional laws and customs is accepted only within limits.9 In addition, particularisation of rights has the effect of restricting evolution of native title rights and interests.

The combined effect of an emphasis on particularising traditional laws and customs, if a right of control of access cannot be shown, and the demand that acknowledgment and observance of such laws and customs be maintained to the present creates a very onerous burden of proof. Native title is unlikely to be established by litigation in the southern and settled regions of Australia, and so the question of native title to water is unlikely to arise in those regions. The content of native title to water that is established is also likely to be severely limited — indeed, ‘frozen’ — by the requirements of proof.

The frozen content of native title right to water 13.3 The content of native title rights to water has been severely limited by the emphasis upon traditional laws and customs. Native title may be proven to include rights to use water for traditional sustenance, including hunting and fishing, transportation, ceremonial and domestic purposes. Evolution could also contemplate the use of modern methods of using water for such purposes, for example, nets for fishing, or pumps to appropriate water. However, in the absence of a particularised proof of traditional laws and customs establishing other uses, the native title right to water will be limited to such uses,10 and not extend to more contemporary forms of water exploitation such as hydroelectric generation.11 [page 262] The limitation of native title rights to water to traditional uses is evident in the judicial decisions. Yarmirr v Northern Territory (Croker Island case) (1998) 82 FCR 533; 156 ALR 370 upheld the native title right to free access to the sea for travel; to fish and hunt for

personal, domestic or non-commercial communal needs; and to visit and protect places of cultural and spiritual significance.12 The determination made by Olney J was upheld by the High Court on appeal in Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113; [2001] HCA 56. In Daniel v Western Australia [2003] FCA 666, Nicholson J found a ‘right to take water for drinking and domestic use’ because although there was no particular evidence as to water use, ‘it is a necessary incident to life in the exercise of other rights, such as those of access, camping and hunting and foraging’.13 Where contested determinations have been made, they have generally recognised a right to take water for limited traditional uses, for example, Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868.14 Some recent decisions have recognised the right to use natural resources for ‘any purpose’, including commercial purposes, in particular fish, but that right is always subject to both proof and limitation by reference to traditional laws and customs: Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth [2013] HCA 33; Willis on behalf of the Pilki People v Western Australia [2014] FCA 714; Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776 at [357]–[366]. In consent determinations, the right to take and use surface and subterranean water for personal, domestic and community, including social, cultural and spiritual, purposes arises both expressly and as an aspect of the native title holders’ rights to the natural resources. In Western Australian consent determinations, expression of the right is more explicit than most: for example, ‘to take, use and enjoy that water for personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes’.15 More commonly,16 recent consent determination provisions merely contain references such as ‘the right to use the natural water resources’, along with the general limitation on native title rights and interests to ‘personal, domestic and communal use’. An exceptional provision is the total exclusion of ground water

in Victorian consent determinations: see Lovett on behalf of the Gunditjmara People v Victoria (No 5) [2011] FCA 932 at [3(c)] of the determination. [page 263] 13.4 Even if native title to water is limited to traditional uses, albeit extending to modern methods, its significance could potentially be more than minimal but for the NTA. A native title right to use water at common law could be a substantial restraint on water development projects. A water development project is likely to infringe on the native title right, whether by flooding, appropriation of water, disturbance of flow or water quality or impact on habitat. But the NTA has removed the legal significance of native title to water with respect to future water development projects.

The widespread extinguishment of native title 13.5 The widespread extinguishment of native title water in the past obviously further limits the significance of native title to water in the allocation and management of water rights.

Extinguishment of native title pre-1975 13.6 If extinguishment of native title occurred before the commencement of the Racial Discrimination Act 1975 (Cth) (31 October 1975) it is effective to extinguish the native title right without regard to either the Racial Discrimination Act or the NTA. Legislation enacted, and water control projects and rights issued, prior to that time would be effective in so far as they were inconsistent with native title to extinguish or impair native title, even in the absence of any process of consultation or

compensation, and whether or not for a public purpose or public works. Extinguishment occurred before November 1975 by means of: water resources legislation; inconsistent grants; Crown reservations; and creation of water control works.

Water resources legislation 13.7 Water resources legislation in Australia: vests, and has long done so, the right to use and flow, and to the control of water in the Crown; prohibits the diversion and taking of water without a licence; establishes a licensing scheme for the use of water; declares and redefines riparian rights; and provides for domestic uses. The legislation effected a partial although not a complete extinguishment of native title rights to water. The Full Court of the Federal Court has described the vesting clause as ‘a clear example of a statutory provision where all that is vested in the Crown is only such powers of control and management as are necessary to enable the Crown to discharge the powers [page 264] and functions arising under the Act’.17 The operation of the Act ‘did not have the effect of wholly extinguishing native title’, although it destroyed any exclusivity to ‘control the use and enjoyment of the water’.18 On further appeal, the majority of the High Court affirmed the analysis of the Full Court of the Federal

Court,19 as have subsequent decisions of the Federal Court in making determinations as to native title: Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248; Daniel v Western Australia [2003] FCA 666; Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 at [1969]–[1973]; Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776 at [439]–[478].20 Native title rights to water may coexist with the water control regime.

Inconsistent grants 13.8 Land or water resources may have been disposed of in particular areas by a grant or Crown appropriation which is so inconsistent with the maintenance of the enjoyment of the native title right to water as to extinguish native title. Grants of freehold or leases, other than mining or pastoral leases, would have been effective to extinguish native title to water covering that land. Such grants and grants over land surrounding waters could also preclude maintenance of the connection of native title holders to such waters necessary to the continuance of native title. [page 265] Grants of licences under water resources legislation are generally not considered to have been grants which should be construed as so inconsistent with native title rights to water as to have barred coexistence. The grants were not exclusive. However, if there was a necessary inconsistency, if, for example, the native title right established was not confined to only traditional uses, then to that extent there could be extinguishment.21

Crown reservation 13.9 In the case of a Crown reservation for the purpose of water

protection or development, the designation of purpose extinguished any native title right to control the use of the water.22 But no other inconsistent rights were created thereby: The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency … [completely] extinguished native title rights and interests.23

Water control works 13.10 The criteria following the High Court decision in Ward is ‘whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests’.24 The inconsistent use of land is understood as a manifestation of the Crown’s assertion of inconsistent rights. Use for a permanent public work manifests an assertion of inconsistent rights by the Crown.25 Such reasoning sustains the findings of Lee J in Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 at 572–574 and 605–610, where the Federal Court concluded that the use of [page 266] lands for dams, a pumping station and a hydroelectric power station, being ‘permanent public works’, extinguished native title.26 Water control projects built and used before November 1975 would have been effective, in so far as they manifest an assertion of rights necessarily inconsistent with a native title right, to extinguish native title.

Lakes and dams 13.11 Yet, the mere creation of lakes by dams or major water

infrastructure may not extinguish native title to the waters. At trial in Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 at 634–635, the creation of Lakes Kununurra and Argyle was held not to to completely extinguish native title. Aboriginal attachment and connection was considered to be maintained through usufructuary uses and spiritual beliefs in accordance with traditional laws and customs. The full Federal Court has ruled that the flooding of areas of land so as to ‘make it impracticable to enjoy native title rights and interests insofar as they involve activities ordinarily carried out by physical presence on land’ does not necessarily sever the spiritual relationship.27 By ‘continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land can be maintained’.28

Extinguishment 1975–1996 under the Native Title Act 1993 (Cth) 13.12 Section 10 of the Racial Discrimination Act 1975 (Cth) confers on holders of native title ‘security of enjoyment in that property to the same extent as the title holders of other races’. Accordingly after 31 October 1975, if a state law ‘extinguishes only native title and leaves other titles intact the discriminatory burden is removed because the operation of the state law is rendered invalid by s 109 of the Constitution’.29 Such an act could not extinguish or impair native title and to that extent would not be fully effective. The NTA was passed in part to address the invalidity of such acts on or after 31 October 1975. Validation is required if the legislation or grant concerned lacks full force and effect on account of inconsistency with the native title right to water. However, water resource legislation and grants of water rights may coexist in many circumstances, and, accordingly, the need for validation on account of inconsistency with native title rights to water may be uncommon. It may be that generally only Crown reservations

[page 267] and the construction of public works are likely to be considered invalid as a result of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth).30

Water resources legislation 13.13 If needed, water resources legislation enacted between 31 October 1975 and 1 July 1993 was validated — given full force and effect — as a Category D past act pursuant to state and territory validation legislation. The non-extinguishment principle applies, and accordingly suspends the native title rights to water to the extent of inconsistency.

Grants of water licences and rights 13.14 If needed, grants of water licences and rights made between 31 October 1975 and 23 December 1996 were validated as Category D past acts or intermediate period acts.31 The nonextinguishment principle applies, and accordingly suspends the native title rights to water to the extent of inconsistency.

Crown reservations and public works 13.15 The construction after 1975 of public works such as water control projects pursuant to a Crown reservation may be validated as a ‘past act’ under s 19. Public works include any fixture, major earthworks, well or bore that are constructed or established by or on behalf of the Crown, or a local government body or a statutory authority of the Crown, in any of its capacities: NTA s 253. If the public work was: commenced before 1 January 1994, but was not yet completed; or constructed before 1 January 1994; or constructed after 1 January 1994 but pursuant to a reservation

which constitutes a ‘past act’ under which the land or waters were to be used (NTA s 228(9)); the work constitutes a Category A past act and may be validated accordingly: NTA ss 15 and 229(4). Water control projects32 will generally constitute public works and can be validated pursuant to ss 15 and 19. The effect of validation is to completely extinguish the native [page 268] title right to land and water including ‘adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work’ (NTA s 251D) and require the payment of compensation: NTA ss 15(1)(b), 17(1), 19 and 20. The construction or establishment of any public work between 1 January 1994 and 23 December 1996, if otherwise an intermediate period act on account of being located on the site of a former freehold estate, lease or public work, is classified as a Category A intermediate period act: NTA s 232B(7). The effect of a Category A intermediate period, as with a Category A past act, is to completely extinguish native title in relation to the land and waters concerned (NTA s 22B(a)), including land or waters adjacent to a public work: NTA s 251D.

Deemed extinguishment pre-1996 13.16 The deemed extinguishment provisions of NTA ss 23A– 23JA, in particular s 23C(2), empower states and territories to declare the extinguishment of native title to the land or waters on which a public work33 commenced before 23 December 1996 is situated, including adjacent land and waters incidental to the construction, establishment or operation of the work: NTA s 251D.

The extinguishment is effective when the construction or establishment of the public work began: NTA s 23C(2)(b) and (3). In Western Australia v Ward [2002] HCA 29 at [155] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ, the majority of the High Court ruled that the application of s 251D to flood and catchment areas of a reservoir (Lake Argyle) could not be decided without additional findings by the full Federal Court to which the matter was remitted. The significance of the deemed extinguishment provisions with respect to public works would seem to be the extinguishment of native title over adjacent land and waters with respect to water projects constructed before 31 October 1975. Those provisions likely go beyond common law extinguishment.

Compensation 13.17 Compensation is payable in the event of extinguishment arising from a Category A past or intermediate period act: NTA ss 17 and 22G. Compensation is accordingly payable on account of the extinguishment of native title rights arising from the construction or establishment of water control projects from 1975 to 1994 if past acts, and from 1994 to 23 December 1996 if intermediate period acts. Compensation is also payable on account of suspension of native title rights arising from a Category D past or intermediate period act, for example, the grant of water licences: NTA ss 17(2), 22G, and 45. [page 269] The Full Federal Court has determined and awarded compensation in only one contested case to date: Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. The Full Federal Court upheld an award for both economic and noneconomic loss. The amount for economic loss was equated to freehold less a discount for the inalienability of the native title

interest. The substantial amount awarded for non-economic loss reflected the historical cultural and spiritual significance of the interest. The case will undoubtedly be appealed to the High Court.

Confirmation of Crown rights to water 13.18 The states and territories are empowered by NTA s 212(1) (b) to ‘confirm’ any existing rights of the Crown ‘to use, control and regulate the flow of water’. Since the power is merely confirmatory of any ‘existing’ right, its exercise cannot of itself extinguish or impair any native title rights to water.34 Any exercise of the right to ‘use, control and regulate the flow of water’ so as to extinguish or impair the native title is conditioned by the proviso ‘subject to [the Native Title] Act’ at the commencement of s 212(1). The provision is effective only to quiet unfounded concerns that such legislation could be rendered wholly invalid by the Racial Discrimination Act 1975 (Cth).35

Future water development: validation of future acts 13.19 The imposition of state and territory control on native title to water would have required the satisfaction of principles of nondiscrimination under the Racial Discrimination Act. The NTA has permitted future water development projects on less onerous terms. Future water development projects over native title lands or waters not otherwise validated as past acts or intermediate period acts must be validated as future acts. The future act regime makes particular provision to ensure the validation of water development projects: see NTA Pt 2 Div 3 Subdiv H (s 24HA). The scope of NTA s 24HA has been interpreted broadly so as to include the grant of a miscellaneous licence36 to the extent that it was for the purpose of taking water under mining legislation that provided extensively for the management of water in connection with mining

operations. If a particular project or an aspect thereof is not validated under those provisions, it can be validated by compulsory acquisition as an act passing the freehold test. The procedural rights extended to native title holders range from merely the payment of compensation — in the case of the validation of water resources legislation and the construction of water development projects pursuant to pre-23 December 1996 reservations — to requirements of notice and the conferring of an opportunity [page 270] to comment or object upon the grant of water licences, the construction of water development projects for public benefit, and compulsory acquisition.

Water resources legislation 13.20 Water resources legislation, that is, legislation ‘in relation to the management or regulation of … surface and subterranean water’, made on or after 1 July 1993 is given full force and effect, irrespective of native title rights: NTA s 24HA(1) and (3). ‘Management or regulation of water includes granting access to water or taking water’. Native title rights are suspended to the extent of any inconsistency. However, compensation is payable: NTA s 24HA(5).

Grant of water leases, licences, permits or authorities 13.21 The grant of water leases, licences, permits or authorities after 1 January 1994, which are not past acts, are given full force and effect, irrespective of native title rights: NTA s 24HA(2) and (3). Native title rights are suspended to the extent of any inconsistency, and compensation is payable: NTA s 24HA(5). In addition, before the act is done, notice and an opportunity to

comment must be given to affected representative bodies and any registered native title bodies corporate and claimants: NTA s 24HA(7). An ‘opportunity to comment’ confers only: an entitlement to explain why, in their opinion, the act should not be done at all or only on conditions and to draw to the attention of the decision maker information which they possess which they consider the decision maker should know about before doing the act. … It is not a right to participate in the decision whether to issue the permit or a right that entitles the recipients to seek information from the decision maker necessary to satisfy those interests about matters of concern to them.37

It was suggested in Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland (2001) 108 FCR 453; 185 ALR 513; [2001] FCA 414, erroneously it is submitted, that non-compliance with the limited procedural requirements of notification and opportunity to comment does not invalidate the activities.38

Crown reservations and public works 13.22 The construction or establishment of water development projects on or after 1 January 1994, not otherwise validated as past acts or intermediate period acts, are likely to be validated under the future act provisions relating to Crown reservations or facilities for services to the public. [page 271]

Crown reservations 13.23 If the construction or establishment of a water development project is done in good faith, under or in accordance with a Crown or legislative reservation, or in the area covered by the reservation, so long as the impact on native title is no greater than the impact of an act which could have been done under or in accordance with the reservation, the act will be given full force and effect: NTA s 24JA(1). The reservation must have been made on or before 23 December 1996. Since most water resources were

identified some time ago, and reservations were made in the past to protect them for future development, s 24JA is likely to validate most water development projects. The construction or establishment of the public work will extinguish any native title to the land and water concerned, including adjacent land and waters incidental to the public work: NTA ss 24JB(2) and 251D. Compensation is payable: NTA s 24JB(4).

Public works 13.24 If a future water control project is not undertaken pursuant to a pre-23 December 1996 reservation, it may be validated as a facility that is operated for the general public, defined to include a well or bore, ‘a pipeline or other water supply or reticulation facility’, a drainage facility or other device for managing water flows and an irrigation channel or facility: NTA s 24KA(1) and (2). The provision includes incidental aspects of a water development project which lie outside a reservation area. Section 24KA would not seem to include major diversion or control dams. Two conditions must be met for validation to take place under s 24KA: native title holders must have reasonable access; and legislation must make provision for the preservation or protection of areas or sites of particular traditional significance to Indigenous people. In the event of validation, native title is extinguished to the extent of inconsistency: NTA s 24KA(4). 13.25 Under the validation provisions of s 24KA, native title holders and registered native title claimants have the procedural rights of a freeholder, which are likely to contemplate notice, right of objection and consideration of the objection.39 However, on non-exclusive agricultural or pastoral lease land, the procedural rights are merely those of the leaseholder. If, in the exercise of the

procedural rights, any matters are to be considered, those matters must include the native title rights and interests: NTA s 24KA(7A). Compensation is payable.40 [page 272]

Compulsory acquisition 13.26 Major water development projects, if not undertaken pursuant to reservations made before 23 December 1996 and not validated as a facility operated for the general public, may be validated as an act passing the freehold test upon compulsory acquisition: NTA s 24MD. The practices and procedures adopted in compulsorily acquiring the native title rights and interests must not be such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests: NTA s 24MD(2)(ba). Those rights normally contemplate notice, right of objection and consideration of the objection.41 The right to negotiate is not applicable where the purpose of the acquisition is to confer rights on a government, and accordingly is not applicable to a government-operated water control facility: NTA s 26(1). Nor is the right to negotiate applicable where the purpose of the acquisition is to provide an infrastructure facility. ‘Infrastructure facility’ is defined to include ‘a dam, pipeline, channel or other water management, distribution or reticulation facility’: NTA s 253.

No protection of habitat under native title under s 211 13.27 Section 211 of the NTA exempts native title rights to fish and hunt for ‘personal, domestic or non-commercial communal needs’ from the requirement of a licence or permit. However, it does not restrain construction of water control projects or the

grant of inconsistent interests that would damage or deplete the water habitat.

Indigenous land use agreements 13.28 Indigenous land use agreements42 (‘ILUAs’) (NTA 1993 ss 24BA–24EC) may cover almost any matter concerning native title, including provision for agreed recognition, authorisation of future acts, the relationship of native title to other interests and extinguishment by surrender to the government: NTA 1993 ss 24BB, 24CB and 24DB. The agreements enable the establishment of an agreed cooperative relationship between the native title parties and the water resource developer, hopefully without costly litigation resulting in an imposed outcome. ILUAs could obviously be of great significance in the authorisation of the establishment of water control and development projects. They can provide the legal certainty and security of tenure that the validation of the grant of the future act affords, and the consent and support of the native title party to the carrying on of the activities under the grant. The benefits provided to native title parties might include financial payments by way of compensation, education, employment and business opportunities, land access [page 273] guarantees, cultural and site protection regimes, liaison and monitoring practices, and environmental protection and rehabilitation. The native title party might also be assured of the support of the developer, who otherwise might be opposed, to securing a native title determination. A significant example of an ILUA in the context of a water development project is the Ord Final Agreement ILUA,43 which

was registered as an ILUA with the National Native Title Tribunal (NNTT) in August 2006. Parties to the agreement include the state of Western Australia, Miriuwung Gajerrong Aboriginal Corporation, pastoral lessees affected, Conservation Commission of Western Australia and Ord River District Cooperative. The agreement was drawn up to provide for the expansion of the Ord River irrigation scheme’s second stage (Ord Stage 2), covering 65,000 hectares. Consent determinations were issued in 2003 and 2006 with respect to the area. The Ord Final Agreement ILUA validates and provides compensation for the original development of the Ord River Scheme and its expansion in Ord Stage 2. The agreement provides for the acquisition and extinguishment of native title over the land and waters, and consents to the grant of titles and leases over the area. Compensation provided to the Miriuwung Gajerrong provided included: operating funds of $1 million per annum for 10 years for the Miriuwung Gajerrong Aboriginal Corporation; payment to an investment trust of $5 million initially, then $1 million per annum over nine years, with 50 per cent of surplus to be retained and 50 per cent for community ventures; the Ord Enhancement Scheme provided with $11.195 million over four years to develop partnerships to address Aboriginal social and economic issues; five per cent of irrigated farmland and town land released for housing and industrial development; freehold title to 50,000 hectares, including community living areas; freehold title to 150,000 hectares of conservation parks with leaseback to the Department of Conservation and Land Management, and joint management of parks with $6 million funding; and Aboriginal development package providing for employment and business opportunities in the development of the Ord River

Scheme, with one half of park jobs to be reserved for the Miriuwung Gajerrong peoples. In common with other resource development agreements, the Ord Final Agreement ILUA provided for the validation of the issuance of tenures and acquisitions, assurances of support and absence of objection for the carrying out of development activities. The agreement is founded on recognition of native title established in already existing consent determinations. [page 274]

The National Water Initiative and Indigenous access 13.29 The NWI reflects the limited water rights which arise from native title. It provides for a limited Indigenous role in the planning process and contemplates the recognition of rights of access limited to traditional uses only. The NWI declares that an outcome of the state and territory water access entitlements and planning frameworks will be the recognition of Indigenous needs in relation to access and management and the outcome will be achieved by the modification of existing legislation and administrative regimes to incorporate:44 ‘Indigenous access to water resources, in accordance with relevant Commonwealth, State and Territory legislation, through planning processes that ensure: — inclusion of Indigenous representation in water planning wherever possible; and — water plans will incorporate Indigenous social, spiritual and customary objectives and strategies for achieving these

objectives wherever they can be developed.’ Water planning processes which ‘take account of the possible existence of native title rights to water in the catchment or aquifer area. The Parties note that plans may need to allocate water to native title holders following the recognition of native title rights in water under the Commonwealth Native Title Act 1993’. ‘Water allocated to native title holders for traditional cultural purposes will be accounted for.’

Native title 13.30 There is no requirement in the NWI that explicit provision be made for native title. The only requirement is that planning processes take account of native title to water and that if native title to water is recognised, an allocation may be necessary. As a result, New South Wales is the only jurisdiction that has made explicit allowance in its water legislation for native title. Native title is provided for, under the Part entitled ‘Basic Landholder Rights’, under the Water Management Act 2000. It is declared that ‘a native title holder is entitled, without the need for an access licence, water supply work approval or water use approval, to take and use water in the exercise of native title rights’.45 Native title rights are defined to refer to non-commercial traditional and domestic uses,46 in accordance with the narrow understanding adopted in Australian law. [page 275] Queensland has made provision in the Water Act for an Aboriginal or Torres Strait Islander person to take or interfere with water for traditional activities or cultural purposes in their traditional area, irrespective of any finding of native title.47 It is elsewhere declared in the Water Act that part of its purpose is to

recognise ‘the interests of Aboriginal people and Torres Strait Islanders and their connection with the landscape in water planning’.48 Victoria has made provision49 for rights for Aboriginal traditional owners to take and use water for traditional purposes under an authorisation order under s 85(1) of the Traditional Owner Settlement Act 2010. The Act establishes an alternative means of resolving native title claims. But there is no explicit recognition of native title rights in the Traditional Owner Settlement Act. 13.31 Although no explicit provision for native title rights is made in the legislation of the other jurisdictions, several jurisdictions asserted in their implementation plans that the provision for domestic uses and environmental flows effectively provides for native title rights if established. Western Australia advised that ‘in most cases the protection of in situ environmental water needs protects cultural values’.50 Tasmania asserted that ‘indigenous rights are covered through provisions’ in the Water Management Act ‘relating to water rights for persons in casual use of land’.51 Queensland commented that ‘traditional indigenous uses are generally provided for by ensuring there are sufficient environmental flows’.52 The Northern Territory expressed a similar opinion.53 South Australia commented that it is likely that Indigenous land-use agreements under the NTA will be ‘adopted for indigenous access to water resources’.54 Victoria merely asserted that in the single consent order in the state to date, ‘there is no provision relating to the allocation of water under the native title provision for traditional cultural purposes’.55 It might be said that the limited nature of native title rights to water recognised in Australian law has made it unnecessary to give greater recognition to native title in the state and territory legislation. [page 276]

Planning processes 13.32 The NWI requires that state and territory legislation incorporate Indigenous access to water resources, in accordance with relevant Commonwealth, state and territory legislation, through planning processes which include Indigenous representation ‘wherever possible’. It is far from clear what is meant by ‘Indigenous access to water resources, in accordance with relevant Commonwealth, state and territory legislation’. The relevant legislation would be that relating to native title and sacred sites. Native title has already been addressed. The legislation relating to sacred sites does not contemplate access or use of substantial water resources, but is restricted to ceremonial and cultural uses. Explicit legislative provision in planning processes requiring Indigenous representation in the meeting of such objects is not an onerous requirement, but has been met only in New South Wales. The legislation of all the jurisdictions contemplates wide consultation and representation of affected interest groups in water management planning. But only in New South Wales does the legislation explicitly require that Indigenous representatives be consulted. Management committees responsible for the preparation of management plans must include at least two ‘Aboriginal persons appointed to represent the interests of Aboriginal persons’.56 In South Australia, a regional natural resources management board, responsible for the preparation of management plans, may include representatives of Aboriginal people ‘as the Minister considers to be appropriate’.57 The legislation of Western Australia and the Northern Territory provides for representation of Indigenous interests by requiring the appointment of experts in Aboriginal affairs.58 Only New South Wales and South Australia make explicit legislative provision in the objects clauses of the water management legislation for Indigenous access to water. Water

management plans must necessarily accordingly have regard to such object. In New South Wales, the declared object includes the recognition of the ‘benefits to the aboriginal people in relation to their spiritual, social, customary and economic use of land and water’.59 The objects clause in the South Australian legislation requires that ‘consideration should be given to Aboriginal heritage, and to the interests of the traditional owners of any land or other natural resources’.60 Despite the absence of an explicit legislated requirement in each jurisdiction, all governments have indicated that Indigenous stakeholders are and will be consulted where they are an affected interest group. In Victoria, Indigenous stakeholders were [page 277] consulted in the development of the Victoria Water Management Strategy, which provides for Indigenous involvement in waterway management.61 Similarly, Western Australia provided an update to the effect that Indigenous water interests were taken into account in water planning, and traditional owner groups were consulted widely in the development of the Pilbara Groundwater water allocation plan.62 New South Wales has stressed the representation from the local Aboriginal committee on each water sharing plan committee. South Australia has emphasised the Aboriginal Statewide Advisory Committee and its function to advise on natural resource management issues.63 In the Northern Territory, planning processes have included Indigenous representation, including through membership of planning advisory groups.64 The Water Act 2007 of the Commonwealth deals with the arrangements governing the Murray-Darling Basin (‘MDB’). The MDB Authority and the Minister were required to have regard to ‘social, cultural, Indigenous and other public benefit issues’65 in the development of the Basin Plan. To further that goal, the Basin Community Committee, an advisory committee to the authority,

was required to establish ‘an Indigenous water subcommittee, to guide the consideration of Indigenous matters relevant to the Basin’s water resource’.66 There is no statutory requirement of Indigenous representation, but rather of a person with expertise in Indigenous matters.67 The Basin plan itself, however, requires consultation with relevant Indigenous organisations, and the consideration of native title rights, Indigenous land use agreements and risks arising to the protection of Indigenous values.68

Indigenous access 13.33 New South Wales has made special provision for Indigenous access to water: water sharing plans may provide Indigenous access to water for cultural purposes in the form of Aboriginal cultural access licences. Cultural access licences have been granted, for the Dorrigo plateau and for the Murrumbidgee. In addition, coastal water sharing plans allow for Aboriginal commercial access licences.69 [page 278] No water management plans in the Australian Capital Territory, South Australia, Tasmania, Victoria or Western Australia have provided any allocation for Indigenous customary social or spiritual needs or for any specifically Indigenous purpose.70 Indigenous water reserves to meet economic and social needs have been identified in several water resource plans in Queensland, although the allocation is small.71 Provision has also been made in the Cape York Peninsula Heritage Act 2007 requiring that a water allocation be made ‘for the purpose of helping Indigenous communities meet their social and economic aspirations’.72 The government73 explained that this was directed in part to protecting native title rights under the Wild Rivers Act

2000. An Indigenous water reserve was also recognised in the Tyndall limestone aquifer plan in the Northern Territory.74

Native title to water of limited significance 13.34 Native title to water is of limited significance in Australia because the burden of proof is extremely onerous, the content of the right has been ‘frozen’ and the degree of past extinguishment declared by common law and legislation, the NTA, is widespread. The past extinguishment of native title to water by water control projects and infrastructure is extensive. Moreover, imposition of state control and limits on native title rights to water have been permitted by the NTA with respect to future water developments on less onerous terms than nondiscrimination would require. The NTA ensures that water development projects can be undertaken with limited regard to native title rights. Native title has a subordinate place in the allocation and management of water rights in Australia. The NWI has regard to the significance of access to water to Indigenous peoples’ traditions, customs, culture and society but does not provide for substantial rights of Indigenous access. State and territory legislation generally assumes that native title rights to water can be addressed by the provision for basic landholder rights, domestic usage and environmental flows. The NWI requires that planning processes have regard to Indigenous access to water but in no way mandates such access, and to date allocation for a specifically Indigenous purpose has been limited.

1.

2.

In Western Australia v Ward [2002] HCA 28 (8 August 2002) at [16] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, it was declared that ‘pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2] (1992) 175 CLR 1; 107 ALR 1’. NTA s 223(1).

3.

See Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 at

[720] per Barker J. 4.

5. 6.

7. 8. 9.

10.

11.

Neowarra v Western Australia [2004] FCA 1092; Gumana v Northern Territory (No 2) [2005] FCA 1425; Rubibi Community v Western Australia (No 6) [2006] FCA 82; Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2010] FCAFC 26; Banjima People v Western Australia (No 2) [2013] FCA 868, affirmed in Western Australia v Banjima People [2015] FCAFC 84; Warrie (on behalf of the Yindjibarndi People) v Western Australia (Yindjibarndi No 2) [2017] FCA 803. Griffiths v Northern Territory [2007] FCAFC 178; Western Australia v Banjima People [2015] FCAFC 84. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1; Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 at 500 and 544; Bodney v Bennell (2008) 167 FCR 84; 249 ALR 300; [2008] FCAFC 63 at [48]; Wyman on behalf of the Bidjara People v Queensland [2015] FCAFC 108 at [299]–[302] and [426]–[428]. Yorta Yorta (2002) 194 ALR 538 at [90] per Gleeson CJ, Gummow and Hayne JJ. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51 per Brennan J; also see at CLR 110; ALR 83 per Deane and Gaudron JJ. In Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at [83] per Gleeson CJ, Gummow and Hayne JJ, the High Court declared that the ‘key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?’ And see Rubibi Community v Western Australia [2001] FCA 607 at [136]–[142] per Merkel J, and Bodney v Bennell (2008) 167 FCR 84; 249 ALR 300; [2008] FCAFC 63 at [120]. The agreed determinations to date of native title rights to water have always been expressed to be held exercisable subject to traditional laws and customs. In the Western Australian agreements, the rights to water and resources have been expressed to include the right to take water and other resources in accordance with traditional laws and customs for personal, domestic, social, cultural, religious, spiritual or non-commercial communal needs. See R Bartlett, Native Title in Australia, 3rd edn, LexisNexis Butterworths, Sydney, 2015, Chapter 27: ‘Consent Determinations’ at [27.10]–[27.13]. At common law, neither surface nor subterranean water is subject to absolute ownership, and some of the agreements restate the common law in that respect: ‘notwithstanding anything in this determination, the native title rights and interests do not confer on native title holders rights of ownership in respect of flowing water’ (Kaurareg People v Queensland [2001] FCA 657; and see Wik Peoples v Queensland [2000] FCA 1443 and Anderson v Western Australia (Spinifex case) [2000] FCA 1717). If the relationship of an Aboriginal society to a territory could be established to be exclusive, it could give rise to the right to use and enjoy water for all purposes. In the United States, the courts have recognised such a relationship and have thus

recognised an Indian right to use water for irrigation purposes, although it is not clear that the right arises from native title rather than the act of reserving Indian lands. See, generally, R Bartlett, Aboriginal Rights to Water in Canada, Canadian Institute for Resource Law, Uni of Calgary, 1988. 12. 13.

To like effect, De Rose v South Australia [2002] FCA 1342 at [920] per O’Loughlin J. Daniel v Western Australia [2003] FCA 666 at [490]; see also at [510] and [1163].

14.

Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 at [774]–[775]. Cheinmora v Western Australia (No 3) [2013] FCA 769 at [8(iv)] of the determination.

15. 16.

17.

18. 19.

See Far West Coast Native Title Claim — Roberts v South Australia (No 7) [2013] FCA 1285 at [10(g)] and [11] of the determination; Bandjalang People (No 1) and (No 2) v Attorney General (NSW) [2013] FCA 1278 at [3(b)] and [8] of the determination; Fisher (on behalf of the Ewamian People (No 2)) v Queensland [2013] FCA 1249 at [6(b)] and [7(e)] of the determination; Brady (on behalf of the Western Yalanji People (No 4)) Queensland [2013] FCA 958 at [6(b)] and [7(e)] of the determination; Fulton v Northern Territory [2013] FCA 1088 at [9(d)] and [15] of the determination; Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory [2011] FCA 766 at [6(d)] and [8] of the determination. ‘We do not consider that the mere vesting effected under section 4(1) [Rights in Water and Irrigation Act (WA)] evidenced intention to extinguish native title rights’: Western Australia v Ward (2000) 170 ALR 159 at [400] per Beaumont and von Doussa JJ, at [861] per North J. Western Australia v Ward (2000) 170 ALR 159 at [405] per Beaumont and von Doussa JJ. Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1 at [263] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. More recently, the High Court in ICM Agriculture v Commonwealth [2009] HCA 51 has seemingly adopted the position taken in Hanson’s case that the common law rights of a riparian owner were extinguished by the vesting provisions. French CJ, Gummow and Crennan JJ declared that: the reasoning of the Full Court of the Supreme Court of New South Wales in Hanson v The Grassy Gully Gold Mining Co, that the 1896 Act vested in the Crown the common law rights of riparian owners, is to be preferred to the slightly delphic observation of Fullagar J in Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 at 397 suggesting that riparian rights survived those vesting provisions. To similar effect, Hayne, Kiefel and Bell JJ observed that: there would seem to be much force in the view that Hanson’s case was rightly decided when it held the common-law riparian rights were abolished New South Wales by the Water Rights Act of 1896. The common law rights of riparian owners were, of course, replaced by statutory rights. There is no such mechanism with respect to common law native title rights, and it is not considered that the analysis in ICM Agriculture v Commonwealth [2009] HCA 51 would be applied to native title rights. Moreover, the common law rights of riparian owners were very much in contemplation at the time of the enactment

of the vesting provisions of the water resources legislation; not so with respect to common law native title rights. 20.

21.

22. 23.

24. 25. 26. 27.

28.

Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 at [120(i)] per Olney J; Daniel v Western Australia [2003] FCA 666 at [820] and [867]–[870] per Nicholson J. Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868 at [1969]–[1973]. See also Neowarra v Western Australia [2003] FCA 1402 at [637]–[641]. ‘To avoid doubt’, s 44H was enacted to make it clear that, provided the grant, issue or creation of a lease, licence, permit or authority is valid in accordance with the NTA, any activity required or permitted and done in accordance therewith prevails over any native title rights and interests. The ‘existence and exercise of the native title rights and interests do not prevent the doing of the activity’: NTA s 44H(d). The Explanatory Memorandum, 6.26–6.28, to the Native Title Amendment Bill 1997 (Cth) included the example of irrigation activities undertaken under an irrigation licence issued in accordance with s 24HA. Western Australia v Ward [2002] HCA 29 at [219] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ. Western Australia v Ward [2002] HCA 29 at [221]. The mere reservation of lands under public lands legislation for purposes of ‘public utility’ does not confer rights upon third parties and does not, thereby, suspend or extinguish the rights of use of native title holders. In Williams v A-G (NSW) (1913) 16 CLR 404 at 467, Gavan Duffy and Rich JJ declared of a reserve for public purposes that ‘the public has no right with respect to them which can be enforced in a court’. Isaacs J declared that the reservation of lands ‘is complete before and independently of the creation of any rights’: (1913) 16 CLR 404 at 440 (and see at 433–435); also see at 429 per Barton ACJ. See also Randwick Corporation v Rutledge (1959) 102 CLR 54 at 74–77 per Windeyer J. Western Australia v Ward [2002] HCA 29 at [215] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ. Western Australia v Ward [2002] HCA 29 at [215], and see [151] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ. To like effect: Wandarang v Northern Territory [2000] FCA 923 at [127] per Olney J. The full Federal Court in Western Australia v Ward (2000) 170 ALR 159 at [252]. At [243] per Beaumont and von Doussa JJ and at [682] per North J, the court rejected a state submission (recorded at [245]) on appeal that ‘physical occupation of the land is a necessary requirement for continuing connection with the land’. Ibid at [252]. On further appeal, the High Court maintained the rulings of the full court and rejected the state submission to the contrary: Western Australia v Ward [2002] HCA 28 at [63] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

29. 30.

Ibid at [108] per Gleeson CJ, Gaudron, Gummow, Hayne JJ. Ibid at [108] per Gleeson CJ, Gaudron, Gummow, Hayne JJ.

31. 32.

NTA ss 232, 232B and 232E. Water control projects constructed after 1 January 1994 are problematic with respect to reservations for such purpose made before 31 October 1975. The problem is the requirement in s 229(4)(c) that the reservation must be a ‘past act’ within s

228(9). A reservation made before 31 October 1975 would constitute an ‘act’ under s 226(2)(e) or (f), but it would not ‘apart from [the NTA be] … invalid to any extent’ on account of native title, as required in order to constitute a ‘past act’: NTA s 228(2). A Crown reservation for the purpose of water protection or development will generally extinguish any native title right to control the use of the water, and, accordingly, invalidity would arise with respect to a reservation effected between 31 October 1975 and 1 January 1994: Western Australia v Ward [2002] HCA 29 at [219] and [222] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. However, any reservation made prior to 31 October 1975 could not be invalid on account of native title because the Racial Discrimination Act 1975 (Cth) was not then in effect so as to bring about such invalidity. It is suggested that water control projects commenced on 1 January 1994 or after pursuant to a reservation effected before 31 October 1975 cannot be validated as a past act pursuant to ss 15 and 19. It would require validation as a future act in accordance with s 24JA, s 24KA or s 24MD. 33. 34. 35. 36. 37. 38.

39. 40.

41. 42. 43. 44.

It constitutes a ‘previous exclusive possession act’ for the purposes of the deemed extinguishment provisions of NTA ss 23A–23JA. The power is further restricted with respect to extinguishment by s 212(3). See R Bartlett, Native Title in Australia, 3rd edn, LexisNexis Butterworths, Sydney, 2015, Chapter 21: ‘Extinguishment and Suspension: 1975–1996’ at [21.7]–[21.9]. FMG Pilbara Pty Ltd [2012] NNTTA 103 at [44]–[58]. Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603 at [38] per Heerey, Drummond and Emmett JJ. Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland (2001) 108 FCR 453; 185 ALR 513; [2001] FCA 414 at [48]–[58] per French J; at [115]–[121] per Dowsett J. See R Bartlett, Native Title in Australia, 3rd edn, LexisNexis Butterworths, Sydney, 2015, Chapter 23: ‘Future Act Process’ at [23.13] for why the suggestion is considered to be erroneous, as being contrary to the governing provisions in the NTA regarding the future act process, in particular s 24OA. For example, see Land Administration Act 1997 (WA) Part 9 and Water Agencies (Powers) Act 1984 (WA) Part 7. On the assumption the act could not have been validly done or could only have been done if compensation was paid if the native title holders instead held ordinary title (freehold) to the land or to the land adjoining the waters concerned: NTA s 24KA(5). For example, see Land Administration Act 1997 (WA) Part 9 and Water Agencies (Powers) Act 1984 (WA) Part 7. See R Bartlett, Native Title in Australia, 3rd edn, LexisNexis Butterworths, Sydney, 2015, Chapter 26: ‘Indigenous Land Use Agreements’. See R Bartlett, Native Title in Australia, 3rd edn, LexisNexis Butterworths, Sydney, 2015, Chapter 26: ‘Indigenous Land Use Agreements’ at [26.29]. NWI cll 25(ix), 27 and 52–54. See also National Water Commission, Update of Progress in Water Reform, February 2008, p 35. See generally National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 1 and Part 2 Appendix C: ‘Progress against National Water Initiative actions’; National Water Commission, A Review of Indigenous Involvement in Water Planning,

2013, 2014. 45. 46.

Water Management Act 2000 (NSW) s 55. Water Management Act 2000 (NSW) Dictionary: ‘“native title rights” means nonexclusive rights to take and use water for personal, domestic and non-commercial communal purposes (including the purposes of drinking, food preparation, washing, manufacturing traditional artefacts, watering domestic gardens, hunting, fishing and gathering and recreation, cultural and ceremonial purposes).’

47. 48.

Water Act 2000 (Qld) s 20B. Water Act 2000 (Qld) s 10(2).

49.

Water Act 1989 (Vic) s 8A. In 2013, the Dja Dja Wurrung Recognition and Settlement Agreement was reached under the Traditional Owner Settlement Act. It includes a water authorisation order for a five-year term recognising the right to take water from a waterway or bore for traditional purposes. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Western Australia.

50.

51. 52. 53.

Implementation Plan for the National Water Initiative — Tasmania, September 2006, p 28. Queensland State National Water Initiative Implementation Plan, January 2006, p 26.

54.

National Water Initiative Implementation Plan, Northern Territory, 2006, section 2.7. South Australian Implementation Plan; National Water Initiative, 2005, p 24.

55. 56.

Victorian National Water Initiative Implementation Plan, April 2006, p 20. Water Act 2000 (NSW) ss 13(1)(e) and 14.

57.

Natural Resources Management Act 2004 ss 25(2)(b) and 79. The NRM Alintjara Wilurara board consists entirely of Indigenous members. Much of the area is Indigenous land. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, South Australia. Rights in Water and Irrigation Act 1914 (WA) ss 26GL and 26GK; Water Act (NT) s 24(3).

58. 59. 60.

Water Act 2000 (NSW) s 3(c)(iv). Natural Resources Management Act 2004 s 7(2)(h).

61.

62.

National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Victoria. National Water Commission, Update of Progress in Water Reform, February 2008, p 35. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Western Australia.

63. 64.

South Australian Implementation Plan; National Water Initiative, 2005, p 24. National Water Commission, Australia’s Water Blueprint: National Reform Assessment

2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Northern Territory. 65. 66.

Water Act 2007 (Cth) ss 21(4)(c)(v) and 22. Water Act 2007 (Cth) ss 202(3) and (5) and 204.

67.

The Water Amendment (Review Implementation and Other Measures) Bill 2015 (Cth) will require that at least two Indigenous persons be members of the Basin Community Committee. The Bill was given its second reading on 3 December 2015. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Commonwealth.

68.

69.

70.

71.

72. 73.

74.

New South Wales National Water Initiative Implementation Plan, 2006, p 27. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, New South Wales. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, ACT, South Australia, Tasmania, Victoria, Western Australia; National Water Commission, A Review of Indigenous Involvement in Water Planning, 2013, 2014. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Queensland. Cape York Peninsula Heritage Act 2007 (Qld) s 27. , State of Queensland (Department of Natural Resources and Water), Cape York Peninsula Heritage Act, 17 October 2008. National Water Commission, Australia’s Water Blueprint: National Reform Assessment 2014, Part 2 Appendix C: ‘Progress against National Water Initiative actions’, Northern Territory; National Water Commission, A Review of Indigenous Involvement in Water Planning, 2013, 2014.

[page 279]

Part 4 WATER RESOURCES PLANNING This Part explores: the history, purposes and effects of water resources planning, focusing on the allocation or ‘sharing’ of water resources from the community perspective; the elements of the water allocation planning system, focusing on the procedures for planning at thestate and Commonwealth levels; the content of water allocation plans at the state level and effect of the Murray-Darling Basin Cap and the Commonwealth Basin Plan; and the legal effect of a water allocation plan at the state and Commonwealth levels.

[page 281]

14 AN OVERVIEW OF THE HISTORY, PURPOSES AND EFFECTS OF WATER RESOURCES PLANNING 14.1 The development of water resources planning is one of the key achievements of the Australian water reforms undertaken since 1994, especially in the implementation of the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’).1 It is the foundation of the establishment of an effective system of tradable water access entitlements, discussed in Parts 5 and 6 of this book. Water resource planning has been undertaken mainly at the state level. However, since 2007, the Commonwealth has entered the water resource planning field with significant, even determinative, effect in the Murray-Darling Basin (‘MDB’) because the states were showing themselves to be incapable of making the difficult political decisions to limit their own use of water resources in the interests of achieving environmentally sustainable levels of consumptive water use across the whole MDB. This chapter opens with a brief explanation of the benefits of a planning system for natural resources management. It then gives an overview of the history, purposes and effects of water resources planning, with a focus on sharing or allocating natural water resources. It concludes with contemporary questions about integrating this natural water resources allocation planning system

with urban water planning, including the development of alternative sources of water supply (such as fit-for-purpose water re-use and recycling, and urban storm water capture) and storage by managed aquifer recharge. These water supply planning processes are supplemented by techniques for water demand management in order to meet broader water security and sustainability goals. 14.2 The defining purpose of a system of planning is to set the community perspective for the management of natural resources — to define detailed objectives and principles to guide routine public (that is, governmental) and private decision making in the conservation and development of the resources. A planning system confers three significant benefits on a regime of natural resources management, which are described as follows in the context of sharing or allocating water resources. [page 282] First, a planning system provides the opportunity: to gather information about the resource and its environmental, social and economic values; to identify the existing legal rights and interests that attach to the resource and its values; to evaluate present and future resource needs; and to set guidelines for future management and regulatory decision making. As the NWI acknowledges, the planning process itself provides the forum for ‘settling the trade-offs between competing outcomes for water systems … [I]t is an important mechanism to assist governments and the community to determine water management and allocation decisions to meet productive, environmental and social objectives.’2

Second, careful planning is essential in managing the cumulative effects of resource use and the integration of resources management. Plans provide the guidelines for governmental decision making about individual applications for water entitlements and associated statutory permissions. Without those guidelines, it is difficult for administrative decision makers to set limits on or refuse applications for new entitlements and permissions because of the predicted cumulative effects. Thus, water resource planning can set limits on the use of water resources to achieve a sustainable yield from the resource for water entitlement holders. Similarly, setting limits is important for ensuring that water is available to sustain water-dependent ecosystems by environmental water allocations: see chapter 16 at [16.20] ff. To achieve integrated natural resources management, water resource plans can identify the changes that need to be made to land use and management plans. Third, water resource planning can also set the framework for monitoring the effects of water resource taking and use against the objectives of the plan, for evaluating the results of the monitoring and for reporting on the results and evaluation to members of the public. In this way, resource planning should be seen as an iterative process requiring periodic review and revision of the terms of the resource plan by both the government and the community.

The evolution of water resources planning The era of perceived abundance 14.3 In the first three decades after the Second World War, the allocation of water resources to human consumptive uses in urban and rural settings increased significantly.3 There was a particularly rapid increase in the development of irrigated agriculture in the MDB states of New South Wales, Queensland and Victoria, with the accompanying

[page 283] development of water infrastructure and the grant of various forms of water access rights (see Figure 14.1). This development enjoyed a high level of state sponsorship and financial subsidy in an era of perceived water abundance.4 There was little water resources planning or legislative prescription to guide the governmental decisions on water allocation, and no consideration of allocating water to the natural environment.5

Figure 14.1: Development of irrigated areas in Australia: 1920– 2000.6 14.4 In the absence of water resources planning, there was little formal guidance on the criteria to be applied in the exercise of broadly expressed statutory powers to license the taking and use of water and the construction of works for these purposes. While the responsible government agencies developed non-statutory policies, these may have received limited formal analysis outside the context of appeals against licensing decisions. The absence of

policy guidance has been discussed by Dragun and Gleeson in relation to New South Wales appeal determinations before water resource planning was established: It is noteworthy that if these appeal mechanisms are invoked, there is a lack of specific criteria by which these bodies determine whether a license should or should not be granted, or should be granted subject to limitations. … Policies adopted by the [NSW Water Conservation and Irrigation Commission] on criteria to be satisfied before licenses are issued are presumably subject to change according to water availability and

[page 284] perceptions of efficiency and equity. These policies may well be put by the commission to local land boards, or to the stipendiary magistrate if a hearing is required. The absence of guidelines throws the courts into a creative role …7

14.5 The creative instincts of the appellate bodies resorted to general notions of allocating water in the public interest to achieve an equitable distribution of the benefits of the resource for reasonable uses. In Water Conservation and Irrigation Commission v New South Wales Pastoral Co Ltd (1945) 24 NSWLVR 54 at 56–578 Roper J acknowledged the Commission’s approach to the allocation of water resources in determining the appeal against the decision of the Local Land Board to grant a water licence in addition to the already substantial water entitlements held by the applicant company: The Commission, as the guardian of the public interest, has the responsibility of ensuring an equitable apportionment of the water available. It is concerned to meet the reasonable requirements of as many people as possible and to adjust the claims upon the available supply as fairly as possible to each of the claimants. Its objection that an applicant would, if his application were granted, get more than his share of the limited supply must be given effect to in my opinion if it is made out, and the opinion of the officers on the matter must be given very great weight.

However, Roper J dismissed the Commission’s appeal because ‘it has not been shown that the granting of the license, subject to the safeguards imposed by the conditions submitted by the

Commission and accepted by the applicant and recommended by the board, would be prejudicial to the public interest in the sense that other people would be deprived of their reasonable share of the available water or otherwise’: Water Conservation and Irrigation Commission v New South Wales Pastoral Co Ltd (1945) 24 NSWLVR 54 at 57. As Dragun and Gleeson point out, the consideration of the public interest across a number of appeals ‘exemplifies the problems that can arise and reflects on some issues of fine tuning, but does little in specifying criteria on what constitutes more equal and beneficial use of water’.9 Formal policies or plans adopted by the executive government after appropriate consultation would perform that function much better. 14.6 A similar concern with the equitable balancing of water access rights is evidenced in the Queensland merits review case of Shooter v Commissioner of Irrigation and Water Supply (1972) 39 QCLLR 11.10 There, the Commissioner had refused several applications for licences to install works to pump water from the upper reaches of the Condamine River because of concerns regarding ‘over appropriation’. In allowing the appeals from the Commissioner’s decisions, the Land Court rejected the interpretation of the Water Acts 1926–1968, saying that the Commissioner’s functions were to balance the demands for water of the new applicants with the interests of other riparian owners whose existing [page 285] rights may be affected. The legislation, and the Land Court’s interpretation of it, provided no basis for the sustainable management of scarce water resources. 14.7 The history of water resources management across various Australian jurisdictions reveals a similar set of problems that needed to be dealt with in water resource plans. Dr Poh Ling Tan

explained some of the history of how these problems arose in New South Wales, Queensland, and Victoria.11 Her accounts of water resource management in these three jurisdictions identified common issues of: over-allocation of water, partly because of the historical methods used to allocate water, which was by the area and type of crop to be irrigated rather than a volumetric allocation based on a careful assessment of the available water resource; the need to introduce plans to establish limits on water allocation, both to provide security (reliability of expected allocation each year) for water entitlement holders and to allocate water to environmental flows and other public benefit outcomes, such as containing the salinisation of land and water; the need to reduce consumptive allocations in order to provide adequately for environmental flows (commonly called ‘clawback’); the need to provide equitable formulae for restrictions on the taking and use of water in times of severe scarcity, and the priorities to apply in imposing those restrictions; the need to provide for certainty and flexibility of entitlements so as to permit trade in water entitlements, which would provide incentives for entitlement holders to be more efficient in their use of water; the problem of activating ‘sleeper’ (unused) and ‘dozer’ (partially used) entitlements by permitting trade of their unused water, which would exacerbate problems of over-allocation for entitlement holders with lower levels of security; 12 and the need to manage and regulate the capture and use of floodplain and overland flows to ensure the proper management of water resources in streams, lakes and aquifers.

Perceptions of water scarcity 14.8 These issues were typically the result of the cumulative impacts of allocation practices between the 1950s and the early

1990s, when water resources were being developed and allocated in an era of perceived abundance. The appreciation of water scarcity and the perception of the adverse effects of cumulative impacts dawned at slightly different times in the different states; perhaps beginning in New South Wales [page 286] and South Australia in the 1970s,13 in Victoria in the 1980s14 and in Queensland in the 1990s.15 The emergence of formal water resources planning in these jurisdictions followed, as did the judicial appreciation of the issues of sustainable water management. McClelland J of the New South Wales Land and Environment Court commented in the 2004 case of Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [2]: There is a view, still advanced by some commentators, that Australia has virtually unlimited water which only needs to be effectively harvested to make the vast area of semi-arid land within the country productive. From the late 19th century to the latter part of the 20th century this was the typical view both of those responsible for managing water resources and of the farmers who utilised the water. Although no doubt made with the best of intentions, management decisions designed to facilitate the maximum utilisation of water for farming purposes have proved to be unsustainable. Change to water management policy has been necessary, often with serious financial consequences for those who have invested capital on the assumption that water would be available. As recently as 1981, this Court was urged by the South Australian Government to refuse an application for a water licence on the Murray River but instead, the Court accepted the submission of the New South Wales Water Resources Commission that water was available and granted the licence: see Water Resources Commission of New South Wales & Ors v The State of South Australia & Ors (unreported, Land and Environment Court, 9 October 1981). That decision, like many others, has later proved to be at odds with the proper management of water resources within the state.

14.9 The practice of water resource planning in Australia began during the 1960s and developed during the 1970s and 1980s, possibly informed by the lessons of water resource planning in the United States of America.16 The first statutory system of water

allocation planning was the volumetric allocation scheme introduced in 1977 in New South Wales.17 [page 287] Dragun and Gleeson have described the effect of the original statutory provisions and also commented on the new management issues that arose from the introduction of the scheme provisions: [A]n area can be declared to be subject to a volumetric allocation scheme by an order of the Governor published in the Gazette. Following declaration, the commission is charged with the task of preparing a scheme to assess the total quantity of water available for apportionment to license holders, which then determines the maximum quantity that may be taken by the individual license holders. In making this determination, the commission may fix differing quantities of water per hectare according to the type of irrigation that is authorised, or fix maxima for quantities used for other purposes. The commission may subsequently make a proportional reduction in entitlements in periods of water shortage or increase allotments in times of surplus. Whilst the provisions of the act are not explicit on the areas of jurisdiction, the locations that have been selected for Volumetric Water Allocation Schemes are those where the water is controlled by being downstream from a reservoir. In practice, the commission sets the number of irrigated hectares per person and the volume of water per hectare for each type of authorised irrigated crop. Such practices lend some objectivity to allocation and on first impression appear to resolve issues of equity between potential water users. However, there is one potential source of tension which arises through the possibility for the granting of new licenses. Under s 20AB, new licenses may be granted to persons who are to draw from a source covered by volumetric allocation, with the amount to be apportioned from the total quantity of water available, in the same manner as the original users within the scheme. These grants will obviously reduce the amount of water available to each original user. Such reductions could be in absolute terms, or could be manipulated as a reduction in the reliability of supply. Thus, the scheme may satisfy the requirements of equity between authorised users, while leaving open the question of how many persons share what is available.18

14.10 As the foregoing explanation makes apparent, the schemes sought to define the limits of allocations but also preserved the right for a person to seek a new allocation from the water resource subject to the scheme, potentially at the expense of the security of

allocations to existing licensees. Perhaps the reason for this is revealed by the exegesis of Allen J in the 1990 case of Coulton v Holcombe (1990) 20 NSWLR 138 at 141–142, which concerned a challenge to the legal validity of a New South Wales volumetric allocation scheme. Water is a precious resource of the State. It is notorious that in this State there is, generally, not enough to go around and satisfy all reasonable expectations. It must be rationed. This must lead to conflicts of interest. One would think it likely that the rush of individuals to procure rights to riparian waters would not be permitted to be analogous to an old time gold rush — the early applicants being the winners and the latecomers being, in general, those who will be disappointed. One would expect that a long range view would be taken — accepting that the State will become progressively

[page 288] more developed, imposing greater strain upon the limited water resources. Future needs must be considered. On the other hand one would expect it to be likely that some priority in consideration be given to early applicants for water use. It might be thought that pioneers should not be denied a fair reward. Likewise it might be thought that rights which the State has granted to individuals in respect of water use ought not lightly be diminished or taken entirely away.

14.11 His Honour recognises the reluctance to set definite limits on water allocations, especially given the desire to share the resource with ‘latecomers’ and to consider future needs. There is a tension between different allocation systems. Under the common law riparian doctrine, ‘it didn’t matter when a particular riparian took title to his particular piece of property, each was always entitled to a pro-rata share of the water flow. This meant early takers had to reduce their consumption proportionately when subsequent people came onto the river.’ 19 However, most statutory schemes for the bureaucratic allocation of water entitlements have operated, implicitly if not explicitly, on the premise of ‘first-come, first-served’. 20 Although for much of the twentieth century those statutory schemes conferred broad statutory powers to vary allocations, there is no evidence that

these powers were regularly exercised in situations of scarcity to reduce allocations to an existing user to make available water for allocation to future uses and users — at least not on the instance of an application for a licence: More v Water and Rivers Commission [2006] WASAT 112 at [70]–[72]. Too frequently, unfortunately, limits on the grant of new entitlements have not been set until after there is a perception of over-allocation. 14.12 This reluctance to set definite limits on water allocations eventually gave way to the more pressing need to secure existing water entitlements and water for the environment, and to protect water quality. In 1991, a record toxic blue-green algae bloom in the Darling and Barwon Rivers of the MDB drew national attention to the problems of nutrient pollution of waterways and over-allocation of water to irrigation.21 State government attitudes began to change, yielding to more than 20 years of reform aimed at defining the limits on the human use of water resources.22 The transition in understanding is explained in a passage in the New South Wales State Water Management Outcomes Plan that was quoted by the New South Wales Court of Appeal in Nature Conservation Council v Minister Administering the Water Management Act 2000 [2005] NSWCA 9 at [29]; 137 LGERA 320 at 334–335. [page 289] In the past there was a reluctance to set limits on extraction because there was a belief that: the environmental damage resulting from increased extraction was the inevitable and acceptable cost for economic development; future demand for water could be met from high flows with minimal environmental impact; an extraction limit would unacceptably impact on the economic return from continued water resource development; and an extraction limit would mean that future activation of undeveloped entitlement would be at a cost to the water supply reliability of active water users. There is, however, increasing acceptance of the need to place overall limits on

extraction, typically defined as long-term average annual extraction limits, in order to halt the environmental decline that is becoming evident in many water sources. High flows in an up-river management area, for example, will often translate to lower flows so that additional extraction will compromise the security of supply to downstream users. Clear specification of the limits to extraction are essential for the clarification of access rights, the effective operation of a water market, informed business planning and efficient investment decisions. Extraction limits protect the security of supply of existing licence holders by limiting the granting of new licences in a ‘fully allocated’ water source. In the absence of an extraction limit, over-use can arise or be exacerbated, causing conflict within a community, devaluing individual entitlements and encouraging inefficient investment. A recent ‘Review of the Operations of the Cap — Social and Economic Impacts’ by Marsden Jacobs and Associates 2000, observed that: ‘The prime benefit of the Cap is the guaranteeing of security on a valley-by-valley basis. In the absence of the Cap there would be substantial erosion of security of entitlements across the Basin. The Cap provides a better and more certain climate for investment and jobs growth.’ 23 In the absence of constraints to extraction there are generally few motivations for efficient water use and the marginal value of water will generally remain low.

14.13 This explanation of the need to limit water allocations introduces one of the central themes of the national water policy principles promoting statutory water management plans: the need to measure water resources and specify water access rights clearly to provide for the effective operation of a water market. This theme is explored further below at [14.35]–[14.39] in relation to planning as the foundation for the water property rights regime. It suffices to say here that, once limits are set on the ‘first in time’ allocation of water access entitlements, it is the market that provides for future needs unless the executive government amends the limits of sustainable yield for a [page 290] water resource and makes more water available for allocation to consumptive uses. The capacity of the executive government to do

that depends on the statutory provisions for water resources planning.

Development of statutory planning 14.14 Planning for water resource allocation in Australia generally lacked a sophisticated legislative basis until enactment of the legislative reforms that followed the 1994 Council of Australian Governments (‘CoAG’) Water Reform Framework Agreement.24 In summary, statutory provisions for water planning were introduced in the various jurisdictions (besides New South Wales, see above at [14.9]) as shown: Victoria: by the Water Act 1989 (Vic) in the provisions for grant of bulk entitlements for water authorities (Part 4, Div 1) and ground water supply protection area management plans (Part 3, Div 3) and, by amendment in 1995, in the provisions for management plans to be made for water resource management areas (Part 4, Div 3); Queensland: by the Water Act 2000 (Qld) in the provisions for water planning and resource operations plans (Chapter 2, Part 3 and Part 4, Div 2); South Australia: by the Water Resources Act 1997 (SA) in the provisions for water plans, including the state water plan, catchment water management plans, water allocation plans and local water management plans (Part 7); 25 Tasmania: by the Water Management Act 1999 (Tas) in the provisions for water management plans (Part 4); Western Australia: by amendment in 2001 to the Rights in Water and Irrigation Act 1914 (WA) (Part III, Div 3D), though a general function of planning for the use of water resources was conferred on the Water and Rivers Commission in 1995; 26 Australian Capital Territory: by the Water Resources Act 1998 (ACT) in the provisions for the environmental flow guidelines and the water resource management plan, although the latter was

deleted from the Water Resources Act 2007 (ACT) and replaced by available water determinations;27 and Northern Territory: by amendment to the Water Act 1992 (NT) in 2000, where a very brief provision was inserted to support the making of water allocation plans (s 22B). [page 291] 14.15 In addition to the state planning systems, the Commonwealth Government has become involved in water resources planning. Initially, that was through its involvement with the MDB Agreement 1992, as implemented by the Commonwealth and state complementary legislation,28 and the adoption of Schedule C (the Salinity and Drainage Strategy originally adopted in 1988) and Schedule F (the MDB ‘Cap’, which was formally adopted in 2000) to the Agreement. In 2007, the Commonwealth initiated a new stage in water resources planning with the enactment of the Water Act 2007, which established the statutory framework for the making of a ‘Basin Plan’ for the MDB and mandating Commonwealth approval for the water allocation limits in water resource plan areas across the whole of the Basin. 14.16 The details of the current statutory provisions as to planning process, content and legal effect are discussed in succeeding chapters of this Part. At this stage, some important points of historical development are noted in relation to the increased measurement and management of water access rights; namely: the variation in times of scarcity of the rights to take water according to a scheme of priorities afforded to different classes of access rights; the definition of different levels of reliability for the different classes of access rights, so defining the priorities to be afforded in times of scarcity; and

the development of flexibility mechanisms in the management of water access entitlements, permitting ‘carry-over’ and ‘borrowing’. In considering these points, our attention is focused on the use of plans for water allocation or ‘water sharing’,29 even though there have been in the past, and are now, statutory provisions for planning with respect to other matters (such as water use, the establishment of water supply works (including for irrigation districts), drainage works and flood control works). 14.17 At the time that New South Wales introduced volumetric allocation schemes with annual allocations to entitlement holders, it also introduced into legislation and administrative policy other techniques of better managing and defining the water allocations.30 For example, the 1977 amendments to the Water Act 1912 (NSW)31 also introduced executive powers to restrict or suspend rights to take water during periods of water shortage; that is, when the quantity of water available, or likely to be available, was insufficient to meet all requirements. This power was to be exercised according to a set of statutory priorities that directed restrictions first to the taking of water for irrigation, second to stock supply and other purposes (industrial?) and, third, to domestic purposes and urban water supply. The statutory provisions also permitted restrictions on the taking [page 292] of water for irrigation to distinguish between the use of water for different classes of crops or plantings, thus setting different levels of priority for different uses of irrigation water. However, a significant limitation of these powers, even as they evolved with later amendments to the Water Act 1912 (NSW), was that they designed as reactive powers that could vary a ‘basic water allocation’.32

14.18 The provisions for priority of allocations during water shortages, together with the provisions for allocating water to different purposes under volumetric allocation schemes,33 appear to have laid the foundation for the development of administrative policies that designated water entitlements as ‘high’ or ‘general’ security. Holders of high-security entitlements had a high reliability of receiving their maximum entitlement each year; for example, 95 of every 100 years. General security entitlements had a lower reliability of supply, and the holders of these entitlements would more frequently anticipate receiving only a proportion of their maximum entitlement from the water that was available to be shared among entitlement holders of that category. The policy allocated high-security licences to town water supply and to irrigators of perennial crops, such as orchards, because of the high adverse effect of the loss of such crops during a drought. Irrigators of annual crops and pastures were allocated general security entitlements because the inability to irrigate during a year of drought would not have such long-term adverse impacts.34 However, the volumetric allocations were such that many highsecurity licensees often did not need to use their full (that is, maximum) entitlement, which increased the amount of water available to general security licensees.35 14.19 A similar practice was adopted in Victoria. Provisions for normal allocations saw the irrigators’ ‘water rights’36 accorded high-security and annual ‘sales’ water allocations,37 regarded as general security water — allocated after ascertaining that there was reserved in storage sufficient water to meet the demands of water rights holders in the following year. However, the allocations of ‘sales’ water were often calculated on the assumption of a ‘significant under-usage of both water right and “sales” water by many irrigators’.38 In times of shortage, all water rights allocations would be reduced proportionately, though in circumstances of severe scarcity, allocations to perennial crops would be reduced less than allocations to annual crops.39

[page 293] 14.20 A further administrative practice instituted to provide flexibility in the management of water access entitlements was the permission to ‘carry-over’ or ‘borrow’ from an annual entitlement. A carry-over ‘allows water users to accumulate a part of their annual or announced allocation not used in any one year for use in following years’. On the other hand, an entitlement holder could ‘borrow a small percentage of their forthcoming year’s annual allocation to complete seasonal requirements’, which results in the following year’s allocation being reduced by the borrowed amount.40 14.21 Thus, there were various administrative practices that embellished the expectations founded on the statutory provisions for allocation and management of access entitlements. These embellishments were to have significant influence on later political decisions about the design of water allocation plans that now underlie the arrangements for managing scarcity and tradable water entitlements, especially in the conversion of the old form of water licences (with rights to take up to a maximum volume) to the new forms of water access entitlements that are defined by determinations made under a water plan.41

Defining sustainability 14.22 The most important reform in water resources planning has been the inception of the idea of an environmentally sustainable level of consumptive use of a water resource. This idea led not only to limiting of the grant of new access rights in a fully allocated resource, but also to reconceptualising water access rights as share entitlements that are subject to ongoing definition in accordance with the terms of a water plan. Much of this conceptual development has come from addressing the significant challenges of managing the interconnected system of water resources of the MDB, but the concept developed has been applied

broadly across the country. These MDB challenges have been met almost simultaneously at two levels: at the local or area management level, with the development of the concept of a ‘water access entitlement’ as a perpetual share of the ‘consumptive pool’ of a water resource as determined under the relevant water plan, and the actual volume (or ‘allocation’) to be taken in any period as determined from time to time under the water plan; and [page 294] at the regional or whole catchment level, with the determination of integrated water resource allocation limits that would apply to the whole of an interconnected system of water resources in the MDB.

Water access entitlements and local area management 14.23 First, let us consider the concept of a water access entitlement as defined by a water plan. The lack of proprietary character of the pre-reform water licences and the reform prescription of water access entitlements was introduced in chapter 12. The old form of licences specified the entitlement to take water initially in terms of purposes to which the water would be applied and subsequently in fixed maximum volumes, which could be varied by executive order. These licences were of limited term, but were renewable. Importantly, they were often not issued on the basis of a water plan, so there was no clear evaluation of the availability of the water resource and no environmental water allocations were made to limit the allocations under licences for consumptive use purposes. The 1994 CoAG Water Reform Framework Agreement provided,42 relevantly, for the implementation of comprehensive systems of water allocation incorporating:

the creation of property rights in water separate from land titles and clearly specifying the ownership, volume, reliability, transferability and, if appropriate, quality; and formal allocations or entitlements of water for the environment as a ‘legitimate useof water’. That Agreement did not explicitly mention water planning, but the early forms of water plans were already being used to define limits on water access rights and environmental water allocations. Further, the 1994 Agreement directed state governments, in allocating water to the environment, to have regard to the work undertaken by the Agriculture and Resource Management Council of Australia (‘ARMCANZ’) and the Australian and New Zealand Environment and Conservation Council (‘ANZECC’). 14.24 In 1995, ARMCANZ published Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, which states as the first of its seven principles: That all consumptive and non-consumptive water entitlements be allocated and managed in accordance with comprehensive planning systems and based on full basin-wide hydrologic assessment of the resource.

Among the key issues associated with the application of the principles is the statement that ‘rights [to the natural resource] will not be to any absolute volume but to a capped share of the resource as it becomes available in the variable climatic cycles’. [page 295] 14.25 The first legislative provision for water access rights as a share of the available natural resource was made in the Water Management Act 2000 (NSW) s 56. That Act also provided, in ss 20, 59 and 60, that the water sharing plan should establish rules for the making of ‘available water determinations’ and authorised the Minister to make such determinations from time to time in

accordance with any relevant plan. Other Australian water resources legislation at the time did not include such provisions,43 and it is not known to what extent other jurisdictions may have applied a practice of making available water determinations in administering their entitlement systems. 14.26 Legislating for the share concept was a fundamental reform. It changed the presumption that a water access right was an entitlement to a maximum volume that could be varied in times of scarcity by the exercise of extraordinary discretionary powers to a presumption that the legal entitlement was only to a share of the water that was available in the climatic circumstances of the time. This makes sustainable water management much easier to achieve politically. It also opened the way for converting water access entitlements to perpetual rights that are more easily tradable in a water market. It is unsurprising, therefore, that the NWI adopted the share concept as a central feature, providing that:44 a water access entitlement for consumptive use will be described as a perpetual share of the consumptive pool of a specified water resource, as determined by a water plan; and the allocation of water to a water access entitlement, being the volume of water that may be taken in a specified period, will be made consistently with a water plan. The NWI also affirmed another conceptual development for water access entitlements; namely, that they could be applied to environmental water purposes in addition to environmental water provided by rules:45 see chapter 16 at [16.20] ff. Environmental water held as access entitlements can be tradable, both for environmental watering purposes and to or from water access entitlements held for consumptive use.

Whole of catchment management

14.27 Next, let us consider the regional or whole of catchment level of management. Defining the limits of allocation across the MDB began with the ‘Cap’. It was initially adopted by the MurrayDarling Basin Ministerial Council (‘MDB Council’) as an interim cap in June 1995,46 confirmed as permanent in 1997, formally adopted as Schedule F to the MDB Agreement 1992 by the MDB Council in August 2000, and amended in [page 296] 2008 before being renamed Schedule E in the 2008 MDB Agreement: see chapter 7 at [7.16]. The Cap was originally defined in general terms for each of New South Wales and Victoria as the volume of water that would have been diverted from the Basin rivers under 1993–1994 levels of development — the so-called ‘baseline conditions’ — and for South Australia in mostly specified volumes of diversion.47 There was originally no defined Cap for Queensland and no participation by the Australian Capital Territory, but the 2008 amendment introduced ‘baseline conditions’ definitions for Queensland (the volume of diversions authorised by the first water resource plans) and the Australian Capital Territory (a specified volume and population growth allowance). 14.28 Schedule E imposes on the participating states48 the duty to ensure that diversions within the whole state and within each ‘designated river valley’ do not exceed diversions limits under the Cap definitions. The designated river valley caps are implemented by each state developing an analytical model that applies the baseline conditions to calculate both the long-term average annual diversion rate and the annual diversion targets for designated river valleys in their territories. The Murray-Darling Basin Authority (‘MDBA’), which replaced the Murray-Darling Basin Commission (‘MDBC’) in 2008, approves the states’ analytical models and

calculates the annual diversion targets for New South Wales and Victoria for the upper River Murray.49 The states then have a duty to monitor and report to the MDBA on the diversions, entitlements, announced allocations and trades within, to or from the river valleys in the territory of the state for the water year. The states must also monitor and report on the compliance with the modelled annual diversion targets for the ‘designated river valleys’. The MDBA then reports on the compliance with annual diversion targets by each state for each designated river valley and for the state as a whole. The MDBA maintains a cumulative record of compliance on the ‘Cap Register’. There are further auditing and accountability procedures, including reporting to the Ministerial Council, for states that are shown to be noncompliant. More detail on the operation of the Cap can be found in chapter 16 at [16.119] ff. 14.29 The adoption of the Cap aimed to curtail water resource development below the full level of legal entitlements that were already allocated: see Figure 14.2. However, it was not intended that the Cap should curtail irrigation or other land use development because there could be the re-allocation of water by efficiency gains and by water trading, and there could be an adjustment of the targets on account of the water-trades.50 In 2008, it was also agreed that there be a protocol to adjust the Cap targets for the recovery and use of water access entitlements for environmental purposes.51 The MDBC/MDBA reported on the implementation of the Cap (including compliance with diversion targets) [page 297]

Figure 14.2: Figure 1 from Review of the Operation of the Cap: Overview Report of the Murray-Darling Basin Commission, August 2000. each year until 2011–2012, when the audit showed that there was general compliance with state and designated river valley targets, including cumulative compliance for all states and valleys; just two valleys in New South Wales were non-compliant with the annual targets that year, although compliant with the cumulative cap register.52 Although not part of the Cap, ground water usage has been reported on since 2000 (when data collection commenced). For 2011–2012, it was reported that ground water usage increased from 2000 but declined in 2010–2011 and 2011–2012 after the

breaking of the millennium drought brought more surface water.53 It was estimated that levels of ground water usage were only about 8 per cent of surface water diversion, generally much lower than the levels of allocation and generally within sustainable yield. However, ground water data were regarded as incomplete, based often on estimates and probably not reflecting all usage.54 [page 298] 14.30 The MDBA’s Water Audit Monitoring Report 2011–12 was the last under the Cap. The adoption of the Basin Plan in November 2012 has introduced a new regime of ‘sustainable diversion limits’, as required by the Water Act 2007 (Cth). Why has that come about? In 2000, the MDBC concluded that the Cap had contributed to the MDB Ministerial Council’s aim of achieving the ecological sustainability of the Basin’s river systems, but that the then current level of the Cap did not represent a sustainable level of diversions for the Basin.55 While projects for saving and purchasing water for the environment have led to some modifications in the setting of the Cap,56 there are fundamental weaknesses in it for the purposes of achieving ecological sustainability for the Basin’s water resources. Some of these weaknesses were explained by the Independent Audit Group (‘IAG’) in its Review of the Cap Implementation 2005/06.57 [The Cap] generally applied to diversions from storages and rivers for consumptive use. In response to market forces, operation rules and climate changes, growers and irrigation scheme operators have recognised the scarcity value of water. In addition there have been significant impacts on inflow into waterways from plantations, increases in the number and size of farm dams, interception of overland flows, bushfires, return flows from irrigation and increased use of groundwater. It is the view of the IAG that the issues of integrated water cycle management need to be addressed at the Basin scale. The Cap only addresses one aspect and in itself does not address the many other strategic issues associated with environmentally sustainable outcomes for the Murray-Darling Basin.

14.31 A key objective in the enactment of the Water Act 2007

(Cth) was to achieve integrated environmentally sustainable outcomes through water planning at the Basin scale. The Act establishes the MDBA as a Commonwealth body charged with preparing, for the Commonwealth Minister’s approval, a ‘Basin Plan’ that ‘will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area’ (italics added).58 The process for making the Basin Plan and its content are discussed in more detail in chapters 15 and 16.59 The discussion here aims just to introduce the statutory duty of planning for environmental sustainability. 14.32 The Water Act 2007 (Cth) provides the foundation for the integrated management of all the MDB’s water resources. It defines ‘water resource’ comprehensively to mean surface water or ground water, which terms are themselves defined to include overland flow, water in a watercourse, lake, wetland or aquifer, and all aspects of the water resource [page 299] that contribute to its environmental values.60 The Act also defines ‘Basin water resources’ to mean all water resources within, or beneath, the MDB, though it does not include the ground water of the Great Artesian Basin, and other water resources may be excluded by regulation.61 The Basin Plan mandatory content sets the limits within which the state water resources planning will operate. It defines the ‘water resource plan areas’, which must, as far as possible, align with the areas used under state water management law (‘management areas’). The Basin Plan must stipulate the requirements with which a water resource plan for a management area must comply.62 Generally, the participating states will prepare the water resource plans for the management areas and submit

them to the Commonwealth for accreditation.63 If the states’ water resource plans are consistent with the Basin Plan, the Minister must accredit them.64 However, if the Minister decides not to accredit a state water resource plan, the Minister may ask the MDB Authority to prepare a water resource plan for that management area and submit it for adoption.65 14.33 The Basin Plan limits on the taking of water from the Basin as a whole and from the management areas are to be expressed as ‘long-term average sustainable diversion limits’66 and ‘must reflect an environmentally sustainable level of take’, a term that is defined.67 The state water resource plans must incorporate and apply ‘the long-term annual diversion limit’ for the water resources of the management areas, which is a limit composed of the long-term average sustainable diversion limit plus a temporary diversion provision.68 The temporary diversion provisions must reduce to zero within an initial period of five years or an extended period,69 so a temporary diversion provision is the transitional diversion limit that the Commonwealth and the states determine as the pathway to meeting the ‘long-term average sustainable diversion limits’. By amendment in 2012,70 the Water Act 2007 (Cth) also permits the Basin Plan to provide for the power of the Authority to propose adjustments to the long-term average sustainable diversion limit of particular water resource plan areas, and cumulatively to the whole of the Basin water resources, by up to 5 per cent. However, a long-term average sustainable diversion limit produced as a consequence of such an adjustment still ‘must reflect an environmentally sustainable level of take’.71 Thus, at least in the MDB, the Commonwealth has mandated [page 300] that the water allocation plans for the Basin and its management areas must set limits on the amount of water that may be taken

from the Basin’s water resources, both as a whole and from all of its management areas. These limits must, in due course, ‘reflect an environmentally sustainable level of take’. 14.34 The Basin Plan was adopted by the Commonwealth Minister for Water in November 2012.72 Fulfilling the environmental sustainability duty in the making of the Basin Plan was politically challenging and led to important amendments of the Water Act mechanisms and, since adoption, to the Basin Plan itself. As Anita Foerster explains, the determination of the environmentally sustainable level of take under the Basin Plan has three steps.73 The first step is the setting of baseline ‘sustainable diversion limits’ (‘SDLs’) that are due to come into effect on 1 July 2019: Basin Plan Chapter 6, cl 6.04. Second, the Basin Plan provides the SDL adjustment mechanism to change the SDLs up or down by up to 5 per cent by the implementation of publicly funded projects that produce water savings that use less water to achieve environmental or consumptive use purposes, thus releasing that water to the adjustment: Basin Plan Chapter 7.74 As the level of entitlement reductions proposed by these first two steps did not satisfy South Australia, the Water Act 2007 (Cth) was amended to create a third step: the ‘Water for the Environment Special Account’, with annual appropriations of funds from 2014 to 2024 in order to pay for water saving projects that would increase the volumes of water to be allocated to environmental outcomes, especially in South Australia.75 Foerster’s analysis suggests:76 that the limits in the plan reflect a balancing of environmental with social and economic considerations, which is at odds with the clear direction in the Water Act to set SDLs to reflect an environmentally sustainable level of take. Yet this may be a difficult legal argument to make, particularly given the discretion accorded to the Murray-Darling Basin Authority in preparation of the plan. It is also difficult to divorce an analysis of the plan from its highly contentious political context. … [The author concludes] with a pragmatic acknowledgement that the Basin Plan, despite its significant flaws, represents a significant improvement on the path towards achieving a more environmentally sustainable level of trade-off in the MDB. [Emphasis in original.]

[page 301]

Foundation for water property rights regime 14.35 The development of a legal framework for water resources planning has been one of the main reforms of the legislative implementation of national water policy since 1994. It has come about because of the perception that planning would provide the certainty required for water access entitlements to be converted to tradable property rights, while at the same time providing government with the flexibility to manage a public resource of varying availability and huge importance to public interests.77 Nevertheless, the policy proposition that water allocation plans should have a binding legal force took some time to evolve. 14.36 The 1994 CoAG Water Reform Framework Agreement78 heralded, in para 4, the transition to ‘water property rights’ through the states’ agreement that they would implement comprehensive systems of water allocations. While the 1994 CoAG water reform propositions do not expressly say that the states must do water ‘planning’, practically speaking, the reforms could only be implemented by some form of water allocation planning. 14.37 In 1995, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water79 expressly required planning as the foundation for the regime of water entitlements. As noted at [14.24], Principle 1 stated: That all consumptive and non-consumptive water entitlements be allocated and managed in accordance with comprehensive planning systems and based on full basin wide hydrologic assessment of the resource.

The narrative to this principle goes on to say: 80 Planning systems would define the extent of the property rights of all entitlement holders to access, use and trade shares of the natural resource, and the extent to which natural resources are reserved for environmental and community benefit in

line with principles set out for the provision of water for the environment81 … In doing this, jurisdictions would establish the environmental constraints within which any market for water entitlements might operate. [Emphasis added.]

[page 302] Principle 7 of the Framework document contemplated the ‘legislative arrangements to support property rights regimes’, including the ‘initialisation and conversion of existing entitlements’, but it did not expressly state that water allocation plans should have any particular statutory force. 14.38 In 1996, the National Principles for the Provision of Water for Ecosystems82 addressed the legal force of environmental water allocations in Principle 3, saying that ‘[e]nvironmental water provisions should be legally recognised’. The narrative to this principle explained: Recognition should encompass provisions enabling the allocation of water to the environment and/or provisions enabling constraints to be placed on other uses so as to achieve protection of ecological values.

14.39 The strongest statements of the legal effect of water allocation plans came in the 2004 NWI. It states, variously: 23 Full implementation of this Agreement will result in a nationallycompatible, market, regulatory and planning based system of managing surface and groundwater resources … by achieving the following: … (ii) transparent, statutory-based water planning; (iii) statutory provision for environmental and other public benefit outcomes …83 … 25 The Parties agree that, once initiated, their water access entitlements and planning frameworks will: (i) enhance the security and commercial certainty of water access entitlements by clearly specifying the statutory nature of those entitlements; (ii) provide a statutory basis for environmental and other public benefits in

surface and groundwater systems to protect water sources and their dependent ecosystems;84 … 37 Broadly, water planning by states and territories will provide for: (i) secure ecological outcomes by describing the environmental and other public benefit outcomes for water systems and defining the appropriate water management arrangements to achieve those outcomes; and (ii) resource security outcomes by determining the shares in the consumptive pool and the rules to allocate water during the life of the plan.85

[page 303] The cumulative effect of these NWI propositions is that water allocation plans are to establish a secure basis for environmental water allocations and consumptive use water entitlements, and that these plans are to have a binding legal effect on the management of water resources by both executive government and any persons with interests in either form of allocation. This legal certainty is seen as essential for the operation of the market in water entitlements. The legal effect of water allocation plans in Australia is discussed in chapter 17.

The need for legislative support for planning 14.40 There are also various reasons of administrative and constitutional law that explain the need for water allocation plans to have legal force in order to give security to private and public interests in water resources. In part, these reasons stem from the functions that plans may perform, including: (i) to give legitimacy to regulatory decisions made by governmental officers, including on appeal to a merits review tribunal;

(ii) to confer or change legal rights and obligations respecting the taking and use water (including the rules for trade in entitlements); (iii) to create guidelines for, and constraints on, other governmental agencies in the exercise of their powers in ways that may impact on water resources; and (iv) to authorise the levying and expenditure of money. Each of these plan functions requires some elaboration. 14.41 The first plan function — plans giving legitimacy to regulatory decisions — is important for the efficiency and certainty of administrative decision making. While it is perfectly acceptable for an administrative agency to adopt a policy to guide its decision making, a non-statutory policy cannot have a binding or automatic effect on that decision making. A decision maker must give full consideration to the individual merits of any application under the terms of the relevant legislation: Re Drake No 2 (1979) 2 ALD 634 at 640–641 per Brennan J, President of the Administrative Appeals Tribunal (as he then was). For example, it would not be open to a decision maker to refuse automatically an application for a water access entitlement because granting the application would breach a limit set by a non-statutory policy on the amount of allocations to protect the sustainable yield or an environmental water allocation. The decision maker, and an appellate tribunal on appeal, would be bound to consider the application fully on its merits: see, for example, More v Water and Rivers Commission [2006] WASAT 112. An appellate tribunal may ordinarily apply a non-statutory policy in reviewing a decision, unless the policy is unlawful (for example, it is inconsistent with the statute) or unless applying it would produce an unjust decision in the circumstances of the case. However, a tribunal would still have to consider fully the arguments on the merits of the application and whether the policy ought to be applied. This will be true even if there is a statutory water plan that indicates

sustainable limits of allocation which are not given a binding legal effect by the statute. In Environment Protection Authority v Rashleigh [2005] ACTCA 42 at [35] and [36] the Australian Capital Territory Court of Appeal considered the [page 304] effect of the statutory water plan allocation limit on the tribunal determining a licence appeal in the absence of a statutory direction that the plan was binding on the decision maker. The court held that the appeal tribunal was bound to consider whether the plan’s allocation limit was the definite sustainable limit and whether any further abstraction sought under the licence application would damage the environment. In contrast, if a decision maker is bound by statute to act in accordance with the terms of a plan, it may be a relatively simple administrative task to establish whether an application will be contrary to the allocation limits set by the plan and refuse the application.86 14.42 The second and third plan functions raise questions about the potential legal effects of a statutory plan, which may vary according to the terms of the supporting legislation. It is possible for a plan, or the component parts of a plan, to have a variety of legal effects ranging from: (a) creating relevant considerations to be taken into account by the government agency responsible for managing water resources; (b) imposing administrative duties and rules of conduct to be followed by the government agency responsible for managing water resources or a private person making use of the water resources, and creating relevant considerations to be taken into account by another government agency operating under other legislation;

(c) imposing administrative duties and rules of conduct binding on all government agencies in the exercise of their powers, either under the water resources legislation or other natural resources legislation, and on a private person making use of the water resources; (d) imposing rules of conduct (including administrative duties for government agencies) that have general legislative force and are binding on all persons, governmental or private, in relation to any activity being conducted. A plan intended to have any of these legal effects should, as far as practicable, be justiciable in a court of law.87 Depending on the statutory language used, it is likely that a court would treat all of these types of legal effects as creating obligations for the decision maker. A court may adopt a standard of substantial compliance with the terms of a plan for effects (b) and (c): District Council of Kingscote v Kangaroo Island Eco Action Group (1996) 92 LGERA 117,88 or it may require that an action or decision ‘be consistent with’ the terms of the plan, if that is what the statute requires: Minister for the Environment and Conservation v Simes (2007) 153 LGERA 225.89 It may be anticipated that a court would [page 305] treat the provisions of a plan given legal effect (d) in the same way as it interprets the legal effect of a statute or regulation. 14.43 Different parts of a plan may have different legal effects according to the various management needs under the plan. This could be achieved by compiling a single document with different parts having different legal effects; for example, certain parts may be advisory and certain parts prescriptive: Minister for the Environment and Conservation v Simes (2007) 153 LGERA 225 at [46]. Alternatively, there may be adopted different instruments

with varied legal effects; for example, a ‘plan’, so-called, having legal effect (a) or (b) above may contain general information and certain aspects of pertinent administrative policy, whereas rules of conduct having legal effects (c) or (d) could be in regulations. The model generally being adopted in Australia is more the former, though water resources plans in different jurisdictions do have differing levels of legally binding effect. 14.44 The legal effect to be given to the provisions of a plan will determine who should be responsible for approving the plan or its relevant parts. Persons or bodies who may exercise that power of approval could be either the agency responsible for managing water resources, the Minister responsible for water resources or the Governor. In some cases, it may be desirable to make some or all of the provisions of a plan subject to parliamentary disallowance. If it is only the responsible agency (for example, the department or statutory body) that approves the provisions of a plan, it could be expected that those provisions would have no more than effect (a) above. If the responsible Minister were to approve the provisions of a plan, it could be expected that they could have effect (b) above; that is, create duties binding on the responsible agency and water users taking under the terms of the plan. However, the plan would probably not bind a government agency for which another Minister is responsible or citizens generally. If the Governor (effectively, the Cabinet) were to approve the plan, it would enjoy a ‘whole of government’ approval and could create binding duties on all government agencies and on water users operating under its terms; that is, effect (c) above. If it were desired to give the terms of a plan the general legislative effect of (d) above (legally binding on all persons, governmental and private), then the plan should be approved by the Governor and be tabled in parliament and subject to parliamentary disallowance. 14.45 The fourth plan function — the collection and expenditure of public funds — is subject to the constitutional requirement that legislative authorisation is needed for both

raising and spending public money.90 Thus, if a plan is to contain provisions that purport to authorise the collection of levies from water entitlement holders, [page 306] there must be clear provision in the legislation authorising the making of the plan’s financial provisions to provide for such fees or levies, and authorising the expenditure of the public moneys raised. The courts will require clear and unambiguous statutory language to authorise the imposition of levies and charges: Dowling v Commissioner of Water Resources (1991) 74 LGRA 420 at 426–431; [1993] 1 Qd R 70. It would also be desirable that the particular provisions for levies and expenditure of moneys should be subject to parliamentary disallowance as the means of gaining parliamentary endorsement of the specific financial provisions. For example, the Natural Resources Management Act 2004 (SA) requires that a levy proposal in a water allocation plan approved by the Minister be referred to the Natural Resources Committee of Parliament and, if the Committee objects to the proposal, that the plan be laid before the House of Assembly and the proposal subject to the disallowance of that House.91 14.46 Finally, the legislative enactment of the requirements of process and content of water allocation plans will give greater credibility to the plans and better ensure the public accountability of the governmental agencies responsible for managing water resources.92

National water policy principles on planning 14.47 It was explained at [14.33] ff that the NWI requires that water allocation plans are to establish a secure basis for allocations of water to environmental outcomes and consumptive use

entitlements, and that these plans are to have a binding legal effect on the management of water resources by executive government and by any persons with interests in either form of allocation. There are numerous other pertinent policy principles expressed in the NWI that impact on a consideration of the legal framework for water allocation planning.93 These principles will be referred to in the context of the legal issues being discussed in this Part. For the moment, it is sufficient to note the NWI ‘outcomes’ expressed in relation to the planning framework and to note the NWI definition of ‘water plan’. 14.48 In addition to the first two outcomes noted above in relation to the statutory force to be given to water allocation plans, the outcomes expressed in para 25 of the NWI are that the regimes for water access entitlements and the planning frameworks will, once initiated: [page 307] (iii)

be characterised by planning processes in which there is adequate opportunity for productive, environmental and other public benefit considerations to be identified and considered in an open and transparent way;

(iv)

provide for adaptive management of surface and ground water systems in order to meet productive, environmental and other public benefit outcomes; implement firm pathways and open processes for returning previously over-allocated and/or overdrawn surface and ground water systems to environmentally-sustainable levels of extraction;

(v)

(vi) (vii)

clearly assign the risks arising from future changes to the consumptive pool; …

(viii) reflect regional differences in the variability of water supply and the state of knowledge underpinning regional allocation decisions; (ix) recognise indigenous needs in relation to water access and management; (x)

identify and acknowledge surface and ground water systems of high conservation value, and manage these systems to protect and enhance those values; and

(xi)

protect the integrity of water access entitlements from unregulated growth in interception through land-use change. [Italics in original.]

It should be remembered that the goal of achieving environmentally sustainable levels of extraction in the MDB is now governed by the Water Act 2007 (Cth).94 However, the NWI principles are still pertinent to assessing the non-MDB implementation of the NWI environmental sustainability objective. If this proves ineffective, as it has so far in Western Australia,95 then serious consideration should be given to extending Commonwealth oversight of water allocation planning to achieve environmental sustainability. 14.49 The NWI defines a ‘water plan’ as: statutory plans for surface and/or ground water systems, consistent with the Regional Natural Resource Management Plans, developed in consultation with all relevant stakeholders on the basis of best scientific and socio-economic assessment, to provide secure ecological outcomes and resource security for users. [Italics in original.]96

Although the definition does not explicitly identify the purpose of a ‘water plan’ as water allocation, the prevalent concern of the NWI is with this aspect of water resources management, and not with other issues such as water quality, water use, flood controls or drainage.97 The NWI possibly anticipates that these other integral issues of land and [page 308] water management may be addressed in the ‘Regional Natural Resource Management Plans’, which the NWI defines as: plans that cover specific regions like those developed under the Natural Heritage Trust and the National Action Plan for Salinity and Water Quality.98

14.50 Our focus here is, similarly, on water allocation planning.

1.

A copy of the NWI is available on the archived website of the National Water Commission (‘NWC’): .

2. 3.

NWI para 36. K Stoeckel and H Abrahams, ‘Water Reform in Australia: The National Water Initiative and the role of the National Water Commission’ in K Hussey and S Dovers (eds), Managing Water for Australia, CSIRO Publishing, Clayton, 2007, p 1.

4.

J M Powell, Watering the Garden State: Water, Land and Community in Victoria 1834– 1988, Allen & Unwin, Crows Nest, 1989, pp 222–255; C Guest, Sharing the Water: One Hundred Years of River Murray Politics, Australian Government, Murray-Darling Basin Authority, 2016, pp 85–105. D Farrier, The Environmental Law Handbook, 2nd edn, Redfern Legal Centre Publishing, Sydney 1993, Chapter 13 (subsequent editions do not contain the historical analysis); A Gardner, ‘Planning for Integrated Natural Resources Management in Western Australia’ (1996) 26 UWA Law Review 443.

5.

6. 7.

C Chartres and J Williams, ‘Can Australia Overcome its Water Scarcity Problems?’ (2006) 1 Journal of Developments in Sustainable Agriculture 17 at 19. A Dragun and V Gleeson, ‘From Water Law to Transferability in New South Wales’ (1989) 29 Natural Resources Journal 645 at 651–652.

8. 9.

Ibid at 654. Ibid at 655–656.

10. 11.

The case is discussed further in chapter 20 at [20.23]. P L Tan, ‘Conflict over Water Resources in Queensland: All Eyes on the Lower Balonne’ (2000) 17 Environmental and Planning Law Journal 545; P L Tan, ‘Irrigators Come First: Conversion of Existing Allocations to Bulk Entitlements in the Goulburn and Murray Catchments, Victoria’ (2001) 18(2) Environmental and Planning Law Journal 154; P L Tan, ‘An Historical Introduction to Water Reform in NSW — 1975 to 1994’ (2002) 19 Environmental and Planning Law Journal 445.

12. 13.

For example, see the account of Tan, 2001, p 172. The South Australian Government endeavoured to object to Water Act 1912 (NSW) licence applications on the grounds that the removal of water upstream on the Murray River was causing water supply and salinity problems downstream in South Australia: see D Farrier, The Environmental Law Handbook, 2nd edn, Redfern Legal Centre Publishing, Sydney, 1993, p 340, citing Water Resources Commission of NSW v South Australia, unreported, Land and Environment Court of NSW, 9 October 1981.

14.

Victorian Government, Department of Water Resources, Security for Major Water Allocations, Water Resource Management Report Series, Report no 8, 1987, Chapter 6. The first environmental flow allocation was made for the Thomson Dam, final formal approval of which was given in 1986: see especially pp 55 and 73. C Guest, Sharing the Water: One Hundred Years of River Murray Politics, Australian Government, Murray-Darling Basin Authority, 2016, Part 4: ‘Reaching the natural limits of the river, 1973 to 1990’.

15.

16.

For example, A Wiener, The Role of Water in Development: An Analysis of Principles of

17.

18. 19. 20.

21.

22.

23. 24.

Comprehensive Planning, McGraw-Hill, New York, 1971. An account of the state law of water resource planning is given in C J Meyers and D Tarlock, Water Resource Management, 2nd edn, Foundation Press, Mineola, NY, 1980, pp 301–382. Water Act 1912 (NSW) Part 2, Division 4B, inserted by Water (Amendment) Act 1977 (NSW). Many sections in the Division were later amended. The effect of Division 4B is discussed by Tan, 2002, p 448. Dragun and Gleeson, 1989, pp 656–657. R A Epstein, ‘The Historical Variation in Water Rights’ in J Bennett (ed), The Evolution of Markets for Water, Edward Elgar, Cheltenham, 2005, pp 28–29. J Freebairn, ‘Principles and Issues for Effective Australian Water Markets’ in J Bennett (ed), The Evolution of Markets for Water, Edward Elgar, Cheltenham, 2005, p 8. Australian Parliament, Senate Hansard, Senator Foreman presenting the report of the Environment, Recreation and the Arts Committee on water resources and toxic algae, 16 December 1993, p 4866 ff. C Guest, Sharing the Water: One Hundred Years of River Murray Politics, Australian Government, Murray-Darling Basin Authority, 2016, Part 5: ‘Tackling the natural limits of the river, 1990 to 2006’. The ‘Cap’ being referred to is the Murray-Darling Basin Cap, which is discussed at [14.26] ff and in chapter 16 at [16.119]. See, for example, H Ventriss, ‘Legislative Requirements for an Effective Regional Water Resources Planning and Management Framework’ in R Bartlett, A Gardner and B Humphries, Water Resources Law and Management in Western Australia, The Centre for Commercial and Resources Law, The University of Western Australia, Perth, 1996, pp 120–128; A Gardner, ‘Planning for Integrated Natural Resources Management in WA’ in R Bartlett, A Gardner and S Mascher, Water Law in Western Australia: Comparative Studies and Options for Reform, The Centre for Commercial and Resources Law, The University of Western Australia, Perth, 1997, p 225.

25. 26.

The Natural Resources Management Act 2004 (SA) has replaced the 1997 statute. Water and Rivers Commission Act 1995 (WA) s 10(2).

27.

Water Resources Act 1998 (ACT) ss 5–10 and Part 5. The Water Resources Act 2007 (ACT) makes no statutory reference to a water resource management plan. Instead, it has instituted a regime of declaring water management areas and the amounts of water available from those areas, together with ministerial guidelines on the amounts of water that are reasonable for particular uses: ss 17 and 18. Murray-Darling Basin Act 1992 (Cth), giving effect to the Agreement which is set out in Sch 1 to the Act. The participating states have their matching legislation. The 1992 Agreement and its implementing legislation are discussed in chapter 7 at [7.6] ff.

28.

29. 30. 31.

This term is taken from the Water Management Act 2000 (NSW) Chapter 2, Part 3, Division 2, titled ‘Water sharing’. Tan, 2002, pp 449–450. Water (Amendment) Act 1977 (NSW), inserting s 22B into the Water Act 1912 (NSW).

32.

Water Act 1912 (NSW) s 20XC.

33. 34.

Water Act 1912 (NSW) s 22X. Personal communication from an officer of the New South Wales Department of Land and Water Conservation, October 2003. A contemporary explanation of the water allocation process is available on the website of the NSW Office of Water: and follow the links to ‘NSW water availability hub’ and ‘How water is allocated’.

35.

See the explanation of some of this history by Pain J in Murrumbidgee Horticulture Council v Minister for Land and Water [2003] NSWLEC 213 at [41]. Water rights were allocated on the basis of the ownership of land in an irrigation district: Water Act 1989 (Vic) ss 222(1)(b) and 230.

36. 37. 38.

A water authority may ‘sell’ water under the Water Act 1989 (Vic) s 222(1). Tan, 2001, p 160.

39.

Victorian Government, Department of Water Resources, Security for Major Water Allocations, Water Resource Management Report Series, Report no 8, 1987, pp 20– 24. A contemporary account of seasonal water determinations for irrigators is given on the website of the Resource Manager Northern Victoria: and follow the links to ‘Seasonal determinations’ and ‘How seasonal determinations work’. The contemporary northern Victorian terminology is ‘high reliability’ and ‘low reliability’. New South Wales Government, ‘Policy Advice No 8, Groundwater Quantity Management’, Principle 12, available at Department of Primary Industries, Office of Water website: and search ‘Policy title’. It appears that there is limited contemporary provision for borrowing against surface water entitlements: New South Wales Government, Department of Primary Industries, Water, ‘How water is shared in the regulated NSW Murray Valley’, October 2015.

40.

41.

42.

43.

See the discussion in chapter 16 at [16.90] of over-allocation and of the conversion of the statutory water licences to tradable water access entitlements on the basis of legal entitlement and not historical use, which permitted sleeper and dozer licences to be activated by trade. This exacerbated problems of over-allocation in the MDB. CoAG meeting, February 1994, Communiqué Attachment A, Water Reform Framework Agreement, para 4(a) and (b). Attachment A is available at the website of the National Competition Council relating to National Competition Policy: , ‘The Compendium of National Competition Policy Agreements, 2nd edition, 1998’, p 103.

44.

The Water Act 1989 (Vic) s 43 included from its enactment provision for Water Corporation (Authority) bulk entitlements to be defined by reference to a volume of water or a level of flow, or by reference to a share of flow or storage. However, licence conditions under s 56(1) could only specify the entitlement to take water by reference to the maximum amount of water that could be taken in particular periods or circumstances. NWI paras 28 and 29.

45. 46.

NWI para 35. MDB Council, Setting the Cap: Report of the Independent Audit Group, November 1996,

at the website of the Murray-Darling Basin Authority: . 47.

48.

See Schedule E to the Murray-Darling Basin Agreement 2008, cl 2, definition of ‘baseline conditions’. Most elements of the Cap for South Australia are defined in volumetric terms. The Murray-Darling Basin Agreement 2008 is Sch 1 to the Water Act 2007 (Cth). The Australian Capital Territory is defined as a participating state: Schedule E cl 2(2).

49. 50.

MDBA, Water Audit Monitoring Report 2011–12, August 2016, section 2.3, pp 15–16. Murray-Darling Basin Agreement 2008, Schedule E, cl 10 and Schedule D, Appendix 3.

51.

MDBA, Water Audit Monitoring Report 2011–12, August 2016, section 11, p 70. See also Murray-Darling Basin Agreement 2008, Schedule E, cl 10(2)(b). MDBA, Water Audit Monitoring Report 2011–12, August 2016, section 3.5: ‘Cap compliance’.

52. 53. 54.

Ibid, section 14.3 and Figure 8. Ibid, section 14.2. CSIRO, Water Availability in the Murray-Darling Basin: A Report from the CSIRO to the Australian Government, October 2008, reports that ground water usage is 16 per cent of the total water usage in the MDB: at [1.22].

55. 56.

MDB Council, Review of the Operation of the Cap, August 2000, pp 13–14. MDB Council, Report of the Independent Audit Group, Review of Cap Implementation 2005/06, p 7, affirmed in the Water Audit Monitoring Report 2011–12, August 2016, section 11.

57.

MDB Council, Report of the Independent Audit Group, Review of Cap Implementation 2005/06, p 2. Water Act 2007 (Cth) s 19.

58. 59. 60. 61.

See chapter 15 at [15.92] ff for the process of making the Basin Plan and chapter 16 at [16.125] ff for the content of the Basin Plan. Water Act 2007 (Cth) s 4, definitions of ‘water resource’, ‘ground water’ and ‘surface water’.

62.

Water Act 2007 (Cth) s 4, definition of ‘Basin water resources’. The capacity to exclude water resources from the Basin Plan and water resource plans is discussed in chapter 15 at [15.97] in relation to the area and water resources subject to the Basin Plan and water resource plans. Water Act 2007 (Cth) s 22(1), item 11, and 22(3).

63. 64.

Water Act 2007 (Cth) s 53 ff. Water Act 2007 (Cth) s 63.

65. 66.

Water Act 2007 (Cth) ss 68–69. Water Act 2007 (Cth) s 22(1), item 6.

67. 68.

Water Act 2007 (Cth) ss 4 and 23. Water Act 2007 (Cth) ss 22(1), item 7, and 24.

69.

Water Act 2007 (Cth) s 24(5)–(7).

70.

Water Act 2007 (Cth) ss 23A and 23B inserted by Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Act 2012 (Cth).

71. 72.

Water Act 2007 (Cth) s 23A(3)(b). Water Act 2007 (Cth), Basin Plan 2012, Federal Register of Legislation, Legislative Instrument, F2012L02240; made 22 November 2012, registered 23 November 2012, tabled in the House of Representatives and the Senate 26 November 2012. The Basin Plan survived three motions to disallow it.

73.

A Foerster, ‘The Murray-Darling Basin Plan 2012: An Environmentally Sustainable Level of Trade-off’ (2013) 16(1) Australasian Journal of Natural Resources Law and Policy 41 at 47. This feature of the Basin Plan was authorised by the insertion of Water Act 2007 (Cth) ss 23A and 23B by the Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Act 2012 (Cth). The Water Legislation Amendment (Sustainable Diversion Limit Adjustment) Act 2016 (Cth) amended the Basin Plan to authorise the MDBA to propose adjustments to surface water SDLs to take into account water-saving projects that will come into operation by 30 June 2024.

74.

75. 76.

77.

78.

79.

80. 81.

82.

Water Act 2007 (Cth) Part 2AA, inserted by Water Amendment (Water for the Environment Special Account) Act 2013 (Cth). A Foerster, ‘The Murray-Darling Basin Plan 2012: An Environmentally Sustainable Level of Trade-off’, (2013) 16(1) Australasian Journal of Natural Resources Law and Policy 41. As Tan points out, the reference to ‘property rights’ in this context is to private property rights: P L Tan, ‘A Property Framework for Water Markets: The Role of Law’ in J Bennett (ed), The Evolution of Markets for Water, Edward Elgar, Cheltenham, 2005, p 66. As to the perennial discussion of the attributes of property, it is generally accepted that to be categorised as ‘property’, a right or interest must, among other things, be assignable and have some degree of permanence or stability: see Tan, above, pp 66–67. See also the discussion in chapter 12 at [12.4] ff. CoAG meeting, February 1994, Communiqué Attachment A, Water Resource Policy, available at the website of the National Competition Council relating to National Competition Policy: . See the ‘The Compendium of National Competition Policy Agreements, 2nd edition, 1998’. Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995. Ibid, p 5. The ‘principles set out for the provision of water for the environment’ refers to the National Principles for the Provision of Water for Ecosystems, published by the Sustainable Land and Water Resources Management Committee of ARMCANZ and ANZECC, Occasional Paper no 3, July 1996. The National Principles for the Provision of Water for Ecosystems, published by the Sustainable Land and Water Resources Management Committee of ARMCANZ and ANZECC, Occasional Paper no 3, July 1996, p 8.

83. 84.

Listing the objectives of the NWI. (Italics in original.) Expounding the ‘outcomes’ to be achieved by the water access entitlements and planning frameworks. (Italics in original.)

85. 86.

Italics in original. Such a case was Elandes Nominees Pty Ltd v Minister for Water Resources [2002] SAERDC 130, especially at [23].

87.

‘The term ‘justiciability’ refers to the suitability for, or amenability to, judicial review of a particular administrative decision or class of decisions’: C Finn, ‘The Concept of “Justiciability” in Administrative Law’ in M Groves and H P Lee (eds), Australian Administrative Law, Cambridge University Press, Cambridge, 2007, Chapter 9, p 143. Full Court of the Supreme Court of South Australia. See also Bridgetown-Greenbushes Friends of the Forest Inc and Anor v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380, especially at 428 per Templeman J.

88.

89.

90.

In this case, the Supreme Court of South Australia held that the discretionary power of the Minister to grant a water licence had to be exercised to refuse the grant of a licence, because other provisions of the Natural Resources Management Act 2004 (SA) imposed an obligation on the Minister to refuse to grant a water licence if it was not possible to endorse a water allocation on the licence consistently with the water allocation plan. The constitutional principles are that the executive government must be specifically authorised by legislation to collect taxes and other levies (Commonwealth v Colonial Combing Spinning and Weaving C Ltd (1922) 31 CLR 421 at 433–434) and that no money can be taken out of the consolidated revenue fund without the authority of parliament: Brown v West (1990) 169 CLR 195 at 205. Each of the states’ constitutions contains a provision expressing this latter proposition.

91. 92.

Natural Resources Management Act 2004 (SA) s 80(8)–(16). For a judicial consideration of the role of plans in governmental accountability, see the New South Wales decision of Seaton v Mosman Municipal Council (1996) 93 LGERA 1, especially at 12–13.

93.

NWI paras 35 (Environmental and Other Public Benefit Outcomes), 36–40 and Schedule E (Water Planning), 41–45 (Addressing Currently Over-allocated and/or Overused Systems), 46–51 (Assigning Risks for Changes in Allocation), 52–54 (Indigenous Access) and 55–56 (Interception). See the discussion at [14.32]–[14.33].

94. 95.

96. 97.

M Bennett and A Gardner, ‘Groundwater Regulation in a Drying Climate: Lessons from South West Australia’ (2015) 33(4) Journal of Energy & Natural Resources Law 293; J Jensen and A Gardner, ‘Legal Duties for Environmental Water Provisions in Western Australia’ (2017) 42(1) UWA Law Review 206. NWI Schedule B(i): Glossary of Terms. See NWI para 7, which acknowledges that there are other natural resource management initiatives with a significant water focus (the Natural Heritage Trust, the National Action Plan for Salinity and Water Quality, and the National Water Quality Management Strategy). However, to the extent that there is any

98.

inconsistency with those other programs, the NWI ‘should take precedence’. NWI Schedule B(i): Glossary of Terms.

[page 309]

15 THE WATER RESOURCES PLANNING SYSTEM Introduction 15.1 All the states have legislated for a system of water resources planning; that is, a set of powers and procedures for making water resources plans. The Australian Capital Territory and the Northern Territory make only limited legislative provision for water resources planning: the Australian Capital Territory in the form of environmental flow guidelines and determinations of water available in a management area, and the Northern Territory by modest provision for water resources investigation and water allocation plans. The Water Act 2007 (Cth) has also created a water resources planning system to set over-arching limits for the operation of the state and territory planning systems in the Murray-Darling Basin (‘MDB’) and a national water information regime. In due course, the Commonwealth’s Basin planning system will replace the ‘Cap’ regime under Schedule E of the MDB Agreement 2008. 15.2 The states and territories have various different forms of water resource plans that are to be prepared by the Minister and/or a responsible agency. New South Wales and South Australia are the only states to have

made statutory provision for state-level plans, although Queensland, Victoria and the Northern Territory have provided, to varying extents, for water resources investigation and assessment on a state/territory-wide basis. The New South Wales Act (Water Management Act 2000) also provides for the Minister to make water management plans relating to six associated issues: water sharing (allocation), water use, drainage management, floodplain management, controlled and aquifer interference activities, and environmental protection. The Minister may also make ‘Minister’s plans’, which are expedited plans. The Queensland Act (Water Act 2000), after significant recent amendments,1 provides for two main levels of planning. The Minister prepares water plans to define broad principles and outcomes of water allocation and water use plans. The Chief Executive [page 310] makes water management protocols and water entitlement notices for the detailed implementation of water plans and water trading rules. In 2006, the Queensland Act was amended to introduce a Chapter 2A for water supply and demand management, especially in South East Queensland (‘SEQ’). Chapter 2A applies the concept of ‘water security planning’ to provide advice on regional water security options and the management of the SEQ regional water grid. In a unique Queensland arrangement, a revised Chapter 32 provides for ‘underground water management’ by defining the ‘underground water obligations’ of mining and petroleum resource tenure holders exercising their ‘underground water rights’ pursuant to the mining and petroleum legislation. The South Australian Act (Natural Resources Management Act 2004) provides for regional Natural Resource Management

(‘NRM’) boards to prepare water allocation plans for ministerial approval, such plans being part of regional NRM plans. The Tasmanian Act (Water Management Act 1999) provides for the Minister to make water management plans, which are principally related to water allocation. The Victorian Act (Water Act 1989) provides for various instruments that may have a planning effect, but in different and specific contexts. For example, there are extensive provisions for ‘assessment of and accounting for water’, which include the Minister’s powers to declare a ‘permissible consumptive volume’ for an area or a water system and to make a ‘Sustainable Water Strategy’ for a specified region,3 and the Minister’s duty to maintain a program of long-term water resources assessments every 15 years. The Act also provides for the Governor to grant ‘bulk entitlements’ to confer volumetric entitlements on water authorities4 in respect of water in a waterway, ground water or water (other than recycled water) in the works of an authority.5 The terms of a bulk entitlement may perform certain functions that, in other jurisdictions, may be performed by an instrument called a plan. However, as bulk entitlements are seen primarily as entitlements of water authorities, they will be discussed in Part 5 in relation to the administration of water rights. The Minister may also grant ‘environmental entitlements’ to the Victorian Environmental Water Holder. The principal water allocation planning instrument is the ‘management plan’ made for water supply protection areas. The Western Australian Act (Rights in Water and Irrigation Act 1914) provides for the Minister to make regional, sub-regional and local management plans for the purposes of the Act.6 The Act provides for the content, the process for making, review and amendment, and the terms of these plans. Although the statutory provisions for plans commenced in 2001, no statutory plan has ever been made. The current Act [page 311]

is now due for wholesale reform, and we have not discussed its provisions in this chapter. The Australian Capital Territory Act (Water Resources Act 2007) provides for the Environmental Protection Authority to prepare environmental flow guidelines and maintain a program of water resources assessment, and for the Minister to declare water management areas and their available water.7 The Northern Territory Act (as in force at 1 July 2016) s 22B provides the barest authority for the Minister to declare a water allocation plan with a maximum term of 10 years and a minimal prescription of its content and effect. The limited terms of the provision do not require more discussion here.

Overview 15.3 This chapter focuses on the statutory planning provisions that relate to water resources assessment and the allocation of water to environmental and consumptive purposes. While there are other forms of water resources planning (for example, planning for water use, and for drainage, flood and waterway management), the elements of these planning processes are not considered. Further, while we recognise that land use laws can also regulate aspects of water resources management (for example, a planning permit may be required for a land use involving the use of water resources)8 and that water allocation planning needs to integrate with broader natural resources management, these interactions of the water allocation planning system are not explored here. Indeed, a water allocation regime is generally now acknowledged to be the specific authoritative regime for decisions on the allocation of water to environmental or consumptive use purposes.9 The chapter has three main parts. In the first part, we focus on state-level plans, water resources assessment and water information. It is notable that the 2004

Intergovernmental Agreement on a National Water Initiative (‘NWI’)10 expresses no requirements for the making of [page 312] state water plans other than the NWI implementation plans.11 Rather, the NWI requirements for statutory ‘water plans’ relate to regions or water management areas. As most planning for water resources allocation in Australia is done at the management area level, that is the main focus of chapter 15. However, New South Wales and South Australia have legislated for state plans, and Queensland, Victoria and the Northern Territory have legislated for water resources investigation and assessment at the state level, so we briefly review these provisions. We also note the Commonwealth’s new national water information regime. In the second part, we focus on the state and territory systems for regional or area management plans, explaining the following elements of water resources allocation planning: the time to make a plan; the water resources subject to a plan; the persons responsible for and process of making a plan; the persons responsible for and process of approving a plan; and the duty of and procedures for monitoring and reviewing the implementation of a plan, and of amending a plan. In the third part, we explain the procedural elements of the Commonwealth’s MDB planning system, focusing on the making of the Basin Plan and accrediting/approving water resource plans. There is now a huge volume of legislation, government policy and explanatory literature about water allocation planning.12 Our discussion is directed at the core statutory provisions and key relevant cases, and makes only selective use of the broader

literature. The litigation that has arisen has been judicial review of planning process, mainly agitated by private water user interests.13

State plans, water resources assessment and water information State plans: New South Wales and South Australia 15.4 The State Water Management Outcomes Plan of New South Wales (‘SWMOP’) was made by order of the Governor published in the Gazette in 2002, but has now ceased [page 313] to have legal effect.14 It is discussed at [4.38] ff as a technique for giving more precise expression to the objectives of water resource management. The purpose was to set the over-arching policy context for water resources management and to promote the water management principles of the Water Management Act 2000 (NSW). The SWMOP was also to be consistent with any government policy prescribed by regulation and with any government obligations under any intergovernmental agreement or any international agreement. It was the duty of all persons administering the New South Wales Act to give effect to the SWMOP (s 9(2)), and a management plan made by the Minister was to be consistent with the SWMOP (s 16(1)). The legal effect was, however, less prescriptive than normal subordinate legislation, both because of the stated intention of one provision of the SWMOP and the generality of the language of many of its provisions referring to ‘targets’ rather than ‘rules’. The SWMOP was briefly considered in Arnold v Minister Administering the Water Management Act 2000 (NSW) [2013] NSWLEC 73 and by the Court of Appeal: [2014] NSWCA 386. The

case was a challenge to the validity of the Water Sharing Plan for the Lower Murray Groundwater Source adopted in 2006. The SWMOP Target 1(e) required that long-term average annual abstractions of ground water be reduced to an ‘ecologically sustainable level … as determined by detailed assessment of each groundwater source and consultation with the relevant management committee’. The applicants argued that the use of a flawed numerical model to determine the sustainable yield breached this duty. While the court accepted that there was a duty to give effect to the SWMOP, it held that this duty (and other provisions of the Act) did not mandate any particular method of analysis of sustainable yield and did not mandate the use of a sound numerical model: [2013] NSWLEC 73 at [181]; [2014] NSWCA 386 at [83]–[86]. The court also held that the fact that it was mandatory for the SWMOP to have regard to intergovernmental agreements existing when the SWMOP was made did not mean that the Minister was prohibited from having regard to a later inter-governmental agreement when making a later water sharing plan: [2013] NSWLEC 73 at [190]. The applicants also argued unsuccessfully that the Minister failed to have regard to a mandatory relevant consideration by not having a sound numerical model, and acted unreasonably in having regard to a numerical model that was admittedly not sound. Leave to appeal to the High Court was refused.15 15.5 South Australia is the other jurisdiction that has provided a statutory foundation for a state plan for water resources, which is called the State Natural Resources Management Plan (‘State NRM Plan’).16 It is the Minister’s duty to prepare and maintain [page 314] the State NRM Plan for achieving the objects of the Natural

Resources Management Act 2004 (SA). The essential content of the State NRM Plan is prescribed to include: an assessment of the condition of the state’s natural resources, identification of risks of damage or degradation of those resources, and provision for ongoing monitoring and evaluation of the condition of the natural resources; identification of goals, priorities and strategies for management of natural resources; and promotion of the integrated management of natural resources. The Minister must review the State NRM Plan every five years, but may amend it at any time. There are general requirements of consultation on the initial proposal for the State NRM Plan and any proposed amendment to it, and exemptions from the consultation requirements for urgent or menial amendments made at the direction, or with the concurrence, of the Minister. The State NRM Plan, or an amendment to it, has ‘no force or effect until adopted by the Minister’, but constitutes only ‘an expression of policy and does not in itself affect rights or liabilities’ (s 74(12)). Nevertheless, a regional NRM Plan ‘should be consistent with the State NRM Plan’ (s 75(4)) and a water allocation plan, which forms part of a regional NRM Plan, should be consistent with other parts of a regional NRM Plan (s 76(5)). However, a failure by the Minister to comply with a relevant statutory requirement does not affect the validity of the State NRM Plan or any other instrument under the Act (s 74(13)). 15.6 The Australian Capital Territory abandoned the territory water resource management plan of its 1998 Water Resources Act in the enactment of its 2007 Water Resources Act. To the extent that there is territory-wide guidance now on water resources decision making, it appears to come from the ‘Territory plan’, which is made under the Planning and Development Act 2007 (ACT).17

Water resources assessment 15.7 Water resources assessment is the process of investigating water resources, collating and evaluating the information, and publishing the results for use by water resource agencies, businesses and members of the public. To a large extent, this process may be undertaken to prepare, review or amend a state or management area plan. However, there is value in having an ongoing program of water resources assessment, with the continuing publication of up-to-date information, as well as specific periodic evaluations. The best example of such an assessment process is found in Victoria. 15.8 The Victorian Water Act 1989 provides that the Minister must ensure that there is a continuous program of assessment of the state’s water resources (s 22(1)(a)), reported on every five years (s 22(2A)), which includes the collection, collation, analysis and publication of information about the availability of water, the environmental water [page 315] reserve, disposal of wastewater, and use and re-use of water resources, including instream uses (s 22(2)). The Act also confers significant powers on the Minister to collect information in pursuit of monitoring and assessing the state of water resources on both public and private land (s 23). The 2005 amendments, especially the new provisions for ‘Long-term Water Resources Assessments’,18 have also created a public process for evaluating and responding to the results of water resources monitoring every 15 years. The long-term assessment is required to identify whether or not there has been a decline in the long-term availability of surface or ground water and whether the decline has fallen disproportionately on the allocation of water to the environmental water reserve or for consumptive purposes. The

long-term assessment must also identify whether there has been any deterioration in waterway health for reasons related to flow. The evaluation process includes the opportunity for public comment and a review by the Environment Protection Authority (‘EPA’) (ss 22M and 22N). The Minister may approve the EPA report and must, if approval is given, publish the EPA review and the Minister’s assessment (s 22O). A major omission from the statutory framework for making this assessment is the duty to prescribe performance indicators against which to measure water resource management. Even the original provisions for Sustainable Water Strategies did not mandate the definition of performance indicators (Part 3, Div 1B), though this was remedied by the 2010 insertion of a requirement to ‘include an implementation plan, setting out timelines or targets for implementing key actions identified by the strategy’ (s 22C(1)(e)). It is also possible that performance indicators could be defined in a Sustainable Water Strategy, which must ‘identify ways to improve and set priorities for improving’ the reliability of supply and quality of water, and the maintenance and increase of the environmental water reserve (ss 22B–22C). The Act provides for the process of making a Strategy, including with extensive public consultation, and the requirement that a Strategy take into account the results of any long-term water resources assessment. The Minister must review a Strategy after 10 years or sooner if the findings of a long-term assessment impact upon it (s 22I). The Victorian Government proposes to improve the integration of the procedures for the Sustainable Water Strategies and the long-term water resource assessments, and to further link them with the Murray-Darling Basin planning process.19 Together, these water resource assessment and planning processes form a sophisticated state-wide water planning process. 15.9 The Queensland Water Act 2000 blandly says that ‘[t]he State plans for the sustainable management of Queensland’s water … by preparing and implementing water plans; and … water use

plans’ (s 37(1). The interpretation of this provision would be guided by the Act’s s 2 purposes, including ‘the sustainable management of Queensland’s [page 316] water resources …’, but the Minister’s former duty to plan has been deleted.20 The Act retains the former duties on the Chief Executive to provide information for planning purposes by maintaining and publishing records of the volume and quality of water, the water requirements of natural ecosystems and impacts on them of water management, and of future water requirements in Queensland (s 38). The Chief Executive also has powers to require a person holding a water authorisation or entitlement to provide information about water management, use and works (ss 35 and 36). The Chief Executive has similar broad powers to require information of a service provider during water supply emergencies (s 25Y) or of an applicant for a water licence (s 111). 15.10 The Australian Capital Territory Water Resources Act 2007 imposes a duty on the EPA to maintain, ‘as far as possible’, a continuous program for the assessment of water resources.21 The Act gives the EPA powers to undertake water investigation and monitoring activities, including on private land. There is no reciprocal statutory obligation on the EPA to publish the results of the assessment program. However, the EPA may publish on the entitlement register information collected by or given to it in the performance of its functions in relation to water resources in the Territory (s 66(4)). Also, the ‘ACT and region catchment management coordination group’, which was established in 2015 to advise the Minister on water catchment management, may share and publicly report information.22 15.11 One aspect of water resources assessment that has become an issue is the confidentiality and commercial value of

information supplied by private persons to government and how government may use that information.23 Government may wish to collate and publish the information for the purposes of water resources assessment and planning, but some of it may have commercial value. The South Australian Natural Resources Management Act 2004 addresses these issues by providing that regulations may prescribe the kind of information to be compiled by the government and the requirements on private persons to supply information in their possession. The Act goes on to provide that the Minister must seek the consent of the person who provided the information to make it publicly available and must make it publicly available if consent is given, but otherwise must not disclose that information to another person without the consent of the person who provided it (s 10(1)(e), (2) and (3)). The Queensland Water Act 2000 addresses this issue by providing a facility for a ‘client’ of the regulatory entity (Minister, Chief Executive or the regulator) to advise that [page 317] information supplied is ‘commercially sensitive’.24 If the regulatory entity believes that the disclosure of the information would be likely to damage the client’s commercial activities and not be in the public interest, then the entity must ensure that the information is not, without the client’s consent, disclosed except to the entity’s employees in the course of their duties. In the absence of specific provisions, it might be expected that general ‘freedom of information’ legislation would operate in these circumstances.25

The national water information regime 15.12 The Water Act 2007 (Cth) Part 7 provides for a national

water information regime. The Act defines ‘water information’ carefully (s 125):26 ‘water information’ means: (a) any raw data, or any value added information product, that relates to: (i) the availability, distribution, quantity, quality, use, trading or cost of water; or (ii) water access rights, water delivery rights or irrigation rights; or (b) any metadata relating to data of a kind referred to in paragraph (a); and includes contextual information relating to water (such as land use information, geological information and ecological information).

This wide definition could potentially cover much of the information about water resources maintained by the states’ own information systems. Curiously, though, paragraph (a)(ii) of the definition does not include water use rights as distinct from water access rights; that is, it seems not to include the rights that may be defined by water use approvals. 15.13 The relevant functions for the administration of this national regime are conferred on the Bureau of Meteorology and the Director of the Bureau, and include (ss 120–122): collecting, managing, interpreting and disseminating Australia’s water information; reporting regularly on the status of Australia’s water resources and patterns of usage of those resources; forecasting future availability of Australia’s water resources; compiling and maintaining water accounts, including a set of accounts to be known as the ‘National Water Account’, which are to be published annually;27 [page 318] undertaking and commissioning investigations to understand Australia’s water resources; and

giving advice relating to water information. For the purposes of performing these functions, the Bureau and the Director have certain privileges, powers and duties (ss 126–127 and 129). Regulations may require a person to give the Bureau prescribed water resources information held by the person. Further, the Director may give a person a notice requiring that the Bureau be given certain water information. A person may refuse to provide the information for a reasonable excuse (for example, that it is covered by legal professional privilege), but that does not include that the information is commercially significant or confidential. Giving the information does not affect a person’s ownership of it. The Director must publish the National Water Account annually (as prescribed by regulation) and other water accounts at any time, and may update them at any time (ss 122–123). However, the Director must not publish particular water information if it would not be in the public interest to do so, nor publish information in a way that identifies a person’s water use unless that information is already publicly available. In this context, the meaning of ‘water use’ is not entirely clear, because it is uncertain whether it would cover the taking of water from a water resource under a water access right or simply the application of water after it has been taken from the resource. The Director may issue national water information standards to guide the administration of these accounts and the information system, and may insist on a person complying with those standards (ss 130–133). The Director must comply with any directions from the Minister and may also delegate to any SES employees or to state officers his or her functions or powers (ss 134–135).

State and territory systems water allocation planning

When to make a plan 15.14 When does a plan need to be made? The adoption of statutory water allocation plans to secure ecological outcomes for water systems and resource security outcomes for water entitlements was initially presented in national policy as a precondition to the conversion of water entitlements from their former status as statutory privileges to the new status of property rights. The 1995 National Framework for the Implementation of Property Rights in Water stated: property rights should not be implemented in a catchment until a comprehensive planning system is in place which fully describes the resource and establishes a framework of consumptive and environmental uses.28

[page 319] This principle appears to explain the process of transition of the New South Wales water management from the Water Act 1912 to the Water Management Act 2000; only those regions for which management plans have been made have come under the operation of the 2000 Act.29 Queensland also followed this approach in its procedures for transition to the NWI form of water access entitlement.30 South Australia adopted a process of making plans on the introduction of water access licensing. The Victorian practice is not clear from its legislation. Tasmania and Western Australia have permitted the introduction of tradable water licences without requiring a statutory plan to be made. 15.15 The NWI is less prescriptive about the need to make a plan. As noted in chapter 14 at [14.39], the NWI records that: The Parties agree that, once initiated, their water access entitlements and planning frameworks will: (i) enhance the security and commercial certainty of water access entitlements by clearly specifying the statutory nature of those entitlements; (ii) provide a statutory basis for environmental and other public benefits in surface and groundwater systems to protect water sources and their dependent

ecosystems; …31

The NWI links the establishment of water entitlements as property rights with the provision of legally secure allocations of water to environmental and other public benefit purposes, which requires the making of a water allocation plan. 15.16 Making a plan involves a commitment of considerable administrative resources. There should, therefore, be a requirement to make a plan only when the proper management of a water resource demands it. It is common for allocation plans not to be made until a water resource reaches a high level of allocation. As the states and territories are primarily responsible for funding the preparation of plans, it is not surprising that the NWI leaves these issues to be determined by them on the basis of ‘an assessment of the level of development of water systems, projected future consumptive demand and the risks of not having a detailed plan’.32 While the Water Management Act 2000 (NSW) (s 7(4)) imposed duties on the Minister to make plans for certain classes of water resources within a specified time period, it is not surprising that the water legislation of the other states and territories confer on the executive government discretionary powers to determine whether a plan should be made. With the exception [page 320] of New South Wales, it is not clear that any jurisdiction requires the making of an allocation plan as a precondition to the conversion of water entitlements to property rights status.

Discretionary powers to decide to make a plan 15.17 The most common provision (which prevails in New South Wales, Queensland and Tasmania) is that the Minister may

determine that a plan is to be prepared in respect of a water resource.33 In New South Wales, the plan is prepared for a proclaimed management area. This basic position in New South Wales is qualified by the Minister’s additional discretion to make a ‘Minister’s plan’ (discussed at [15.20]) and by the Minister’s duties to make management plans for certain classes of water resources within a specified time limit (discussed at [15.22] ff). 15.18 In South Australia, a regional NRM board must prepare a water allocation plan for each of the ‘prescribed water resources’ in its region.34 The Governor, on ministerial recommendation, is under an effective duty to establish NRM regions to cover all parts of the state and the Minister must establish a board for each NRM region.35 However, the power of the Governor to make a regulation prescribing a water resource (whether a watercourse, lake, well or surface water area) is a discretionary one exercised on the recommendation of the Minister; the Act constrains the Minister not to recommend the prescription of water resources ‘unless satisfied that the proposed regulation is necessary or desirable for the proper management of the water resource to which it will apply’.36 15.19 In Victoria, the Minister has discretion to declare a water supply protection area but, once that discretion is exercised, the Minister is bound to appoint a consultative committee to prepare a plan, and the committee must, within 18 months or an extended period, prepare a draft plan. If the committee fails in that task, the Minister may prepare the plan.37 Ultimately, the Minister has discretion to approve the plan but, if the plan is refused, the Minister must publish the reasons and then either reestablish the process, abolish the water supply protection area, or ‘take any other action that the Minister considers appropriate in the circumstances’.38 15.20 The Minister in New South Wales has an additional discretion to make a ‘Minister’s plan’ for any part of the state not

within a water management area, or for a management area or water source or part thereof for which there is no management plan.39 The Minister may also make a Minister’s plan as a supplement to an existing [page 321] management plan to deal with matters not dealt with by that existing management plan or to cover more than one management area or water source.40 However, what has proved significant is that it is for the Minister to decide whether to make a Minister’s plan or a normal management plan in respect of any matter.41 The procedures for making a Minister’s plan are more flexible: the Minister is not bound to establish a statutory management committee to prepare a draft management plan and may choose which management plan procedures to apply, and because a Minister’s plan need only ‘in general terms deal with any matters that a management plan is required to deal with’ (emphasis added).42 The Minister exercised this additional discretion to make all of the water sharing plans in the first round of plan making in 2004– 2008.43 In Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources (2005) 138 LGERA 11, the applicant association challenged the validity of the resultant Minister’s plan on the basis that the Minister had exercised the extraordinary power for an extraneous purpose: namely that the Minister did not wish to be put in a position where he might be pressed to give effect to recommendations of a management committee and he made plans, including the Plan, with the intent to avoid the statutory scheme of what was described as the ‘transparent and open’ processes [of the normal management plan provisions].44

It was further submitted that the provision for ministerial plans was only a ‘backup mechanism’, even though that had not been the Minister’s practice. The applicant concluded that the Minister

had established only one statutory committee in the whole state, and that this was the result of a deliberate policy to avoid the statutory procedures for making management plans and was inconsistent with the Act’s objects of recognising the role of the community and sharing responsibility for the use of water between government and water users.45 15.21 The Land and Environment Court, at first instance, and the New South Wales Court of Appeal rejected the submission. Spigelman CJ, speaking for the Court of Appeal, said that there was nothing in the legislative scheme to suggest that a [page 322] Minister’s plan was a secondary way of making a plan, which should be exercised only as a last resort. The Minister’s power to establish a statutory management committee to prepare a plan was discretionary. In any case, the applicant had not produced evidence to show any ministerial impropriety. Instead, the evidence showed that the Minister had established advisory committees under s 388 of the Water Management Act 2000 (NSW) and that those committees had been consulted ‘as desirable or necessary’. With respect, the court failed to advert to the then current statutory provisions that authorised the Minister to direct a management committee to prepare a management plan in accordance with certain terms of reference and that, if the management committee failed to do this, the Minister was authorised to do so instead pursuant to the same statutory procedures.46 One can only suspect that the court must have recognised the serious consequences of upholding the challenge; all the Minister’s plans would have been invalid and that would have been a serious obstacle to implementing the new statutory regime. In 2004, after the plan in question had been made, the Act

was amended to provide that if a management committee failed to prepare a draft management plan the Minister may make a Minister’s plan.

Duties to make plans 15.22 The 1998 Water Resources Act (ACT) provided that the EPA ‘must prepare a draft management plan for the water resources of the Territory’ and submit it for the Minister’s ultimate approval.47 The 2007 Water Resources Act (ACT) makes no provision for a water resource management plan, but it does reenact the requirements that the EPA prepare draft environmental flow guidelines, consult on them and submit them for the Minister’s approval.48 15.23 The most notable duties for making water allocation plans have been created by the Water Management Act 2000 (NSW). It created ‘duties’ to establish plans for all water sources. The Act stated parliament’s intention that, within one year of the Act coming into operation, certain ‘special’ water resources were to be identified and management plans containing environmental water allocations made in respect of them (s 7(4)).49 For water resources generally, environmental water allocations were ‘to be established for all of the water sources in the state as soon as practicable after the commencement of this section’ (s 8(3)).50 These ‘duties’ contained the following elements. Within 12 months of the date of assent to the Act, all water sources within the state were to be classified according to: [page 323] the extent to which they are at risk (s 7(3)(a));51 the extent to which they are subject to stress (s 7(3)(b));52 and the extent of their conservation value (s 7(3)(c)).53

Furthermore, within the same 12-month period, the Minister was to prepare a ‘water sharing management plan’ containing a ‘bulk access regime’ for each of the ‘special water resources’; that is, those ‘classified high risk, high stress or high conservation value’ (s 7(4)(b)). A bulk access regime is the part of a management plan that provides for the extraction of water under access licences in a management area having regard to the environmental water rules and requirements for water to satisfy basic landholder rights (s 20(1)(e)), and ‘must be consistent with the water management principles’ (s 20(2)(f)). In the case of special water resources, a bulk access regime was to be made by means of a ‘Minister’s plan’ (s 7(5)). The original 2000 provisions of the Act, especially s 8, set a statutory prescription for water that is committed to fundamental ecosystem health at all times in priority to consumptive uses. After litigation to enforce this duty, the provisions were amended in 2004 to require only a plan commitment to a level of environmental water that the Minister saw fit: see chapter 16 at [16.24]. 15.24 The New South Wales duty to make urgent environmental water allocations for ‘special water resources’ may be contrasted with the effect of the 2005 amendments to the Water Act 1989 (Vic), which establish an ‘environmental water reserve’54 to give secure statutory recognition to environmental water allocations. The essential objective of the environmental water reserve is that it be maintained ‘so as to preserve the environmental values and health of water ecosystems’ (s 4B). As we shall see in chapter 16,55 there are several associated provisions for the assessment of water resources and the creation of environmental water allocations in various ways that ultimately make the content of the environmental water reserve a matter of executive discretion rather than statutory duty. Despite the statutory objective of the reserve, the Act does not require that an environmental water allocation be determined and implemented in priority to the satisfaction of consumptive uses of water or at any particular time.

Area and water resources subject to a plan 15.25 Water allocation planning in Australia is predominantly undertaken at the regional or management area level. How are the management areas to be defined, and what water resources within the management area are to be subject to the plan? [page 324] The national water policy initially expounded an idealistic principle for the geographic scope of water plans, stating: That all consumptive and non-consumptive water entitlements be allocated and managed in accordance with comprehensive planning systems and based on full basin wide hydrologic assessment of the resource.56

The NWI is less idealistic and more specific about the integration of water resources planning. It leaves the area subject to a plan to be determined by the relevant state or territory,57 but prescribes pertinent guidelines for the preparation of water plans; namely, that the plan should:58 describe the water source or sources covered by the plan; assess the ‘level of connectivity between surface (including overland flow) and ground water systems’; consider the ‘impacts on water users and the environment that the plan may have downstream (including estuaries) or out of its area of coverage, within or across jurisdictions’; and consider water interception activities, such as farm dams and bores, capture of ‘overland flows’ and large-scale forestry. How has the law dealt with the definition of the water resources to be the subject of a plan? The answer to this question in respect of the last point will be further considered in relation to the content of a plan: see chapter 16 at [16.105]–[16.110]. 15.26

The description of the ‘water source’ was an issue in

Coulton v Holcombe (1990) 20 NSWLR 138, where it was argued that the volumetric allocation scheme prepared under the Water Act 1912 (NSW) was invalid because it was made in respect of two or more water sources, not ‘the water source’. Allen J discussed some of the difficulties of defining the water resource for which the water usage was to be regulated: Coulton v Holcombe (1990) 20 NSWLR 138 at 142–143. The most obvious geographical feature which is pertinent to water usage is the individual river. It is to be expected that generally any user of riparian water will draw it from one river. But the river, in its ordinary meaning, is an inadequate criterion for prescribing a suitable water source for the purposes of sensible water utilisation. Many of the rivers of this state are a great length. What is appropriate for one section of the river could be utterly inappropriate for some other section scores or hundreds of kilometers away. Further, what is relevant is likely to be a river system rather than an individual river. To take but one example, one can have a major river which flows

[page 325] for hundreds of kilometers having as one of its tributaries a river which is relatively quite short but which has its head waters in a nearby mountain range in consequence of which it has a relatively large water flow in some seasons. It would be absurd to treat the waters from the short fast flowing river tributary as being independent of the waters of the main river downstream from where the tributary joins the main river. It would be a scheme worthy of a lunatic to require each river which is a tributary to another river to be treated as an area independent of the main river itself so that the waters of each tributary could fully be shared out to adjoining landholders, thereby leaving no water to flow from the tributary into the main river.

His Honour noted that the statutory definition of ‘water source’ included a ‘section of a river’, and held that ‘in general terms a water source is so much of a continuous river system as you wish to call a water source’: 20 NSWLR 138 at 147. He also held that it was valid to make a single scheme for a totality of river sections comprising one continuous water source for the purposes of the Act: 20 NSWLR 138 at 147–149. 15.27

The current New South Wales Water Management Act

2000 gives the Minister an unfettered discretion to ‘constitute any land as a water management area’ and to specify the terms of reference by which a management committee may be directed to prepare a draft management plan (ss 11 and 15). In addition, the Act was amended in 2002 to provide that the ‘water sharing provisions of a management plan may apply to the whole or any part of a water management area, or to the whole or any part of one or more water sources within a water management area’ (s 19(2)).59 There can be risks in this compartmentalised approach if water-dependent ecosystems are excised from the area of a plan that allocates a large proportion of upstream flow to consumptive use purposes.60 It should be acknowledged, however, that the Minister’s plan provision as originally enacted provided for such a plan to be made ‘for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force’, or for the whole or part of a management area to deal with matters not dealt with by a plan already in force.61 It is arguable, therefore, that the New South Wales Act always impliedly permitted a management plan to be made for a part of a management area and for any part of the area’s water resource or resources. The policy principles ‘macro’ water sharing plans developed for the second generation of plans (post-2008) acknowledge the flexibility of defining a plan area as being geologically appropriate and geographically acceptable with a degree of hydraulic connection and administrative practicality, while also providing for defining water sources within the plan area.62 [page 326] 15.28 The Queensland Water Act 2000 likewise gives an unfettered ministerial discretion to determine the ‘part’ of the state to be covered by a plan (s 42(1)). Despite the comprehensive

definition of ‘water’ under the Act,63 ‘two plans may have effect for the same part of [the state] at the same time if each relates to a different type of water’; for example, surface and ground water (s 42(2)). Earlier provisions requiring the Minister to consider the need for integrated water resource management have been repealed. 15.29 The South Australian Natural Resources Management Act 2004 is the only one to provide some geographic criteria to guide the proclamation of the management areas; that is, the NRM regions. It provides that the Minister must, in formulating a recommendation to the Governor for the division of the state into NRM regions, ‘give attention to the nature and form of the natural environment and give particular attention to water catchment areas and biogeographical regions’, and take account of relevant economic, social, cultural and local government boundaries or areas (s 22(2)). A regional NRM board ‘must prepare a water allocation plan for each of the prescribed water resources in a region’ (s 76(1)). The Governor, on the Minister’s recommendation, may prescribe a ‘watercourse, lake or well’ or a ‘part of the State’ (s 125(1) and (2)). Thus, the Minister may recommend that some or all of the water resources in an NRM region be prescribed and become the subject of a water allocation plan. 15.30 The Tasmanian Water Management Act 1999, s 14(1), provides that a management plan may be prepared for a ‘watercourse, several joined watercourses or part of a watercourse’; or a lake; or one or more ground water resources, or for a combination of any of these resources if they are joined (naturally or artificially). The scope of the plan may also include ‘dispersed surface water that normally flows into or replenishes the water resource or water resources in the plan’. 15.31 The Victorian Water Act 1989 provides broad ministerial discretion to determine the area and water resources covered by

the management plans for the water supply protection areas. The Minister may ‘declare an area to be a water supply protection area’ for the protection of the ground or surface water resources of the area ‘or both’ (s 27(1) and (2)). Further, the Minister may prepare guidelines for the preparation of the draft management plan for the area (s 30), and the consultative committee appointed to prepare the draft plan must do so in accordance with any guidelines and taking into account any other draft or approved management plan that applies to the area or part of the area (ss 31 and 32). It is clearly contemplated that there may be separate plans prepared for ground and surface water resources, or a single plan for both types of resources in the area, but the geographical or physical extent of the water resources is not indicated in any way (s 32A(2)).64 From the provision for the potential content of a water supply protection area plan, it seems that a plan may relate to all water resources held under all entitlements, including surface run-off captured in dams (s 32A(3)). It may [page 327] be that these plans will not be used in relation to water resources regulated by reservoirs that are subject to bulk entitlements.65 15.32 In the Australian Capital Territory Water Resources Act 2007, the environmental flow guidelines to be approved under the Act for ‘working out the flow of water that is needed to maintain aquatic ecosystems’ (s 12) will apply to all water resources in the Australian Capital Territory. The Act defines ‘water’ to mean surface water and ground water (s 3 and Dictionary), and those terms are, in turn, defined broadly to mean all water on or flowing over land and water below the surface of the ground or a waterway, but they do not include sewerage or drainage water (ss 8 and 9). 15.33

In summary, all of the state Acts provide significant

discretion in the ministerial determination of the scope of a management plan, in both the area and the water resources to be covered. Only the South Australian Act provides any significant criteria for the proclamation of a management area (NRM region).

Making a plan 15.34 There are two main issues to consider here: who are the persons responsible for preparing a draft plan and what are the procedures to be followed in plan preparation — both under statute and at common law? 15.35 The persons responsible for preparing a plan depend on the administrative structure of water resources management in each jurisdiction, which is discussed in chapter 6. While the detail of that structure differs between jurisdictions, the common features are that each jurisdiction has a Minister with political and legal responsibilities for the management of water resources, and an agency or department of the state or territory government that assists the Minister in the performance of those responsibilities. All jurisdictions, except Queensland, also have legislative provision for the establishment of local or regional committees that perform mostly advisory functions, especially in respect of the preparation and review of water management plans. The statutory definition of their constitution is discussed in chapter 6. The only issue to be discussed here is the nature of the planning function that the legislation gives them. 15.36 In relation to the procedures for making a plan, the key questions relate to the procedures for giving notice of a draft plan and opportunities for public review and consultation with affected parties. For the most part, these procedures are defined in legislation. We will review the essential stages of those procedures and briefly consider how they implement the pertinent NWI principles; namely, that water planning processes include:66

[page 328] (i) consultation with stakeholders including those within or downstream of the plan area; (ii) the application of the best available scientific knowledge and, consistent with the level of knowledge and resource use, socio-economic analyses; (iii) adequate opportunity for consumptive use, environmental, cultural, and other public benefit issues to be identified and considered in an open and transparent way; (iv) reference to broader regional natural resource management planning processes; and (v) consideration of, and synchronisation with, crossjurisdictional water planning cycles. In addition, the NWI says that the parties will provide for Indigenous access to water resources, in accordance with relevant legislation, through ‘planning processes that ensure: (i) inclusion of Indigenous representation in water planning wherever possible’.67 Besides considering the statutory procedures for water allocation planning, we need to ask whether the common law rules of procedural fairness may affect the planning process.

Who prepares the draft plan? 15.37 There are two quite distinct models for conferring responsibility for the preparation of draft management plans. The first model, displayed in the legislation of New South Wales, South Australia and Victoria, confers on a management or consultative committee the function of preparing the draft management plan and undertaking consultation in relation to it.68 Each of these states has quite a detailed prescription of the membership of the relevant body. It is notable that, in New South Wales and Victoria,

the Minister may take over the process of preparing a plan if the management committee fails to prepare a draft plan in accordance with its terms of reference.69 The South Australian Act has no similar provision, but the statutory language requiring an NRM board to prepare a plan suggests that a board’s functions will be judicially enforceable. In New South Wales, the Minister can also avoid the statutory processes of plan making by exercising the power to make a ‘Minister’s plan’.70 The state-wide exercise of this power was, surprisingly, upheld in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [30]–[38]; (2005) 138 LGERA 11 at 23–25, where the New South Wales Court of Appeal rejected the argument that the exercise of the Minister’s power was for an extraneous purpose of avoiding the normal statutory consultation procedures. The court said that there was no [page 329] evidence to support the argument and that the power to make a Minister’s plan was a subordinate form of plan making to be exercised only as a matter of last resort. 15.38 The second model, displayed in the legislation of the Australian Capital Territory, Queensland and Tasmania, reposes the task of preparing the draft plan in the responsible state agency. In Queensland the function is reposed in the Minister,71 and in Tasmania it is reposed in the Secretary of the Department.72 In the Australian Capital Territory, it is the EPA that must prepare and consult on the environmental flow guidelines.73 In Queensland, recent amendments have repealed provisions for the formation of a community reference panel, leaving an unrestrained ministerial power to determine whether any public consultation is required (s 44): see chapter 6 at [6.18]. In Tasmania, the role of the management committee is that of a mere consultative body — a

‘water entity’ in the form of a water trust in Tasmania.74 In the Australian Capital Territory, there is the ACT and Region Catchment Management Coordination Group (Part 7A), formed in 2015. 15.39 Whichever model of plan preparation is applied, there is an important question about the implementation of the NWI principles: what is required by ‘the application of the best available scientific knowledge’? Does this entail new studies to gather new information in order to ascertain the ecological requirements of the particular water system in the preparation of the plan?75 Alternatively, is there a duty to do socioeconomic research to meet an arguable duty to consider such impacts under s 18(1) of the Water Management Act 2000 (NSW)? The NWC, in its 2005 assessment of water reform progress, found that New South Wales did not employ the best available science in preparing all the water sharing plans adopted under the Water Management Act 2000 (NSW).76 The ecological information was often too generic and not sufficiently detailed about the specific catchments to enable the planning committees to determine the flow requirements needed to maintain ecosystem health.77 While considerable effort was directed to generating information about the potential socio-economic impacts of the proposed water sharing plans, there was not the same endeavour in researching the effects of various options for environmental water allocations. Although environmental scientists recommended an increase in the [page 330] amount of water provided for the environment, the reduction of the long-term annual average volume of extractions was ‘arbitrarily limited to 10 per cent as a result of the environmental rules imposed by the regulated river water sharing plans’.78

On the other hand, there have been arguments that New South Wales water sharing plans were approved without adequate consideration of socio-economic impacts. In Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386 at [140]–[145], the applicants argued that the respondent Minister had not had due regard to socio-economic impacts of the proposed plan and not fulfilled the s 9(1) duty to take all reasonable steps to promote the water management principles as a whole, including (under s 5(2)(g)) to maximise socio-economic benefits. However, the Minister and the court rejected the argument that such duties required the Minister to undertake a formal farm-by-farm survey of the individual impacts of the plan proposals. The court found that the consultative committee and the Minister had considered a wide range of socio-economic impacts, including industry structural adjustment payments offered to alleviate the impacts of entitlement reductions: [143]– [146] and [162]. 15.40 The legal answer to the question whether research should be undertaken to apply the best available scientific knowledge involves interpreting the relevant legislation, including reviewing judicial interpretation of similar sorts of legislation. In New South Wales, at least, there is no clear statutory duty imposed on the person preparing the plan to undertake scientific research to ascertain the ecological requirements of the particular water system. In directing a management committee to prepare a draft management plan, the Minister may set the terms of reference for the preparation of the plan.79 The management committee is bound to prepare the plan accordingly and, if it fails to do so, the Minister may take over the process and prepare a Minister’s plan.80 Is there some common law proposition applied by the courts that may suggest a duty to research information relevant to making the plan? In the context of immigration law, the High Court has explained that a tribunal with a duty to review may be said to have failed to exercise its jurisdiction if it does not make an

‘obvious inquiry about a critical fact, the existence of which is easily ascertained’: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123.81 A majority of High Court justices there said that ‘[i]t is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law’: 83 ALJR 1123 at [24]. This general issue was considered in the context of forestry management in Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director, Department of Conservation and Land Management (1997) 94 LGERA 380. The plaintiff forest conservation groups argued that the statutory duty on the defendant to manage state forests in accordance with the regional management plan required that the defendant fulfil its plan commitment to consult with the community and to consider relevant factors under the plan by [page 331] undertaking adequate studies of the areas of forest proposed to be logged before approving the logging plans. In essence, it was argued that any decision to approve the logging plans should be based on adequate information. It was held that ‘the decision maker is not required to gather or assemble information which is not readily available’. Applying that proposition to the pleadings in the case, it was held that the plaintiffs had failed to establish, by their pleadings, that ‘the information relied on is readily accessible’: (1997) 94 LGERA 380 at 419–431 per Templeman J; Scott J agreeing. Indeed, the requirement, as pleaded, to undertake scientific studies to gather the information meant that it was not readily available. 15.41 The gathering and consideration of information are processes of general importance in all resources management and environmental regulation. The legal sufficiency of how those processes are conducted seems to have been considered most in

relation to environmental impact assessment, a special tool for managing the adverse impacts of resource use on the environment. There is much legal learning on the topic.82 The common test of the ‘adequacy’ of an environmental impact statement is that it must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible environmental consequences of the proposed development: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 31. Could this sort of proposition be applied to the scientific information to be assembled in the preparation of a water sharing plan that determines an environmental water allocation (‘EWA’), for example? Could such a test require the undertaking of new research if the existing information is not sufficiently specific to understand the likely environmental consequences? 15.42 The result in Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386 (see [15.39] above) suggests such a proposition will not be easily implied.83 The simplest solution to the issue may be to provide a statutory duty that the Minister, in setting the terms of reference for the preparation of a draft management plan, give directions as to what, if any, scientific questions need to be researched in the preparation of the plan. Such research information may be presented in a draft plan for public consultation and, subsequently, for ministerial approval, or it may provide the framework for scientific research and monitoring to be undertaken pursuant to an approved plan. At least, the draft plan that goes to public consultation should address the questions of scientific knowledge that arise in adopting and implementing the management plan.

Public notice and consultation on a draft plan 15.43 The details of the public notice and consultation procedures prescribed by each jurisdiction’s legislation vary greatly. The South Australian provisions are the most detailed and,

not surprisingly, the Australian Capital Territory provisions the least detailed. The details of each jurisdiction’s provisions are best gleaned from reading the [page 332] relevant legislation. It is sufficient here to note that those provisions reveal two basic models of consultation on the preparation of a draft plan. 15.44 The first model, employed by New South Wales, Queensland, South Australia and Tasmania, adopts a two-stage process of consultation. First, there is a notice, either to specified agencies and persons and/or the public generally, of the intention to prepare a draft plan and, with the exception of Tasmania, an invitation for those persons or any person to make a submission about that proposal.84 In Tasmania, the public notice may require landholders to notify the Secretary of the existence of a well on their land.85 In Queensland, this first stage of preliminary plan consultation is at the Minister’s discretion (Water Act 2000 (Qld) s 44). The second stage of consultation in these jurisdictions is the publication of the draft plan, again to specified agencies and persons and to the public generally, with an invitation to any person to make submissions.86 In New South Wales and South Australia, where a management committee or NRM board is preparing the draft plan, there is a requirement to obtain the Minister’s consent before publishing the draft plan.87 In New South Wales, if the draft plan contains environmental protection provisions, the Minister must consult the Minister for Urban Affairs and Planning before agreeing to its publication.88 The South Australian Act provides for the NRM board preparing the plan to hold public meetings.89 The Tasmanian Act requires the Secretary of the Department to forward the draft plan for review

by the Tasmanian Planning Commission, which may also hold public hearings.90 There are then duties to consider submissions on the draft plan in preparing the final plan to be submitted for governmental approval.91 In Queensland and South Australia there are requirements on the Minister and NRM board, respectively, to prepare a report on the results of the consultation.92 In Tasmania, the Tasmanian Planning Commission must report to the Minister on the draft plan and give public notice of its report.93 A final duty of consultation may involve the Minister consulting with the committee or board that has prepared the plan if the [page 333] Minister is minded to amend the plan, or returning the plan for further consideration or re-drafting.94 15.45 The second model, adopted by Victoria, employs a singlestage process of consultation on a draft plan. The duty of consultation applies only to the draft plan and requires the committee or agency preparing the plan to consider any submissions in revising the draft plan before submitting it for ministerial approval.95 The duty of consultation in Victoria is confined to ‘interested persons’; the duties of the committee are to make the plan available for comment by interested persons and to consider any comments made by interested persons. On the face of it, this is a narrower legal duty of consultation than any of the other jurisdictions. The New South Wales and Victorian Acts expressly provide that the validity of a plan is not affected by non-compliance with certain of the statutory procedures, the Victorian provision being much broader in scope than the New South Wales provision.96

15.46 The level of analysis provided here does not permit a close evaluation of the legislation against the process criteria of the NWI. However, the following brief comments are pertinent. None of the jurisdictions provides explicitly for consultation with Indigenous people, except that New South Wales and South Australia provide expressly for the appointment of representatives of Indigenous people on the management committees and NRM boards that are charged with preparing the draft plans.97 The South Australian Act is the most comprehensive in addressing the NWI planning process criteria.98 It provides a very thorough definition of the plan-making process and expressly requires a water allocation plan to be a part of a regional NRM plan. Further, a plan must take into account any adverse impacts that the taking and use of water may have on the needs of persons and ecosystems using water from another water resource; indeed, a plan for the second water resource may even include provisions relating to the taking and use of water from the first resource. However, it is notable that the Minister may dispense with part of the consultation process required by the Act if, in the Minister’s opinion, the scope of the plan is so limited that the consultation process serves no useful purpose.99 The New South Wales Act also expressly requires that the management committee must, in formulating a draft plan, have due regard to: ‘the socio-economic impacts of the proposals considered for inclusion in the draft plan’; [page 334] the provisions of any relevant local strategic plans under the Local Land Services Act 2013 (NSW) (which are the broader regional planning instruments); and ‘the effect within each water management area or water source to

which the plan applies of activities occurring, or likely to occur, outside each such area of water source’.100 Regrettably, the obverse proposition to the last consideration is not expressed — there is no requirement to consider the effect of activities within the management area on the water resources outside (that is, downstream) of the area. Further, as noted above at [15.20], most of the water sharing plans made to date in New South Wales have been made as Minister’s plans, and various aspects of the procedures described do not apply to the making of Minister’s plans because they are not prepared by statutory management committees under the 2000 Act.101 In contrast, the Queensland Act does not spell out the procedural requirements for consultation with affected parties. Rather, it requires the Minister to publish a notice of the proposed arrangements for public notice and consultation.102 Thus, the Act provides little legal guidance for the important consultation procedures, leaving them in the discretion of the Minister and, probably, not legally enforceable.

Common law procedural fairness 15.47 Can the common law rules of procedural fairness (natural justice) provide some procedural safeguards for the consultation of affected parties in the preparation of a draft plan? Historically, there was some judicial reticence to apply the rules of procedural fairness to executive decisions of a quasi-legislative or subordinate legislative character, such as making a plan, because those rules protect the interests of individuals, and instruments of a legislative character can affect many people and be made for broad policy reasons.103 However, that reticence was moderated in the Australian context in Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 432 per Mason and Wilson JJ; there are now numerous instances of challenges to the validity of planning decisions on the basis of arguments of procedural fairness. There have been two such challenges to water

management plans in the New South Wales Land and Environment Court; one in respect of the making of a plan was not pursued and a second in respect of a plan amendment was unsuccessful. Besides these two water planning cases, other case law suggests that there will only be a limited prospect of applying the common law principles of procedural fairness to water resources planning. Even if a court were to hold that a duty of procedural fairness does apply to a planning process, there will be the associated question of what is the appropriate content of that duty. [page 335] 15.48 In the 2003 case of Upper Namoi Water Users Association Inc v Minister for Natural Resources [2003] NSWLEC 175 the applicant’s allegations included that the Minister’s determination to make a Minister’s plan rather than apply the planning procedures of Parts 2 and 3 of Chapter 2 of the Water Management Act 2000 (NSW) involved a breach of procedural fairness, and that there was a legitimate expectation that the plan would be prepared by a management committee and be made as a management plan rather than a Minister’s plan. The Land and Environment Court’s decision went only to procedural issues and the substantive arguments on procedural fairness were unresolved. Bignold J refused the Minister’s request to hear a separate trial of the abstract questions of whether rules of procedural fairness applied to the statutory provisions governing management plans and Minister’s plans because: even the proper construction of the relevant provisions of the Water Management Act to determine whether the rules of procedural fairness have been ‘excluded by plain words of necessary intendment’ … cannot be undertaken without a proper understanding of (i) the content of the Water Sharing Plan and (ii) the nature of the rights or legitimate expectations held by the various Applicants in the present case.104

The case did not proceed to a decision on these substantive arguments, but his Honour’s insistence on construing the Act in the context of understanding the specific facts of the case resonate with the applicants’ arguments in the next challenge determined by the court. 15.49 In the 2008 case of Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165105 the applicants argued that the Minister owed them a duty of procedural fairness in making the 2006 Order that amended the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 (and associated regulations) because they, like a few other of the 176 licensees subject to the plan, were affected by special circumstances. The plan amendment was made in exercise of the Minister’s power under s 45(1)(a) of the Water Management Act 2000 (NSW) to amend a plan by order published in the Gazette if satisfied that ‘it is in the public interest to do so’ and was, in fact, an amendment to a ‘Minister’s plan’, two points to which we return later.106 The plan was to be the basis of the transition from bore licences under the Water Act 1912 (NSW) to aquifer access licences under the Water Management Act 2000 (NSW). As originally approved in 2003, the plan provided for an across-the-board proportional reduction of all licensees’ formal volumetric entitlements by 52 per cent. This plan was challenged unsuccessfully in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11. A principal argument was that the proportional reduction of all entitlements regardless of the [page 336] history of use and sustainable yield calculations was irrational. It

was rejected by the Court of Appeal, upholding the decision of the Land and Environment Court in 2004. In March 2004, about the same time that the court challenge to the 2003 plan was being heard, the New South Wales Government decided to change the policy underlying six New South Wales ground water plans, including the lower Murrumbidgee, from equal across-the-board cuts in formal entitlements to a policy of reductions that recognised historical rates of extraction.107 In order to execute this policy, the implementation of the six ground water plans was deferred so that the Department could establish accurate information on the historical rates of extraction for all licensees subject to the six plans. For this purpose, the Department, with the assistance of various committees, undertook an extensive consultation exercise with all licensees. It emerged that certain licensees had made ‘late developer’ investment decisions on the basis of the plans’ initial policy of proportional reductions. Both the applicants in Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 made submissions in this consultation exercise and both were aggrieved that the amended Lower Murrumbidgee plan did not include them in the schedule of special circumstances licensees who suffered only the 52 per cent reductions in entitlements. Their reductions were greater. The applicants argued that the Minister owed them a duty of procedural fairness because the inclusion of the special circumstances schedule identified particular individuals and treated them in a particular way in relation to important entitlements, and that the applicants were effectively invited to have their individual positions dealt with as potentially constituting special circumstances too: Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 at [84]. They argued that they had been denied procedural fairness, especially because they were not properly informed about the nature of the consultation exercise and criteria that were to be applied in determining the schedule of special circumstances

licensees. Thus, they argued, their submissions did not address the criteria, and they were not given the opportunity to respond to the initial adverse conclusions of the relevant committee. The applicants asserted that, by reason of these failures, their claims for special circumstances were never properly considered and the amended plan could not validly operate with the associated regulations to replace their old licences with the new ones: [2008] NSWLEC 165 at [85]–[87]. 15.50 In rejecting their arguments, Jagot J at [98]–[118] explained the relevant principles for ascertaining a duty of procedural fairness and the content of that duty, if it applies. It is worth noting the following essential points raised by Jagot J about ascertaining the existence and content of such a duty: The duty of procedural fairness ‘relates to the process by which a statutory power is exercised and not the outcome’. The test for finding a duty of procedural fairness is ‘whether the exercise of power may destroy, defeat or prejudice a person’s rights, interests and legitimate expectations’. [page 337] While this test is not resolved in the negative by characterising a power as legislative, ‘there is a significant distinction between decisions that directly and immediately affect a person individually and decisions that affect a person simply as a member of the public or a class of the public’. The legislature is more likely to intend that procedural fairness applies to the exercise of a power that singles out individuals and affects their interests in a manner differently from the way in which the interests of the public at large are affected. A decision may impact on people differentially but still be ‘indiscriminate’ in the relevant sense. ‘Where … a statute confers a power directly and immediately to

affect rights, interests or legitimate expectations of people in an individual capacity the presumption that the legislation intended procedural fairness to be observed is strong.’ The presence of some statutory prescription of procedural requirements does not necessarily indicate a legislative intention to exclude common law procedural fairness. However, the duty of procedural fairness, if it exists, is subject to the particular statutory framework. The requirements of procedural fairness may require different procedures to be followed by the repository of the power from one situation to the next. The circumstances of the case, and the nature and subject matter of the inquiry, are all relevant to ascertaining the content of the duty in any particular case. If the duty applies, the fundamental principle is that a party liable to be affected by the decision be given an opportunity to be heard. This ordinarily requires the affected person to have the opportunity to ascertain the relevant issues and be informed of the nature and content of any adverse material. A decision maker need not necessarily disclose their ‘thinking processes or proposed conclusions’. The decision maker may use other persons and bodies in the decision-making process. The duty is fulfilled if the process as a whole is fair; it should not impose unreasonable requirements. Breach of the duty is established by actual unfairness or practical injustice, to be determined on the circumstances of the case and by showing that the person affected was deprived of the possibility of a successful outcome. 15.51 After giving a detailed description and analysis of the amendment order process, Jagot J held that the power of the Minister under s 45(1)(a) to amend a management plan at any time ‘if satisfied it is in the public interest to do so’ does not attract the duty of procedural fairness. Her Honour reasoned at [225] that the exercise of this power ‘does not involve an impact on individuals in the requisite direct and immediate sense … Any amendment to a plan will necessarily impact on all people with

any interest in the water source as a class even though the impact itself might be different.’ This was true even though the plan was expressed to operate in a particular manner in respect of certain licensees named in the special circumstances schedule. Because a plan set a cap on the overall level of water extraction and then shared that resource between different licensees, a variation in the allocation of water to one licensee necessarily meant that there would have to be a variation in the allocation of water to others. The interests of all [page 338] the licensees under a plan were interlinked. At [2008] NSWLEC 165 at [227], her Honour said of s 45(1)(a): It is a power exercisable from time to time to enable the Minister to manage a limited resource consistently with the water management principles conditioned not on the interests of any individual but the Minister’s view of the public interest. Factors influencing the Minister may be both foreseen and unforeseen. They will involve potentially conflicting considerations about a basic resource. Resolution of these considerations is a political endeavour for which the Minister takes political responsibility.

Further, the Department’s endeavours to consult widely with potentially affected people could not give rise to a duty of procedural fairness by the invocation of legitimate expectations where there was no duty to be found from the interpretation of the legislation. In the alternative, Jagot J at [229]–[250] also considered what the duty of procedural fairness may have required if it were found to apply. Her Honour here emphasised the variable content of the duty. She rejected any argument that the Minister personally could have been bound to consider the circumstances of individual licensees claiming special circumstances, noting the scale of the exercise involving six regions and the fact that all the licensees’ circumstances were interlinked. Further, the Minister

was entitled to receive advice from any source and to rely on that advice. In any case, the scale of the duties that the applicants argued for was too onerous for the circumstances of amending the plans. The duty of procedural fairness in these circumstances would not have required that the applicants be notified of adverse conclusions made by the committees in respect of their submissions. Finally, the one real issue disclosed on the facts was the failure of the Minister (or the Department on the Minister’s behalf) to advise those wishing to make special circumstances submissions of the criteria for the committees’ assessment of them. In response to this issue, her Honour found that when the submissions were invited there were no published criteria; indeed, the criteria were actually worked out through the process of considering the submissions. Considering the process as a whole, each licensee’s submissions were carefully considered across a range of factors raised. 15.52 To what extent does this decision determine the application of procedural fairness to the standard planning power under the Water Management Act 2000 (NSW), were it ever to be used? As noted above, the Lower Murrumbidgee ground water sharing plan was a Minister’s plan made under s 50, as were all of the initial water sharing plans made in New South Wales.108 The main procedural provisions apply to the exercise of this power only to the extent that the Minister chooses. Similarly, the s 45 power to amend a plan, including a Minister’s plan, is unrestrained by statutory process other than a requirement to obtain the concurrence of the Minister for the Environment or, if the amendment varies a bulk access regime, a requirement to consult a management [page 339] committee, if any is constituted for the area. In Harvey v Minister

Administering the Water Management Act 2000 [2008] NSWLEC 165 at [67]–[72], Jagot J rejected the applicants’ challenge to the use of the s 45(1)(a) power to effect such a significant change in the plan, emphasising the breadth of the ‘public interest’ criterion. Thus, the specialised ministerial planning powers under ss 50 and 45(1) (a) have been given a broad effect by judicial interpretation, unconfined by a common law duty of procedural fairness despite the highly discretionary nature of those powers. It is suggested that there is even less prospect of finding a common law duty of procedural fairness applies to the standard planning procedures that, on a simple reading of the Act, have a potentially broader operation and a more defined procedure. 15.53 This discussion of the New South Wales law leaves open the question whether a similar view would be taken of water resources planning powers that have a more limited operation in geographical and socio-economic circumstances. Reference to other planning case law may be helpful. An earlier case involving an argument of procedural fairness in the context of a natural resources management plan was Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director, Department of Conservation and Land Management (1997) 94 LGERA 380. There, the plaintiff associations argued that the Department had not, in making operational logging plans, gathered adequate information and that it had failed to fulfil a duty to consult the plaintiff associations in breach of a legitimate expectation of consultation. The Western Australia Supreme Court held, in relation to the first argument, that the decision maker was not required to gather information that was not readily available and the plaintiffs had not established by their pleading that the information was readily available: Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director, Department of Conservation and Land Management (1997) 94 LGERA 380 at 431 per Templeman J, with whom Murray J agreed. In relation to the argument of procedural fairness, the court accepted that it was possible for a legitimate expectation of consultation to arise from various statements published by the

Department, and from the fact that the neighbouring community of residents would be affected by the execution of the operational plans. However, it was held that the expectations of consultation arising in the members of the plaintiff associations did not found an expectation in the plaintiff associations themselves: (1997) 94 LGERA 380 at 439 per Templeman J, with whom Murray J agreed. Thus, while the plaintiffs’ statements of claim were struck out in that case, the essential argument that there may be duties of procedural fairness arising in the preparation of a plan was not rejected. The Supreme Court of Western Australia distinguished the outcome in Bridgetown-Greenbushes in Re Western Australian Planning Commission; ex parte South Fremantle/Hamilton Hill Residents’ Association Inc [2005] WASC 50. In the latter case, the applicant association contended that the relevant government departments had adopted a practice of consulting it and its members on previous drafts of an environmental management plan for a residential development and had given undertakings to do so on the next draft of the plan. Templeman J noted the recently reduced role of the doctrine of legitimate expectation in Australian law but held, nevertheless, that the circumstances of the case required that the applicant association be given an opportunity to be heard by the government departments before they made their decisions on the environmental [page 340] management plan: Re Western Australian Planning Commission; ex parte South Fremantle/Hamilton Hill Residents’ Association Inc [2005] WASC 50 at [40]–[47]. 15.54 There are other decisions where arguments of procedural fairness have been considered in the context of procedures of consultation for making a plan. The important threshold question

is always whether the relevant legislation intends to exclude the operation of the common law rules, leaving only a statutory code of procedure to apply. Alternatively, a statutory planning process for management of an irrigation district has been interpreted strictly to ensure that common law procedural fairness standards were accorded to an affected landholder: Goulburn Murray Rural Water Authority v Rawalpinidi [2010] VSC 166. In a contrasting example, even a statutory power for the decision maker to obviate the statutory process of consultation may leave no room for the operation of the common law rules: East Melbourne Group v Minister for Planning [2005] VSC 242; 142 LGERA 164 at [70]–[75]. Further, if the requirements of procedural fairness apply to some stages of the planning process, they may not apply to all stages: Baarmutha Residents Association Inc v Indigo Shire Council [2005] VCAT 1521; 142 LGERA 204. A duty to accord procedural fairness is not likely to apply where the planning process does not directly affect particular individuals; a statutory planning process potentially engaging the public at large is not likely to invoke a duty to accord procedural fairness: Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122 at [60]; 140 LGERA 185 at 197. On the other hand, the broadening of the threshold test of a duty to accord natural justice to those whose ‘interests’ will be affected by the decision of a public authority may provide the basis for engaging the exercise of planning power.109 Ultimately, whether duties of procedural fairness will arise in relation to the water allocation planning procedures of each jurisdiction will be a question of statutory interpretation to be answered in respect of each set of provisions over time.

Approval of a plan 15.55 The two main issues to consider here are: who are the persons responsible for approving a plan and what are the procedures to be followed in giving that approval?

Who approves the plan?

15.56 The prevailing model (applicable in New South Wales, South Australia, Tasmania, Victoria and the Australian Capital Territory) is that the minister responsible for the administration of the water resources legislation has the power to approve a plan.110 In Victoria and the Australian Capital Territory, the plan (environmental flow guidelines in the Australian Capital Territory) is also subject to parliamentary disallowance.111 In South Australia, a levy proposal as part of a plan is also subject to [page 341] referral to the Natural Resources Committee of the parliament and, if the Committee objects to the proposal, may be subject to parliamentary disallowance.112 15.57 The other model, which applies in Queensland, is that the plan does not have effect until it has been approved by the Governor in Council.113 A plan is also regarded as subordinate legislation, must be tabled in the Legislative Assembly and is subject to parliamentary disallowance.114

The process of approval 15.58 The legislation may prescribe factors that are to be considered by the decision maker and some supplementary procedural requirements to obtain the consent of another person, such as a minister with associated natural resource management functions. There are also various procedures for notification of an approved plan. 15.59 For the most part, the factors to be considered by the decision maker are determined by the general statements of objectives, management principles and the duties to consider or implement them, as discussed in chapter 4. The legislation of the various jurisdictions tends not to repeat a specific set of relevant

considerations for the approval of a plan, except that there will generally be a duty (express or implied) to take into account the submissions made during the consultation process and any report presented to the decision maker on the consultation process.115 The Victorian Water Act 1989 provides no basis for an express or implied duty for the Minister to consider submissions made during public consultation or to consider a report of the consultative committee. However, there would be an implied duty on the Minister to consider consultation submissions when the Minister prepares the draft plan in default of the consultative committee as, in this situation, there is an express duty on the Minister to consult interested persons.116 A final duty of consultation may involve the Minister, if minded to amend the plan, consulting with the committee or board that has prepared the plan.117 In New South Wales, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment to the making of a plan.118 15.60 There will usually be a formal process of public notification of the approved plan either before or after it comes into operation,119 and certainly a requirement to [page 342] make copies of a plan publicly available.120 In Queensland, the Minister must, within 30 days after the approval of a plan, prepare a report about the plan summarising the issues raised in the consultation process and how those issues have been dealt with.121 The Queensland and Victorian Acts require the Minister to give public notice of a decision not to proceed with making a plan.122 By contrast, in South Australia and the Australian Capital Territory, if the Minister decides not to approve a draft plan, the Minister must refer it back to the body preparing the plan, which

must then prepare a new draft plan and follow the same procedures again.123

Monitoring, reviewing and amending a plan 15.61 Monitoring and reviewing the implementation of a plan are crucial to the practice of adaptive management and lay the foundation for the future amendment of a plan. What are the duties to monitor the implementation of a plan, and what provision is made for the duration of a plan and its review and amendment? These questions will be considered in light of the pertinent national water policy principles.

Duties to monitor implementation of a plan 15.62 The 1994 Council of Australian Governments (‘CoAG’) National Water Reform Framework Agreement124 made no reference to monitoring. The 1995 National Framework for the Implementation of Property Rights in Water125 refers to the need for ‘compliance monitoring systems associated with the policing and enforcement of conditions and terms of … entitlements’, but does not mention monitoring in the context of the planning system. The 1996 National Principles for the Provision of Water for Ecosystems126 states as principle 8 that ‘[e]nvironmental water provisions should be responsive to [page 343] monitoring and improvements in understanding of environmental water requirements’. The discussion of this principle explains, pertinently: monitoring programs need to be established to ensure the environmental water provisions are maintaining ecological values. Monitoring programs allow for continuous or periodic review of flow or watering strategies and provide a means for assessing whether or when risks to ecological values are occurring.127

The NWI addresses more than the question of monitoring the implementation of water plans; it endeavours to establish the policy framework for the development of a national system of water resource accounting.128 The ‘outcome’ stated in para 80 for that policy framework indicates the scope of the proposed accounting system: The Parties agree that the outcome of water resource accounting is to ensure that adequate measurement, monitoring and reporting systems are in place in all jurisdictions, to support public and investor confidence in the amount of water being traded, extracted for consumptive use, and recovered and managed for environmental and other public benefit outcomes. [Italics in original.]

15.63 Essentially, the purpose of this accounting is to review whether the water allocation planning is achieving the plan objectives. The National Water Accounts published by the Bureau of Meteorology (see [15.12]–[15.13] above) and the Water Account, Australia published annually by the Australian Bureau of Statistics (regarding physical water supply and use) do not serve this purpose. At this stage, we consider what statutory guidance each jurisdiction has provided for the monitoring of the implementation of water plans and how that may interact with systems of water accounting. The provisions for water accounting are discussed more fully in chapter 21 at [21.9] ff. New South Wales 15.64 In New South Wales, under the Water Management Act 2000, the Minister is to ensure that a management plan is audited at least every five years ‘for the purpose of ascertaining whether its provisions are being given effect to’ (s 44). The audit is to be carried out by an audit panel appointed by the Minister in consultation with the Water Management Committee for the management area, if one exits. The criteria for the audit are to be stated in the management plan itself; and include (s 35(1)): a vision statement; objectives consistent with the vision statement;

strategies for reaching those objectives; and performance indicators to measure the success of those strategies. [page 344] A five-yearly audit of this sort should enable the Minister to determine whether a management plan is achieving its objectives, including with respect to an EWA. 15.65 However, the value of these audits may depend on the nature of the ‘performance indicators’ established by the plan. The New South Wales Court of Appeal has held in Nature Conservation Council of New South Wales Inc v The Minister Administering the Water Management Act [2005] NSWCA 9 at [38]–[52]; 137 LGERA 320 at 337–340 that the ‘performance indicators’ do not need to be expressed in the form of a ‘target’ or ‘standard’, at least not in a Minister’s plan. Spigelman CJ at [41] explained that each of the performance indicators in the plan under challenge: commence with either the word ‘change’ or ‘extent’. They do not state expressly the direction of any ‘change’ or the level of any ‘extent’ which can be said to indicate ‘success’ of the ‘strategies’.

This was one of the bases of the applicant’s challenge to the validity of the plan. However, the court held at [41] that it was ‘quite clear from the indicators as to the direction of any “change”, or movement in “extent”, which would indicate success rather than failure’. The court relied on an appendix to the plan, which the Act said did not form part of the plan, but which explained the measurement mechanisms for each of the performance indicators. For example, in relation to the performance indicator ‘Change in low flow regime’, this was to be measured against various criteria, including the number of days per water year where flow is below the 95th and 80th percentile. The court noted that the measurement mechanisms identified a series of matters capable of quantitative and qualitative

assessment. It did not trouble the court that there was no standard or target to be reached, or that the performance indicators would not operate as any form of limit on the allocation of water under the plan. 15.66 The audit provisions do not create legal duties to monitor and report on the amount of water being extracted for consumptive uses, traded, or managed as EWAs from year to year. However, the Act requires the Minister to maintain a register of available water determinations and water allocation accounts for each licence, crediting water allocations made pursuant to available water determinations and debiting water allocations that are taken or assigned (transferred).129 ‘Adaptive environmental water’ taken under licences should be recorded in this way. Also, the accounting of the water actually allocated to the environment from year to year will be reflected in the maintenance of water accounts for licensees. However, EWAs released under the terms of a management plan may not be accounted in this way. The New South Wales Office of Water maintains over 5000 monitoring stations to measure the quantity and quality [page 345] of water in rivers, streams, dams and groundwater.130 The data is used to ‘determine water availability, water allocations and water releases; develop water sharing plans; evaluate performance of water sharing plans’.131 The NSW Office of Water also ‘monitors the effects of water sharing plans to determine whether they are succeeding in improving the health of our rivers and aquifers’.132 The reports of this monitoring reflect on the outcomes for the river valleys rather than specific water sharing plans, though there is limited evaluation of the outcomes against plan objectives. The reports do not explicitly purport to be s 44 audit reports. Another explicit form of water sharing plan review is being

conducted by the Natural Resources Commission133 under s 43A of the Water Management Act 2000 (NSW), which provides for the Commission to review water sharing plans for the purpose of informing ministerial decisions on whether to extend the life of plans beyond the basic statutory term of 10 years or to make a new plan. The Commission is to review the extent to which the water sharing provisions have contributed to the achievement, or failure to achieve, the ‘State priorities for local land services’, which are defined in the Local Land Services Act 2013 (NSW) to include natural resources management standards and targets as well as state government policy priorities for ‘for agricultural production, biosecurity, natural resource management’ (s 4(2)). Those priorities are interpreted by the Commission to be: productive and resilient water-dependent industries secure long-term water supply for rural and urban communities healthy and resilient water-dependent ecosystems134

which are different from the objectives of s 3 of the Water Management Act 2000 (NSW). While this review procedure purports to evaluate water sharing planning within the broader context of integrated natural resources management, the competing criteria are potentially confusing. Queensland 15.67 The Queensland Water Act 2000 obliges the Minister to report on the effectiveness of the plan in implementing the sustainable management of water (ss 49 and 41). As to the criteria of reporting, the plan must state the economic, social and environmental outcomes for the management and allocation of water. In simple terms, the Act requires a plan to establish a framework for monitoring the implementation of the plan, and imposes a duty on the Minister to report on that monitoring in accordance with the plan. [page 346]

However, it requires the plan to set only very general criteria against which to report, leaving regulations to prescribe the times and matters for reporting. South Australia 15.68 The South Australian Natural Resources Management Act 2004 establishes monitoring and reporting requirements for both the State NRM Plan and for regional water allocation plans. The abolition of the NRM Council means that this state-level function falls to the Minister. The Minister’s functions include keeping the state and condition of natural resources under review, and compiling and maintaining relevant information (s 10(1)). The Minister may set standards and policies for the gathering and recording of such information (s 10(4)). The State NRM Plan must provide for the monitoring and evaluating of the state’s natural resources ‘on an ongoing basis’ (s 74(3)(a)). While the Act requires the State NRM Plan to ‘identify goals, set priorities and identify strategies’ (s 74(3) (b)), it does not require the plan to identify the more specific objectives and performance indicators against which monitoring results can be evaluated. The Minister must review the State NRM Plan at least every five years (s 74(6)). The regional NRM boards have the function to keep a regional NRM plan under review (s 29(1)(b)), a function that the NRM groups could no doubt assist with (s 52). The function is to be performed in accordance with a regional NRM plan, which is required to set out the methods by which a board will monitor ‘the state and condition of natural resources’ and ‘assess the extent to which it has succeeded in implementing the plan, with particular reference to the monitoring and evaluation of the effectiveness of the natural resources management programs and policies’ (s 75(3)(e)).135 Again, the Act does not require a regional NRM plan to identify the more specific objectives and performance indicators against which monitoring results can be evaluated. A water allocation plan, which becomes part of regional

NRM plan, must include a statement ‘of the environmental outcomes expected to be delivered’ by provision of environmental water under the plan (s 76(4)(aab)(iii)) and provide for regular monitoring of the capacity of a resource to meet water demands on a continuing basis (s 76(d)). The Act appears not to require a public report on the results of monitoring; rather, a board must report to the Minister (s 29(5)), though the Act does not state the timing of such reports. Tasmania 15.69 The Tasmanian Water Management Act 1999 obliges the Secretary of the Department to review a water management plan in accordance with the requirements specified in the plan, if any, or in accordance with a direction given by the Minister, or where it is ‘necessary to do so to ensure the consistency of the plan with any relevant state policy (s 34(1) and (1A)). The section of the Act governing the scope of a plan does not require, nor specifically authorise, a plan to include provisions for monitoring and [page 347] reviewing the implementation of a plan (s 14). The process of review by the Secretary is directly connected to the process of amendment, which must generally be undertaken in accordance with the same procedures for making a plan. Otherwise, there is no requirement for the results of a review to be published. Victoria 15.70 As discussed above at [15.8], the Victorian Water Act 1989 obliges the Minister to ensure that there is a continuous program of assessment of the state’s water resources and the publication of that assessment information. The provisions for ‘Long-term Water Resources Assessments’136 create a thorough public process for evaluating and responding to the results of water resources

monitoring every 15 years. The evaluation is made against the statutory criteria of whether there is ‘a decline in long-term availability of surface water or groundwater which has a disproportionate effect’ on water for environmental or for consumptive purposes (ss 22L and 22P). The Minister also has duties to review a sustainable water strategy every 10 years or if a long-term water resources assessment impacts on it (s 22I). In addition to these assessment functions of the Minister, an important part of monitoring and reporting is the water accounting framework. The Act provides that a management plan for a water supply protection area may prescribe requirements for ‘metering, monitoring and accounting for ground water or surface water or both’ (s 32A(3)(a)). As a management plan is binding on every person (s 32A(11)), a prescription of these requirements would create legal duties on the persons nominated to perform the various functions. The administration and enforcement of an approved management plan is conferred on a water authority (s 32B), which must report annually on the performance of its duties to the Minister and to every catchment management authority whose catchment region is wholly or partly within the water supply protection area (s 32C). The report must also be made available to the public (s 32D). However, although a management plan will require annual public reports on its implementation, it does not expressly require monitoring and reporting about the implementation of an EWA; it also does not require that the plan specify performance indicators against which the success of the plan may be evaluated. 15.71 An entitlement may likewise impose metering requirements. There are metering obligations on a water authority holding a bulk entitlement (s 43(h)) or a person holding a take and use licence (s 56(xii)). There is no explicit mention of a power to require a water authority to report publicly the results of metering under its bulk entitlement. One may assume that all licensees could be required to report metering results to a water

authority. A water use licence may contain conditions that require monitoring and reporting, which would appear to be the means for metering the water taken under authority of a water share (s 64Z). Although there is no specific provision to set conditions on environmental entitlements that require monitoring and reporting on their implementation (s 48J), the Victorian Environmental Water Holder (‘VEWH’) must maintain records of how it applies the water it holds as environmental entitlements and report annually on the [page 348] performance of its functions (ss 33DT and 33DU). The VEWH must also make seasonal watering plans and seasonal watering statements (ss 33DX and 33DZ). The Environment Minister may also make rules about the performance of these functions by the VEWH, including as to the information about the performance of its functions that it to be made public (s 33DZA). Australian Capital Territory 15.72 The Australian Capital Territory Water Resources Act 2007 confers on the EPA the functions of keeping under review the state and condition of water resources in the territory and maintaining up-to-date information about water resources (s 64(1)(a) and (d)). The Authority also has a duty to maintain a continuous program of assessment of the territory’s water resources (s 68). However, neither the functions nor the assessment provisions expressly create a duty to publish this information; there is only a general function of public education about water resources (s 64(f)). The Act does not spell out in any greater detail the duties of monitoring water resources. The Act’s provisions for environmental flow guidelines do not say anything about how the implementation of the guidelines will be monitored, nor do they require the guidelines to provide for this (ss 12–15). The 2013

guidelines have assessment’.137

a

brief

discussion

of

‘monitoring

and

Duration and review of plans 15.73 While the NWI says that it is for the states and territories to determine the duration or frequency of review of water plans, the NWI guidelines for water plans also state that:138 3 4

[a] plan duration should be consistent with the level of knowledge and development of the particular water source; and In the case of ongoing plans, there should be a review process that allows for changes to be made in light of improved knowledge.

The various jurisdictions have treated these issues of duration and review differently.

15.74 New South Wales has provided for maximum terms of 10 years, with the requirement for a ministerial review (in consultation with the Minister for Climate Change and the Environment) after five years to ascertain whether the plan is ‘adequate and appropriate for ensuring the effective implementation of the water management principles’.139 The water sharing provisions of a plan are excluded from this fiveyearly review, but are subject to an alternative review process that informs the Minister’s decision whether to make a new plan or to extend the water sharing provisions of current plans. The Minister may, on the recommendation of the Natural Resources Commission, extend the water sharing provisions of a plan for a further period [page 349] of 10 years.140 Before deciding whether to do so, the Minister must consider a recent report by the Natural Resources Commission that reviews the extent to which the water sharing provisions of the plan have contributed to the achievement, or failure to achieve,

the ‘state priorities for local land services … that relate to natural resource management’, and whether the water sharing provisions should be changed. If the Minister decides not to extend a plan for a further 10 years (presumably because the water sharing provisions should be revised), the Minister may still extend the existing plan for another two years or until the commencement of a replacement plan.141 15.75 In Queensland, a water resource plan expires on 1 September following the tenth anniversary of its approval, unless it is sooner repealed or extended by the Minister.142 The Queensland Water Act 2000 provides that the Minister must report on each water plan within the time stated by regulation (s 49). A plan is extended when the Minister decides to postpone the expiry of the plan if satisfied that the plan is advancing sustainable water management and the plan’s outcomes, or if the Minister is preparing a new plan to replace it (ss 54–56). The Minister has a choice to amend or replace a water plan, and must do one or other of these if satisfied that a plan no longer advances sustainable management of Queensland’s water.143 15.76 The South Australian Act specifies no duration for a water allocation plan or a regional NRM plan, so these plans will continue indefinitely subject to review and amendment.144 A regional NRM board must review and update its business plan at least every three years and may, as part of that review, propose any regional plan amendments that are required for consistency with the State NRM Plan or as the board considers necessary or desirable. A board must review its entire NRM plan, including the water allocation plan, at least once every 10 years. 15.77 The Tasmanian Act also specifies no duration for a plan. However, it obliges the Secretary to review a plan in accordance with any requirements in the plan or a direction from the Minister. When reviewing a plan, the Secretary must propose amendments where it is necessary to ensure consistency with any

relevant state policy and may propose such other amendments to the plan as the Secretary considers desirable to give effect to the objectives of the Act.145 15.78 The Victorian Act specifies no term for a plan but confers on the Minister the power to amend or revoke a water supply protection area plan, subject only to procedural requirements of consultation.146 The only process of review would appear to be the annual process of reporting by the Water Authority administering the plan, which is described [page 350] above at [15.70] in relation to duties to monitor, and the longterm assessment, which is described above at [15.8].

Powers and process for amending a plan 15.79 There may be various types of amendments to make to a plan. Some may be small changes correcting a misstatement of information or clarifying the statement of a substantive proposition but not involving the effective amendment to the policy of the plan. Other amendments may be proposed as the result of a review of the implementation of a plan and involve a significant change to policy. Such policy amendments may be made during the normal term of a plan (if there is one) or be part of the re-making of a new plan to replace an existing one. The legislation may provide different procedures for the different types of amendments. Amending a plan may involve reductions in allocations, and that can give rise to compensation issues, which are discussed in chapter 22. New South Wales

15.80 The New South Wales Water Management Act 2000 provides two avenues for amending a management plan. The first avenue in s 42 follows the standard process for making a plan, including public consultation (s 42(1)). The second avenue in s 45(1) and (3) permits the Minister, with the concurrence of the Minister for Climate Change and the Environment, to amend a management plan at any time by order published on the NSW Legislation website in the following limited circumstances (s 45(1)): (a) if satisfied it is in the public interest to do so, or (b) [as provided for in the plan], or (c) if … required to give effect to a decision of the Land and Environment Court relating to the validity of the plan.

The Minister may also repeal a management plan (other than a water sharing plan) at any time by publishing an order on the NSW Legislation website (s 45(5)). However, the Minister may not by such an order amend a plan by extending its duration (s 45(4)). Neither can the Minister amend by order a ‘bulk access regime’ for a management area for which there is constituted a water management committee unless the Minister has consulted the committee about the proposed amendment (s 45(7)). The amendment or repeal of a plan by order takes effect from the date that the order is published in the NSW Legislation website, unless a later date is specified (s 45(6)). 15.81 The current form of the s 45 power was enacted in 2004.147 Previously, the equivalent power to amend a plan as provided for in the plan was found in the general amendment provision of s 42. In 2005, the New South Wales Parliament inserted two ministerial amendment powers into a set of plans made in 2003 to reflect later statutory [page 351]

amendments.148 The ministerial powers inserted were to grant access licences subject to adaptive environmental water conditions for water that ‘arises through water savings in the system’, and to augment the planned environmental water by the cancellation of access licences held by the Minister. The scope of the s 45(1)(a) ministerial amendment power (the power to amend a plan in the public interest) was considered in Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165.149 In 2006, the Minister gazetted an order that amended the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 to change the policy for reducing allocations from an across-the-board 52 per cent reduction of all licensees’ formal volumetric entitlements to reductions that recognised historical rates of extraction by individual licensees. The lower Murrumbidgee plan was one of six ground water plans amended in this way. The applicants challenged the use of the amendment power with the main arguments that s 45(1) did not authorise an amendment that: (i) completely changed the basis for the allocation of entitlements to licence holders and that such an amendment should have been conducted through the standard process of plan amendment, which included due regard to the socioeconomic impacts of the proposals in the draft plan; and (ii) changed a plan that was not yet in operation in such a way that it would avoid the operation of ss 46 and 87AA relating to compensation for reduction in entitlements. 15.82 Jagot J in the Land and Environment Court — Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 at [61]–[75] — rejected the first argument, saying that the essential character of the water sharing plan remained: it was still a plan directed to achieving sustainable use of the resource and the long-term extraction limit was the same. The power in s 45(1)(a) is broad, as the ‘public interest’ criterion would

entitle the Minister to range widely and make ‘material alterations’ to the plan. The concept of ‘public interest’ would often include consideration of the socioeconomic impact of proposals, though consideration of such factors does not require the Minister to have regard to submissions about the particular impact of the plan on the financial position of individuals: the concept invokes the interests of the public generally rather than the interests of any individual. Further, the power in s 45(1) is ‘a freestanding power of amendment’ and was not to be read down because of the separate provision for a standard power of amendment (in s 42) or the fact that s 45 could be used, as here, to amend a Minister’s plan. Her Honour concluded that the applicants had not established that the Minister was not satisfied that the amendment was in the public interest; indeed, her Honour found that the Minister had formed the required state of satisfaction. The breadth of this power of amendment in the ‘public interest’ was affirmed in N & J Investments Pty Ltd v Minister Administering Water Management [page 352] Act 2000; Arnold v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; 181 LGERA 166 at [41]–[44]. Jagot J at [76]–[78] also rejected the second argument. As the 2003 plan had never been in operation before the 2006 amendment, the applicants did not hold the categories of Water Management Act access licences to which the compensation provisions of s 87AA applied, so they were not entitled to compensation and the s 46 requirement to state the purpose of the reduction did not apply. While Jagot J’s technical interpretation of the amendment provisions is defensible on the statutory language, it is suggested that the Water Management Act 2000 (NSW) gives the Minister extraordinarily wide ‘ministerial’ planning powers as an alternative to the standard planning powers that are subject to

defined statutory process. The Minister and the Department conducted extensive planning consultations to prepare the amendments to the six ground water plans, and all without any significant protection from statutorily defined process. This observation is all the more notable because the amendments were made to Ministers’ Plans that had likewise been prepared under mostly non-statutory process. Queensland 15.83 The Queensland Water Act 2000 gives the Minister the power to amend or replace a water resources plan (s 50). The Minister is bound to do one or the other if satisfied that the plan is no longer advancing sustainable water management (ss 50(2) and 41). The same original process applies to amending or preparing a new water plan, including approval by the Governor in Council (s 51). However, the consultation provisions do not apply if the Minister believes that the rights of entitlement holders or the environment will not be adversely affected or the amendment is correcting a minor mistake (s 51). South Australia 15.84 A regional NRM board may initiate an amendment to its regional NRM plan, including its water allocation plan, at any time.150 The standard process of amendment follows the same procedures as for the preparation and adoption of the original plan and must be approved by the Minister. However, a board may follow an expedited process of amendment rather than those standard procedures if the amendment involves only: a change to the information in the plan regarding the description of the resources and economic, social and environmental management considerations; a change to the business plan, including certain items of expenditure; or an amendment to address an urgent situation in relation to the

protection of any natural resources. However, this expedited process is subject to certain additional procedural requirements if the proposed amendment involves an additional or new financial levy. An expedited amendment still requires ministerial approval. [page 353] Tasmania 15.85 The Tasmanian Water Management Act 1999 requires the Secretary of the Department, when reviewing a plan, to propose amendments where it is necessary to ensure consistency of the plan with any relevant state policy. In the course of a review, the Secretary may also propose such other amendments to the plan considered desirable to give effect to the objectives of the Act (s 34(1)–(2)). The procedures for the preparation and adoption of an original plan are to be followed for amending a plan (s 34(3)). However, if the only amendments proposed are those required to make the plan consistent with any relevant state policy, the Secretary may follow an abridged procedure (s 34(4)). That shorter procedure requires a copy of the proposed amendments to be published to the local community together with a notice inviting written submissions, followed by consideration of those submissions by the Secretary who makes a recommendation to the Minister, who must then consider the recommendation before adopting the amendments. Alternatively, the Minister may make minor amendments to a plan in order to correct an error, make a change of form not involving anything substantial, or alter the plan to make it consistent with certain state policies (s 34(5)). If the Minister amends a plan through the abridged procedure, the Minister must also give written notice to all persons who made submissions on the proposed amendment and to all relevant municipal councils (s 35).

Victoria 15.86 The Victorian Water Act 1989 empowers the Minister to amend or revoke an approved management plan (s 32G). The process for the exercise of this power to amend a plan is similar to the process for making the original plan. The Minister must cause notice of the proposed amendment to be published to the local community and be given to specified persons. The Minister must consider submissions made in response and the advice of a consultative committee appointed to advise on the amendment.151 In the case of a repeal of a plan, the Minister is not required to take advice from a consultative committee. Australian Capital Territory 15.87 In the Australian Capital Territory, the power to make a statutory instrument includes the power to amend or repeal it.152 Thus, the procedure for making the original environmental flow guidelines applies to amending or repealing them.

The Commonwealth’s System: from the Cap to the Basin Plan The essential aims of the Cap and the Basin Plan were explained above at [14.27]–[14.34]. The Cap will continue operation until the Basin Plan Sustainable Diversion Limits (‘SDLs’) come into operation. Although the Basin Plan was ‘made’ when the Minister adopted it [page 354] (22 November 2012) and came into effect the day after it was registered (24 November 2012), the SDLs do not take effect until 1 July 2019.153 Until then, the Murray-Darling Basin Authority

(‘MDBA’) has duties to administer the MDB Agreement 2008, including the Cap.154 The content of the Cap and the Basin Plan is discussed in chapter 16. The purpose of this section is to explain the procedures for adopting and amending them and to note the evolution in the MDB decision-making process.

Making and amending the Cap — Schedule F to the Murray-Darling Basin Agreement 1992 15.88 The Cap was imposed by Schedule F of the MDB Agreement 1992 and is continued as Schedule E of the MDB Agreement 2008, adopted by the passage of the Water (Amendment) Act 2008 (Cth). The general terms of the MDB Agreement 2008 and the supporting legislation are discussed in chapter 7. The MDB Agreement 1992 provided that it could be amended by the adoption of a schedule to the Agreement. That process involved the approval of the Ministerial Council and the tabling in the House or Houses of the respective parliaments.155 However, such schedules were not ‘legislative instruments’ under s 7 of the Legislative Instruments Act 2003 (Cth) and so were not subject to that Act’s provisions for registration and parliamentary scrutiny. Further, as neither the Murray-Darling Basin Act 1993 (Cth) nor the MDB Agreement 1992 itself provided that the schedules could be subject to disallowance, they were not subject to Commonwealth parliamentary disallowance.156 The same position applied at the state level.157 15.89 The Ministerial Council was authorised to make schedules to the Agreement to authorise ‘the implementation of any measures, to promote the equitable, efficient and sustainable use of the water, land and environmental resources of the MurrayDarling Basin’ (emphasis added).158 Although there was a community advisory committee created under the MDB Agreement 1992,159 there was no formal procedure specified in the

Agreement for consultation in the making of a schedule. The Agreement’s prescription for amending a schedule is the same as for making one, with the additional obligation of [page 355] the MDBC to review the Agreement from time to time for the purpose of recommending any amendments it thought necessary or desirable to the Ministerial Council.160 15.90 Nevertheless, a very careful process was undertaken to make Schedule F. The Council adopted an interim cap in June 1995,161 confirmed it as permanent in 1997, formally adopted Schedule F to the Agreement in August 2000 and amended it in 2008. The Council’s formal adoption of Schedule F was made after the Commission conducted a careful review of the operation of the Cap in 2000, taking submissions from contracting governments, the community advisory committee and interested stakeholders.162 The review had four components: ecological sustainability of rivers, economic and social impacts, equity, and implementation and compliance. The Commission released a draft report on the review of the Cap for public comment. The final report was a revision of the draft report reflecting comments received in the consultation process and containing a revised text for Schedule F. The final report was submitted to the Council for its consideration and endorsement, which required the unanimous consent of the Council’s members who were present.163 The adoption of Schedule F then triggered the obligations of each contracting government to secure the execution and enforcement of Schedule F as part of the Agreement by its own legislative and executive acts.164 15.91 The adoption of the MDB Agreement 2008 and Schedule E: ‘Cap on Diversions’, has been by Commonwealth enactment with some state complimentary and referral legislation: see chapter 5 at

[5.72] ff. The MDB Agreement 2008 and its Schedules may be amended by agreement of the Ministerial Council and the making of a regulation by the Commonwealth, which must also be tabled in the Commonwealth Parliament and is subject to parliamentary disallowance.165 It is possible that an amendment to the MDB Agreement 2008 could be made to repeal Schedule E.

The Basin Plan and water resource plans under the Water Act 2007 (Cth) 15.92 The Water Act 2007 (Cth) provisions for making the Basin Plan and the water management area plans present an assertion of Commonwealth law-making power and demonstrate, therefore, a process for adopting and amending the relevant plans that is very different from the process for making a MDB Agreement schedule. In broad overview, the MDBA administers the procedure for preparing the Basin Plan and gives the draft plan to the Minister for adoption.166 As noted above at [15.88], [page 356] the Basin Plan 2012167 came into effect on 24 November 2012 and is in the process of implementation.168 In respect of water resource allocation, it defines water resource plan areas for which the Basin States must prepare water resource plans and submit them for accreditation by the Commonwealth Minister for Water as consistent with the Basin Plan. If the Minister decides not to accredit a state water resource plan, the Minister may ask the MDBA to prepare a water resource plan for that management area and submit it to the Minister for adoption. The SDLs are due to take effect on 1 July 2019. By that date, there must be accredited/adopted water resource plans for each water resource plan area.169 The making of the Basin Plan proved politically controversial,170

especially around interpreting the Water Act objectives and setting the SDLs: see chapter 4 at [4.9] and chapter 16 at [16.133]– [16.135]. The focus here is on the essential statutory process of making the Basin Plan and accrediting water management area plans. Even with that focus, there is enormous detail in the Water Act and the Basin Plan that cannot be considered here. We will consider in overview, in relation to the Basin Plan and the water management area plans it will mandate, the same type of issues that were considered in second part of this chapter regarding the state and territory planning systems; namely: when to make a plan; the area and water resources subject to a plan; the making of the plan; the adoption of the plan; and the provisions for monitoring, review and amendment of the plan.

When to make the Basin Plan or a water resource plan? 15.93 The MDBA had a duty to prepare a Basin Plan, as soon as practicable, and give it to the Commonwealth Minister for Water for adoption (s 41). The Minister had 12 weeks in which to consider whether to adopt the draft Basin Plan prepared by the MDBA or to give it back to the MDBA with suggestions for further consideration (s 44(1)). After receiving the second draft of the Basin Plan from the MDBA, the Minister had another six weeks either to adopt it or to direct the MDBA to make modifications [page 357] and return the Basin Plan to the Minister for adoption (s 44(3)). The Act imposed a clear duty on the MDBA and the Minister to make a Basin Plan; there was no discretion to decide not to make one.

Similarly, the Water Act provides that ‘[t]here is to be a water resource plan for each water resource plan area’ defined in the Basin Plan, whether that plan is prepared by the Basin State and accredited by the Commonwealth Minister or prepared by the MDBA for the Minister’s adoption in the absence of an accredited state plan (s 54(2)–(3)). Thus, although the Water Act provides that a Basin State ‘may’ give the MDBA a water resource plan for the Commonwealth Minister’s accreditation (s 63), the Basin States must either submit a water resource plan for Commonwealth accreditation or suffer the Minister to exercise the ‘step-in power’ and direct the MDBA to prepare a water resource plan for the Commonwealth Minister’s adoption (s 68). 15.94 If the Minister exercises the step-in power, there is a timelimited iterative process for the MDBA to present two versions of a draft water resources plan before the Minister must either adopt the plan or direct the MDBA to make final modifications to it and give it to the Minister for adoption (s 69). However, it is not so clear that the Water Act ultimately compels the Commonwealth Minister to exercise the ‘step-in power’ in the event that there is no accredited state plan. The Minister’s power to direct the MDBA to prepare a water resource plan ‘may’ be exercised when there is no Basin State water resource plan that the Minister will accredit (s 68) and the Minister first satisfies the procedural safeguards to the exercise of the step-in power (s 72). The various procedural safeguards ensure that the Basin State has ample opportunity to negotiate a solution before the Minister requests the MDBA to prepare a plan (s 73), including: the duty to negotiate in good faith with the affected Basin State; the duty to give the affected Basin State preliminary notice regarding the intention to exercise the step-in power, and the duty to give the affected Basin State a notice that the Minister intends to exercise the step-in power if the Basin State does not respond to the formal notice of intention to exercise the step-in power.

Ultimately, the Commonwealth Minister ‘may’ exercise the step-in power only if satisfied that the circumstances that give rise to the exercise of the power exist; failure to deal with those circumstances will materially and adversely impact on the efficient or effective implementation of the Basin Plan; and the exercise of the step-in power is the only feasible and effective means for dealing with the circumstances (s 73(14)). The extent and duration of the exercise of the step-in power is also to be limited to what is ‘reasonable to deal with the circumstances that give rise to the exercise of [it]’ (s 73(15)–(17)). The Act’s procedural and substantive safeguards surrounding the exercise of the step-in power are designed more to secure the states’ positions as the primary managers of water resources than to compel the Commonwealth Minister to secure the making of a water resource plan consistent with the Basin Plan within a particular time. 15.95 There is another element in that design where the Act is somewhat unclear. The Water Act provides for the limited accreditation of state water plans (‘transitional’ and [page 358] ‘interim’ water resource plans) existing before there could be accreditation of plans by the Commonwealth Minister as consistent with the Basin Plan (Part 11, Division 1 and Schedule 4). A ‘transitional’ plan is specified in Schedule 4 or prescribed by regulations, and is effectively a water resource plan made by a Basin State before 25 January 2007. Such plans were due to expire on the date specified in Schedule 4, mostly by 2014. An ‘interim’ water resource plan is such a plan made by a Basin State after 25 January 2007171 and before the Basin Plan first took effect and were, generally, to cease to have effect in 2014. Transitional and interim water resource plans are taken to have been accredited and, thus, authorise actions that may be inconsistent with the

Basin Plan during the transitional/interim periods. A significant question is how those statutorily recorded expiry dates interact with the Basin Plan timeline for the Basin States to make water resource plans that could be accredited by the Commonwealth Minister before the SDLs come into effect on 1 July 2019. The Water Act 2007 (Cth) is not intended to exclude or limit the concurrent operation of a state law (s 250B), so it may be open to the states to amend their plans to extend their time and seek accreditation of the amended transitional or interim plans by the Minister, who must accredit such plans if satisfied that the amendment would make the transitional or interim plan no less consistent with the Basin Plan (s 246).172

Area and water resources subject to Basin Plan and water resource plans 15.96 The Basin Plan is for the management of the ‘Basin water resources’, which are defined as ‘all water resources within, or beneath, the Murray-Darling Basin’, but do not include such water resources that are prescribed by regulations or ground water that forms part of the Great Artesian Basin (s 4). The MDB is defined (s 4) as the drainage division of that name, and an indicative map is set out in Schedule 1A to the Act. While the map delineates the MDB, it does not show all of the water resources within the Basin covered by the Act. 15.97 The Water Act defines ‘water resource’ comprehensively to mean (s 4): (a) surface water or ground water; or (b) a watercourse, lake, wetland or aquifer (whether or not it currently has water in it); and includes all aspects of the water resource (including water, organisms and other components and ecosystems that contribute to the physical state and environmental value of the water resource).

The Act, in turn, defines surface water, ground water, watercourse, lake and wetland, though not aquifer. Thus, the Basin Plan applies comprehensively to all water resources

[page 359] found within the MDB unless a resource has been prescribed by regulation to be excluded or it is part of the Great Artesian Basin. Similarly, the Commonwealth Minister has some discretion as to the water resources that are to be covered by a water resource plan for which the Basin Plan provides. The ‘water resources of a water resource plan area’ are defined to be those water resources identified by the Basin Plan as the resources to which a water resource plan will apply (ss 4 and 22(1), item 2). The Commonwealth Minister also has some discretion in defining the water resource plan areas in the Basin Plan. While the water resource plan areas in a state must, as far as possible, be aligned with the management areas provided for in or under that state’s water management law, the omission of an area from a state designation does not preclude the Basin Plan from identifying it as a plan area (s 22(1), item 2). This flexibility in identifying water resources led to the inclusion in the Basin Plan of deep ground water resources that were not previously regulated by state plans.

Procedure for making the Basin Plan and water resource plans 15.98 There are three procedures conducted by the MDBA to consider here: preparing the Basin Plan, recommending to the Minister the accreditation of a Basin State’s water resource plan, and preparing a water resource plan for adoption by the Commonwealth Minister. While the MDBA has responsibility for preparing the Basin Plan, it has duties to consult the Basin States, the Basin Officials Committee and Basin Community Committee in doing so (ss 41– 42). The Officials Committee and the Community Committee are to be established by the MDBA to advise it, especially in relation to

the preparation of a Basin Plan.173 The MDBA may also undertake such other consultation as it considers appropriate in preparing the Basin Plan. However, once there is a proposed Basin Plan, the MDBA has quite specific duties to invite submissions on it from the Basin States and members of the public and to allow at least 16 weeks for the making of such submissions (s 43). The MDBA must consider the submissions it receives on the proposed Basin Plan, and prepare a report on the submissions and how it has amended the proposed Basin Plan following the start of the consultation period. The report must be presented to the Minister and published on the MDBA’s website. The MDBA must also seek comments from the MDB Ministerial Council on the proposed Basin Plan (s 43A).174 The Council has six weeks to comment. If it disagrees with the proposed Basin Plan, the MDBA must respond to those comments, whether or not it alters the proposed Basin Plan, and must publish a summary of the submissions it has received and its responses to them. The Council then has a further three weeks in which to comment to the Minister. 15.99 Clearly, the preparation of a water resource plan is primarily the responsibility of the relevant Basin State pursuant to its own water resources management legislation, [page 360] and it will apply the procedures discussed in the second part of this chapter. Once the Basin State submits a water resource plan to the MDBA, it has a crucial role in recommending to the Commonwealth Minister the accreditation of the plan (s 63). The MDBA must not recommend that the Minister not accredit a plan unless it has first given written notice to the Basin State of any grounds for not recommending accreditation, and having regard to submissions in response by the Basin State. The details of the

accreditation process may be prescribed by regulation, but none appear to be made to date. If the Commonwealth Minister decides to exercise the step-in power and request the MDBA to prepare a water resource plan, the MDBA must do so in accordance with procedures to be prescribed by regulations and having regard to the requirements of the laws of the relevant Basin State (s 68(6) and (7)) — again, there appear to be no such regulations. If the Minister requests the MDBA to prepare the water resource plan because the plan submitted by the Basin State was not accredited by the Minister, then the MDBA is required to incorporate as much of the Basin State’s plan as it can consistently with the Basin Plan (s 68(8)–(9)).

Adoption of Basin Plan and accreditation/adoption of a water resource plan 15.100 The Commonwealth Minister is responsible for the adoption of the Basin Plan, accreditation of a Basin State’s water resource plan or, in its stead, the adoption of a water resource plan prepared by the MDBA (ss 44, 63(5)–(8) and 69). The Basin Plan, the Minister’s accreditation of a Basin State’s water resource plan and the Minister’s adoption of a water resource plan prepared by the MDBA are all legislative instruments for the purposes of the Legislative Instruments Act 2003 (Cth) and, thus, must be registered under that Act and may be subject to parliamentary disallowance, although a decision to accredit or not a state’s water resource plan is not subject to disallowance.175 In the case of adopting the Basin Plan or a water resource plan prepared by the MDBA, the Minister has an initial period of 60 days in which to consider whether to adopt the plan or to return the plan to the MDBA with suggestions for further consideration. When the MDBA re-submits the plan, the Minister has 30 days in which to either adopt the plan or return it to the MDBA with directions that the plan be modified and given back to the Minister for adoption. Such directions are to be tabled in the

Houses of Parliament when the legislative instrument is laid before the House. In giving directions to the MDBA for the modification of a Basin Plan (s 44(5)), the Minister must not give a direction about: any factual or scientific aspect of the Basin Plan; the description and identification of the Basin water resources to which the water resource plan will apply; the determination of the long-term annual diversion limit; and the specification of the Commonwealth’s share of risk from a reduction in the long-term average sustainable diversion limit or another reduction in the reliability of water allocations. [page 361] The statutory intention here seems to be that matters of scientific expertise will be left to the decision of the MDBA. In deciding whether to accredit a Basin State’s water resource plan, the Minister must accredit the plan if it is consistent with the relevant version of the Basin Plan (s 63(6)). If the Minister decides, contrary to the MDBA’s recommendation, not to accredit a water resource plan, the Minister must include a statement of reasons when the legislative instrument is laid before a House of Parliament (s 63(8)). However, as the Minister’s accreditation decision is not subject to parliamentary disallowance, the Commonwealth Minister retains a complete discretion in the determination of whether a Basin State’s water resource plan is consistent with the Basin Plan.

Monitoring, reviewing and amending the Basin Plan and water resource plans Monitoring and reporting 15.101 What are the duties to monitor the implementation of

the Basin Plan, and what provision is made for its duration, review and amendment? The same questions are asked in respect of the water resource plans that are accredited or adopted by the Commonwealth Minister. The Basin Plan must set out a program for monitoring and evaluating its effectiveness (s 22(1), item 13), including the reporting requirements for the Commonwealth and the Basin States. It may be expected that this program will be designed to monitor the implementation of the Basin Plan against the statement of its general objectives and outcomes.176 In 2016, s 22(1), item 13 was amended to add ‘(c) the social and economic impacts of the Basin Plan’ in addition to the existing scientific criteria177 included in five-yearly reviews of the water quality and salinity management plan, and the environmental watering plan. The water quality and salinity management plan must include water quality and salinity objectives and targets, and the targets may specify the place for measurement and may describe the target in terms of the level of salinity being met for a particular percentage of time (s 25(1) and (2)). Likewise, the environmental watering plan must specify its objectives and the targets by which to measure progress towards achieving the objectives (s 28(2)). The targets may be specified as one or more of: water resource health; water flows; water pressure; and water levels (s 28(3)). 15.102 The Commonwealth’s monitoring is to be performed by the MDBA, which has the functions of measuring, monitoring and recording the quality and quantity of the Basin water resources and the condition of water-dependent ecosystems associated [page 362]

with the Basin (s 172(1)(b) and (c)). In performing those functions, the MDBA may adopt measurements, records and conclusions made by a Basin State, or may request a state to carry out its monitoring functions, as the MDBA considers necessary (s 172(2)). The MDBA also has the duty of maintaining an account of the environmental water rights held by the Commonwealth environmental water holder each financial year (s 32). While the MDBA also has the general functions of interpreting and disseminating the information it gathers (s 172(1)(h) and (i)), it has no specific statutory duties to publish the monitoring information that it gathers except that it must, as soon as practicable, inform the Commonwealth Minister and the Basin Officials Committee of any recommendations that it makes to the Basin States and their agencies about any matter that the MDBA considers could affect the quality or quantity of the Basin water resources (s 172(1)(g) and (3)). 15.103 The Basin States’ monitoring and reporting obligations seem, at least, to relate to the implementation of the water resource plans. The Basin Plan must identify the ‘water accounting periods’ for each water resource plan area (s 22(1), item 2) and the requirements that a water resource plan must meet in order to be accredited or adopted (s 22(1), item 11). Those requirements include various criteria that will be relevant to the Basin States’ monitoring and reporting requirements; such as, the long-term annual diversion limit, water quality and salinity objectives, the metering of water taken from the water resources of the plan area, and the monitoring of those water resources (s 22(3)). The Water Act then stipulates quite specific reporting obligations for the Basin States, which illustrate the states’ primary responsibilities for managing the water access entitlements regimes. They must report to the MDBA, in respect of each water resource plan area for each accounting period, about the quantity of water available, the quantity of water permitted to be taken, the quantity of water actually taken, the details of water allocations and other decisions that permit the taking of water, the details of water trading,

compliance with any long-term annual diversion limit and any action to be taken to address any non-compliance (s 71). The Act was unclear on how the results of these monitoring programs would be shared with the states and people generally until an amendment in 2016 (inserting s 52A), which requires the MDBA to conduct and report on an annual analysis of the Basin Plan’s effectiveness. The report must be presented to the Minister, tabled in the Parliament and given to members of the Ministerial Council. 15.104 There are also other mechanisms that may address these questions of reporting monitoring results. First, the Basin States have their own legal requirements for monitoring and reporting water resources information.178 Second, some of this information may find its way into the National Water Accounts to be published by the Bureau of Meteorology under the Water Act.179 Thirdly, the Water Act confers on the Productivity Commission roles to audit the implementation of the Basin Plan (Part 3) and to inquire into the implementation of the National Water Initiative. The Productivity Commission must complete the first audit within five years of the commencement of the [page 363] Water Act, and thereafter complete audits every five years. The Productivity Commission must give reports of its audits to the Commonwealth Minister for Productivity and copies of its reports to the MDBA and the relevant Minister of each of the Basin States. The Commonwealth Minister must table copies of these reports in each House of the Commonwealth Parliament. The Productivity Commission is also responsible for the triennial assessment of the implementation of the NWI (s 88). Reviewing

15.105 The Water Act stipulates no finite life for the Basin Plan. Instead, it provides for regular 10-yearly reviews and a general review on request by the Minister or all of the Basin States (Part 2, Div 1, Subdiv G) and an ongoing facility for amendment (Part 2, Div 1, Subdiv F). The MDBA must conduct regular 10-yearly reviews of the Basin Plan, undertaking the first review in the tenth year after the Basin Plan takes effect or by 2026 (s 49A). A request for a review by the Commonwealth Minister or of all of the Basin States may only be made if the Minister or a Basin State believes that the outcomes of the Basin Plan are not being achieved or its objectives are no longer appropriate. In conducting a review, the Act requires the MDBA to undertake a process of consultation with the Basin States, Basin Officials Committee and Basin Community Committee, as well as with the public. The MDBA must consider any submissions received when compiling its report on the results of the review. It must provide a review report to the Commonwealth Minister and the relevant Minister of each Basin State, and it must also publish the report. If the MDBA believes, as a result of a review, that the Basin Plan should be amended, it may propose an amendment to the Minister pursuant to the amendment procedure. 15.106 There are no Water Act provisions for the direct review of an accredited or adopted water resources plan. Clearly, the review of an accredited water resources plan could be undertaken in accordance with the relevant Basin State law. An accreditation has effect until the water resources plan ceases to have effect or three years after an amendment to the Basin Plan that affects the accreditation, though the Commonwealth Minister may extend the three-year period for up to one more year (Part 2, s 64). In that period, an amendment of a water resources plan may be accredited (see below at [15.107]). An adopted plan has effect for the period specified in the plan (s 70). There would be little purpose in specifically reviewing and

amending an adopted plan. Rather, the adopted plan would set the backdrop for the negotiation of the accreditation of a water resource plan prepared by a Basin State to replace the adopted plan. Amending 15.107 The Basin Plan may be amended by the same process by which it is first made; that is, the MDBA may prepare an amendment on which it must consult and seek public comment before giving the revised version to the Minister to adopt through the same type of process after consultation with the MDB Ministerial Council (ss 45–48). It [page 364] would appear that the MDBA may decide to prepare an amendment to the Basin Plan at any time, as well as after it has conducted a review. The MDBA also has the power of minor or ‘non-substantive’ amendment in accordance with a process to be defined by regulations (s 49). An amendment of a water resource plan prepared by a Basin State has no effect until it is accredited (s 65(1)). The process by which a Basin State may seek the Minister’s accreditation of an amendment is similar to the original process of plan accreditation, the details of which may be prescribed by regulation (s 65). The regulations may also prescribe a process for minor or nonsubstantive amendment of a water resource plan by the Basin State concerned and the MDBA (s 66). There is no provision for amending an adopted plan.

Adjustment in the transition to the Basin Plan 15.108 Under the Water Act 2007 (Cth), the state and territory planning in the MDB is in transition to a regime supervised by the

Commonwealth through the Basin Plan.180 The Basin Plan was initially expected to come into operation in 2011.181 As explained above at [15.95], the Water Act provided for limited accreditation of state water plans (‘transitional’ and ‘interim’ water resource plans) made before 25 January 2007 or made after that date but before the anticipated date for accreditation of plans by the Commonwealth Minister. Both types of plan were to continue to operate even after the anticipated date for adoption of the Basin Plan until, generally speaking, 2014, and for Victoria, 2019. During that phase, those plans would continue to operate and prevail over the Basin Plan where there was an inconsistency. Further, a Basin State could amend a transitional or interim plan during that phase and the Commonwealth Minister had to accredit it if satisfied that the amendment would make it no less consistent with the Basin Plan. Although the MDBA could assist an MDB State during this phase to review or amend a transitional or interim state plan, the substantive effect of the Basin Plan on water resource extraction would only begin to take place when accredited or adopted water resource plans came into effect. The solution to the political controversy about setting the SDLs led to the Basin Plan Chapter 7 defining a process for ‘adjustment of SDLs’, which was supported by amendments to the Water Act secured just before the Basin Plan was adopted.182 The process permits the MDBA to make adjustments of surface water SDLs to reflect the outcomes of works and measures undertaken by a prioritisation of Commonwealth expenditure on improving efficiency of water use over Commonwealth expenditure on [page 365] the acquisition (buyback) of water access entitlements.183 The idea is that improving infrastructure and management rules can (i) require less water to be used to achieve the same environmental outcomes (‘supply measures’) permitting an increase in the SDL

and consumptive use water; and (ii) require less water for consumptive use (‘efficiency measures’), permitting a decrease in the SDL and consumptive use water. These adjustments can be made outside the statutory process for amendment of the Basin Plan. Despite the Minister saying that the original provision of the Water Act 2007 (Cth) s 23 already supported the legal possibility of such a mechanism,184 it is doubtful that the s 23(2) concepts of a ‘formula … to calculate a quantity of water per year’ or ‘any other way that the Authority determines to be appropriate’ could have supported the scope of amendments up to 5 per cent of the SDL based on works and measures, not seasonal or climate variability. The new statutory process unequivocally authorises the MDBA to include in the Basin Plan a power and process to make adjustments to the SDLs of water resource plan areas or part of those resources (including after accreditation or adoption of a water resource plan) or of the SDL for the whole of the Basin water resources, subject only to the limits that the adjusted SDLs still reflect ‘an environmentally sustainable level of take’ and cumulatively total no more than 5 per cent of the whole Basin water resources limit (ss 22(6A) and (6B), 23, 23A and 23B). The Basin Plan provisions further provide criteria that guide the exercise of this adjustment process so that, for efficiency measures, environmental outcomes are increased while maintaining or improving social and economic outcomes and that, for supply measures, equivalent environmental outcomes are achieved with a lower volume of environmental water: Chapter 7, Part 2, Divs 1 and 4. The Basin Plan also establishes the time frames within which the notification of measures may be made amount of the adjustments be notified under the adjustment mechanism (namely, by 15 December 2017),185 and an ultimate reconciliation of the adjustment measures outcomes by 30 June 2024: Chapter 7, Part 2, Divs 2 and 3. The Basin Plan also permits the re-allocation of surface water SDL reduction amounts between ‘SDL resource units’ — or parts of water resource management areas — within

the same state, and permits the adjustment of ground water SDLs by up to 5 per cent to reflect new or improved information about the ground water resources: Chapter 7, Parts 3 and 4. [page 366] The result of the adjustments mechanisms is that the ultimate level of the SDLs may not be known till 30 June 2024. The technique of ‘adaptive management’ has been deployed to make the Basin Plan more politically palatable to its critics.186 In the final gasps of political negotiation, an additional flexibility measure beyond the scope of the Basin Plan process was enacted in the Water Amendment (Water for the Environment Special Account) Act 2013 (Cth) to increase environmental water beyond the Basin Water Resources SDL of the Basin Plan: see at [16.135]. Thus, the transition to the Basin Plan will take a few years yet.

1.

Significant amendments made by the Queensland Parliament before February 2015 were amended by the new Parliament elected that month: see Water Reform and Other Legislation Amendment Act 2014 (Qld); Water Legislation Amendment Act 2016 (Qld); Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (Qld). The water management protocols and entitlement notices seem to fulfil the purposes of the previous ‘resource operation plans’.

2.

The new Chapter 3 was inserted by the Water and Other Legislation Amendment Act 2010 (Qld) s 195 and has since been amended: see chapter 26. There are just four regional Sustainable Water Strategies for the whole state of Victoria: Victoria State Government, Environment, Land, Water and Planning: website and follow links to ‘Planning and entitlements’, ‘Long-term water resource assessment’ and ‘Sustainable water strategies’.

3.

4. 5.

As defined in the Water Act 1989 (Vic) s 34. Water Act 1989 (Vic) s 36(2).

6. 7.

Rights in Water and Irrigation Act 1914 (WA) Part III, Div 3D. Water Resources Act 2007 (ACT) Parts 3 and 8, and ss 16–17.

8.

Stanley Rural Community Inc v Stanley Pastoral Pty Ltd [2016] VSC 764, where a

9.

10.

planning permit was invalidly refused for water allocation reasons that had already been determined by the grant of a water licence by the water authority; Earle v Melton City Council [2017] VCAT 481, where the land use planning permit required connection to the reticulated public water supply rather than reliance on selfsupply. Stanley Rural Community Inc v Stanley Pastoral Pty Ltd [2016] VSC 764. This is not to deny that a land use planning authorisation may properly be required where water resource management legislation is not operating: Lindner & Whetstone v Regional Council of Goyer (No 2) [2006] SAERDC 67. A copy of the NWI is available on the archived website of the National Water Commission: . It is also available on the Australian Government Department of Agriculture and Water Resources website: and follow links to ‘Water policy and resources’, ‘Water management policy and legislation’ and ‘National Water Initiative’.

11. 12.

NWI paras 8–9. The National Water Commission published a number of ‘Waterlines’ reports about water allocation planning; for example, ‘Alignment of water planning and catchment planning’, Mark Hamstead, Waterlines Report Series no 36, 2010: ‘Tools for water planning: lessons, gaps and adoption’; P-L Tan et al, Waterlines Report Series no 37, 2010: ‘Water allocation systems: exploring opportunities for reform’; Barma Water Resources Pty Ltd et al, Waterlines Report Series no 65, 2011: ‘Water allocation systems: exploring opportunities for reform’. There are also many publications of state and territory governments that we cannot begin to list.

13.

B Lindsay, ‘Public Participation, Litigation and Adjudicative Procedure in Water Resources Management’ (2016) 33 EPLJ 325 at 329–332. Water Management Act 2000 (NSW) s 6(6). The initial SWMOP was promulgated by the State Water Management Outcomes Plan Order 2002 (NSW) and has ceased to have effect: status information for this Order: .

14.

15. 16.

Arnold v Minister Administering the Water Management Act 2000 [2015] HCASL 115. Natural Resources Management Act 2004 (SA) s 74. The term ‘State NRM Plan’ is defined in s 3. The current plan is Our Place. Our Future. State Natural Resources Management Plan 2012–2017.

17.

For example, in determining an application for the grant of a water access entitlement, the Minister must consider whether the intended use of the water is consistent with the Territory plan: Water Resources Act 2007 (ACT) s 21(2)(c). Water (Resource Management) Act 2005 (Vic) s 11 inserted a new Division 1C in Part 3 of the Water Act 1989 (Vic).

18. 19.

20.

Victoria State Government, Department of Environment, Land, Water and Planning, ‘Water for Victoria: Water Plan’, 2016, section 8.4: ‘Improving state-wide water resources planning and risk assessment’. The former s 35(1) imposed a basic duty on the Minister to ‘plan for the allocation and sustainable management of water …’. It was deleted by the Water Reform and Other Legislation Amendment Act 2014 (Qld) Part 8.

21. 22. 23.

24. 25.

26. 27. 28.

29.

30.

31.

Water Resources Act 2007 (ACT) Part 8. See also the function of the EPA to ‘keep the state and condition of the water resources of the Territory under review’: s 64(1) (a). Water Resources Act 2007 (ACT) Part 7A, inserted by the Water Resources (Catchment Management Coordination Group) Amendment Act 2015 (ACT). Sometimes such claims of confidential commercial value of water information are not well sustained: Mineralogy Pty Ltd v Department of Environment, Water and Catchment Protection, Office of the Information Commissioner (Western Australia) [2003] WAICmr 14. Water Act 2000 (Qld) s 1010A. The ‘regulator’ is appointed under the Water Supply (Safety and Reliability) Act 2008 (Qld). For a broader discussion of the confidentiality of water accounting information, especially in the context of the taking and use of water, see C McKay and A Gardner, ‘Water Accounting Information and Confidentiality in Australia’ (2013) 41 Federal Law Review 127. All subsequent references in this section are to the Water Act 2007 (Cth), unless otherwise indicated. The National Water Account is published by the Bureau of Meteorology on its website: . Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995, p 3. Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [18] ff. See New South Wales, Department of Primary Industries, Water: and follow links to ‘Water management’, ‘Water sharing plans’ and ‘Plans commenced’. Water Act 2000 (Qld) s 98(4). The relevant provisions were amended by the Water and Other Legislation Amendment Act 2014 (Qld), which inserted a new Chapter 2, including ss 143–145. NWI para 25 (i) and (ii), expounding the ‘outcomes’ to be achieved by the water access entitlements and planning frameworks. Italics in original; bolding emphasis added.

32. 33.

NWI para 38. Water Management Act 2000 (NSW) ss 11 and 15(1); Water Act 2000 (Qld) s 42; Water Management Act 1999 (Tas) s 13(1).

34. 35.

Natural Resources Management Act 2004 (SA) s 76(1). Natural Resources Management Act 2004 (SA) ss 22 and 23.

36. 37.

Natural Resources Management Act 2004 (SA) s 125(1), (2) and (6). Water Act 1989 (Vic) ss 27(1) and 29.

38. 39.

Water Act 1989 (Vic) s 32A(6)–(7A). Water Management Act 2000 (NSW) s 50(1).

40.

Water Management Act 2000 (NSW) ss 50(1)(c) and 50(1A).

41.

Water Management Act 2000 (NSW) s 50(5), which was inserted by Water Management (Amendment) Act 2004 (NSW).

42.

Water Management Act 2000 (NSW) ss 12(1), 15(1) and 50(2)-(2A). Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [77]–[79]. New South Wales Government, Department of Primary Industries, Office of Water, ‘Macro water sharing plans — the approach for groundwater’, November 2015, p 1. The first round of plans applied to geographically well-defined water sources, rivers and their associated major groundwater systems. Macro plans apply to larger areas with a number of sources covered by the plan.

43.

44. 45. 46. 47.

Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources (2005) 138 LGERA 11 at 23; [2005] NSWCA 10 at [32]. Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources (2005) 138 LGERA 11 at 24; [2005] NSWCA 10 at [33] and [34]. Water Management Act 2000 (NSW) s 15, especially s 15(3), subsequently amended by the Water Management Amendment Act 2004 (NSW) Sch 1 [5]. Water Resources Act 1998 (ACT) ss 20, 23 and 24. This Act was repealed by the Water Resources Act 2007 (ACT).

48. 49.

Water Resources Act 2007 (ACT) ss 13–15. Commenced on 1 January 2001.

50. 51.

Commenced on 1 January 2001. This refers to the extent to which harm to the water source or its dependent ecosystems is likely to occur: s 7(3)(a).

52.

This refers to the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring: s 7(3)(b). This refers to the extent to which their intrinsic value merits protection from risk and stress: s 7(3)(c).

53. 54.

55. 56.

57. 58. 59. 60.

61.

Water Act 1989 (Vic) s 4A. See also the Second Reading Speech on the Water (Resource Management) Act 2005 (Vic), Parliament of Victoria, Hansard, Legislative Assembly, 6 October 2005, p 1334. The Victorian Environmental Water Reserve is discussed at [16.42] ff. Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995, principle 1. Emphasis added. NWI para 38. NWI para 39 and Schedule E, paras 1(i) and 5(ii)–(iv). Water interception activities are the subject of NWI paras 55–57. Inserted by the Water Management (Amendment) Act 2002 (NSW) Sch 1 [3]. I Millar, ‘Learning to Share? — Environmental Allocations in Water Management Planning’, paper delivered at Environmental Defenders Office (NSW) Elements Conference, May 2003, Sydney, 86 at 92. Water Management Act 2000 (NSW) s 50(1)(b) and (c).

62.

New South Wales Government, Department of Primary Industries, Office of Water, ‘Macro water sharing plans — the approach for groundwater’, November 2015, p 4.

63. 64.

See Water Act 2000 (Qld), Dictionary, and discussion of this definition in chapter 1. Examples of ground water management plans prepared under these provisions can be seen on the website of the Goulburn-Murray Water Authority: and follow links to ‘Water resources’, ‘Groundwater’ and ‘Groundwater trading’.

65.

Personal communication from an officer of the Victorian Government Department of Natural Resources, July 2006. The Victorian Department of Environment, Land, Water and Planning uses the water supply protection area plans to give statutory effect to Streamflow Management Plans, which share water between consumptive uses and the environment on ‘un-regulated’ streams: see the website of the Goulburn-Murray Water Authority: and follow links to ‘Policy and water Reform’ and ‘Water management plans’. NWI para 39 and Schedule E, para 6.

66. 67.

68.

NWI para 52(i). Paragraph 52(ii), regarding the incorporation of Indigenous objectives in water plans, is more an issue of content. This and the effect of NWI paras 53 and 54, regarding the allocation of water to the holders of native title, are discussed in relation to native title rights to water (chapter 13) and the content of a plan (chapter 16). Water Management Act 2000 (NSW) ss 14 and 15; Natural Resources Management Act 2004 (SA) ss 29(1) and 76(1); Water Act 1989 (Vic) ss 29 and 318.

69. 70.

Water Management Act 2000 (NSW) s 15(3); Water Act 1989 (Vic) s 31(2)(b). Water Management Act 2000 (NSW) s 50.

71. 72.

Water Act 2000 (Qld) ss 42–46. Water Management Act 1999 (Tas) ss 18 and 20.

73. 74.

Water Act 2007 (ACT) ss 13–15. Water Management Act 1999 (Tas) s 10 provides for the appointment of committees, but the Act gives them no explicit planning role. On the other hand, the Tasmanian Act provides for the establishment of water trusts in Part 10 and requires the Secretary to consult them as a ‘water entity’ in the preparation of a plan: s 20(2).

75.

The following discussion is adapted from A Gardner and K Bowmer, ‘Environmental Water Allocations and their Governance’ in K Hussey and S Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges, CSIRO Publishing, Clayton, 2007, p 46 ff. NWC, 2005 National Competition Policy Assessment of Water Reform Progress, April 2006, pp 2.10–2.23.

76. 77.

78.

Similar problems were foreseen in relation to the ‘macro’ planning process for the remaining water systems in New South Wales: NWC, 2005 National Competition Policy Assessment of Water Reform Progress, April 2006, p 2.27. Ibid, pp 2.18–2.24.

79.

Water Management Act 2000 (NSW) s 15(1).

80.

Water Management Act 2000 (NSW) s 15(2) and (3).

81.

See also discussion of similar cases in Payaneeandee v Minister for Immigation [2017] FCCA 861 at [33]–[34]. G Bates, Environmental Law in Australia, 9th edn, LexisNexis Butterworths, Sydney, 2016, especially pp 11.86–11.90; T MacLennan and A Gardner, ‘The Adequacy of Information for Environmental Decision-Making’ (1997) 4 Australian Environmental Law News 36.

82.

83. 84.

See also Hunters Hill Council v Minister for Local Government [2016] NSWLEC 124. Water Management Act 2000 (NSW) s 36; Water Act 2000 (Qld) ss 44 and 46; Natural Resources Management Act 2004 (SA) s 79(1) and (1a); Water Management Act 1999 (Tas) ss 18 and 20(2). The South Australian provisions have been amended by the repeal of s 78, which required preparation of a ‘concept plan’.

85. 86.

Water Management Act 1999 (Tas) s 23. Water Management Act 2000 (NSW) ss 38 and 39; Water Act 2000 (Qld) s 46; Natural Resources Management Act 2004 (SA) s 79; Water Management Act 1999 (Tas) ss 24 and 25.

87.

88.

Water Management Act 2000 (NSW) ss 37 and 38; Natural Resources Management Act 2004 (SA) s 79(7). The South Australian requirement is at the Minister’s discretion. Water Management Act 2000 (NSW) s 38(3). By s 34, ‘environmental protection provisions’ are defined to mean provisions that identify types of development that need to be controlled to protect water sources and propose certain controls on those developments.

89. 90.

Natural Resources Management Act 2004 (SA) s 79(9) and (13)–(15). Water Management Act 1999 (Tas) ss 26 and 27.

91.

Water Management Act 2000 (NSW) s 40; Water Act 2000 (Qld) s 45; Natural Resources Management Act 2004 (SA) s 79(16); Water Management Act 1999 (Tas) s 26. Water Act 2000 (Qld) s 49; Natural Resources Management Act 2004 (SA) s 79(16).

92. 93. 94.

Water Management Act 1999 (Tas) ss 27A and 3. Water Management Act 2000 (NSW) s 40(2); Natural Resources Management Act 2004 (SA) s 80(3) and (4).

95. 96.

Water Act 1989 (Vic) s 31. Water Management Act 2000 (NSW) s 36(3); Water Act 1989 (Vic) s 32A(10A).

97.

Water Management Act 2000 (NSW) s 13(1)(e); Natural Resources Management Act 2004 (SA) s 25(2) and (4). In South Australia, the appointment of Indigenous representatives is discretionary. Natural Resources Management Act 2004 (SA) s 76(2), (7) and (8).

98.

99. Natural Resources Management Act 2004 (SA) s 84(2). 100. Water Management Act 2000 (NSW) s 18. 101. Water Management Act 2000 (NSW) ss 37, 39 and 40. 102. Water Act 2000 (Qld) s 46.

103. R Creyke and J McMillan, Control of Government Action, LexisNexis Butterworths, Sydney, 2005, [7.4.4]. 104. Upper Namoi Water Users Association Inc v Minister for Natural Resources [2003] NSWLEC 175 at [20]. 105. This case was heard and decided together with Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165. 106. The exercise of the ministerial power to amend a plan in the public interest is discussed below at [15.80] ff. 107. This history is also recounted in Arnold v Minister Administering the Water Management Act 2000 [2013] NSWLEC 73 at [18]–[66] per Biscoe J. 108. The validity of this exercise was upheld in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [30]–[38]; (2005) 138 LGERA 11 at 23–25, discussed above at [15.21]. 109. E Cook, ‘Natural Justice: For Every Man and his Gog’ (2016) 23 AJ Admin L 102. 110. Water Management Act 2000 (NSW) s 41; Natural Resources Management Act 2004 (SA) s 80(7); Water Management Act 1999 (Tas) s 28; Water Act 1989 (Vic) s 32A(6); Water Resources Act 2007 (ACT) ss 12 and 15. 111. Water Act 1989 (Vic) s 32A(8)–(10); Water Resources Act 2007 (ACT) s 12(2). 112. Natural Resources Management Act 2004 (SA) s 80(8)–(16). 113. Water Act 2000 (Qld) ss 47 and 48. 114. Water Act 2000 (Qld) s 48(1) and Statutory Instruments Act 1992 (Qld) ss 49 and 50. 115. Water Management Act 2000 (NSW) ss 40(1) and 41 (the duty should be implied); Water Act 2000 (Qld) s 47(1); Natural Resources Management Act 2004 (SA) s 80(2); Water Management Act 1999 (Tas) ss 27A and 27B; Water Resources Act 2007 (ACT) s 15(1) (the duty should be implied). 116. Water Act 1989 (Vic) ss 32A(6) and 31(3). 117. Water Management Act 2000 (NSW) s 40(2); Natural Resources Management Act 2004 (SA) s 80(3) and (4). The Water Act 2000 (Qld) contains no such provision now. 118. Water Management Act 2000 (NSW) s 41(2). 119. Water Management Act 2000 (NSW) s 41; Water Act 2000 (Qld) s 48(2) and Statutory Instruments Act 1992 (Qld) s 47; Water Management Act 1999 (Tas) ss 29 and 30; Water Act 1989 (Vic) s 32A(7); Water Resources Act 2007 (ACT) s 12(2) and Legislation Act 2001 (ACT) s 61. This is not the case in South Australia. 120. Water Act 2000 (Qld) s 48(2) and Statutory Instruments Act 1992 (Qld) s 47; Natural Resources Management Act 2004 (SA) s 83; Water Management Act 1999 (Tas) s 33; Water Act 1989 (Vic) s 32H; Water Resources Act 2007 (ACT) s 12(2) and Legislation Act 2001 (ACT) ss 12 and 61; a similar provision for New South Wales is located in s 41(1)(b) and (3), which requires publication on the NSW Legislation website: . 121. Water Act 2000 (Qld) s 48(2). 122. Water Act 2000 (Qld) s 47(3); Water Act 1989 (Vic) s 32A(7).

123. Natural Resources Management Act 2004 (SA) s 80(6); Water Resources Act 2007 (ACT) s 15. 124. CoAG meeting, February 1994, Communiqué, Attachment A, Compendium of National Competition Policy Agreements, 2nd edn, June 1998, p 103, available at the website of the National Competition Council relating to National Competition Policy: . 125. Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995; see discussion to principles 7 and 1. 126. The National Principles for the Provision of Water for Ecosystems, published by the Sustainable Land and Water Resources Management Committee of ARMCANZ and ANZECC, Occasional Paper no 3, July 1996, p 10. 127. Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management, Water Allocations and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995, p 10. 128. NWI paras 80–89. See also M Vardon, M Lenzen, S Peevor, M Creaser, ‘Water Accounting in Australia’ (2007) 61 Ecological Economics 650. 129. Water Management Act 2000 (NSW) ss 84–85. Water allocation accounts are to be maintained in accordance with the Water Management (General) Regulation 2004 (NSW) reg 15. There may also be pertinent licence conditions that require licence holders to report to the Minister the quantity of water taken from an approved water supply works, which conditions may be imposed under management plans: ss 20(2)(e), 21(c) and 66(1). 130. NSW Government, Department of Primary Industries, Office of Water, and follow link to ‘Real-time data’. 131. Ibid. 132. Ibid, and follow links to ‘Water management’, ‘Monitoring’, and ‘Valley progress reports’. 133. The Natural Resources Commission is established under the Natural Resources Commission Act 2003 (NSW) to advise the government on natural resources management, including by conducting audits of management plans (for example, water sharing plans) and local strategic plans under the Local Land Services Act 2013 (NSW). 134. NSW Government, Natural Resources Commission, ‘Review of Water Sharing Plans due to Expire in 2017 or 2018’, April 2016, p 6. 135. The provisions for water allocations plans, which are a part of a regional NRM plan, do not mention monitoring. 136. Water Act 1989 (Vic) Part 3, Div 1C. 137. Australian Capital Territory, Water Resources Environmental Flow Guidelines 2013, Disallowable Instrument DI2013-44. 138. NWI Schedule E, Guidelines for Water Plans and Planning Processes, paras 3 and 4. 139. Water Management Act 2000 (NSW) s 43.

140. Water Management Act 2000 (NSW) s 43A. The Natural Resources Commission is established under the Natural Resources Commission Act 2003 (NSW). Section 43A also prescribes a process of public consultation for the review. 141. Water Management Act 2000 (NSW) s 43A(6). 142. Water Act 2000 (Qld) s 53. The Statutory Instruments Act 1992 (Qld) s 54 does not apply. 143. Water Act 2000 (Qld) s 50. 144. Natural Resources Management Act 2004 (SA) s 81. 145. Water Management Act 1999 (Tas) s 34(1), (1A) and (2). 146. Water Act 1989 (Vic) s 32G. 147. Section 45 substituted by Act no 39 of 2004, Sch 1 [17]. 148. Water Management Act 2000 (NSW) ss 42(3), 45(8) and Sch 12. Note that the crossreference in s 45(8) to s 42(2) appears to be mistaken and should be to s 42(3). 149. This case is considered above at [15.49] in relation to the argument that the Minister owed a duty of procedural fairness. 150. Natural Resources Management Act 2004 (SA) s 81. 151. It is not clear from the words of s 32G(3) whether the consultative committee is to have responsibility for preparing the amendment. 152. Legislation Act 2001 (ACT) s 46(1). 153. Water Act 2007 (Cth) s 33(1); Basin Plan 1.04(1) and 6.04(1). 154. Water Act 2007 (Cth) s 18E and MDB Agreement cl 29. See also Australian Government, Murray-Darling Basin Authority website: , and follow links to ‘Basin Plan roll-out’, ‘Sustainable diversion limits’, ‘Cap to SDL transition’. 155. MDB Agreement 1992, cll 6(b) and 9(d) and Murray-Darling Basin Act 1993 (Cth) s 17 and the equivalent provisions of the participating states; for example s 31 of the Murray-Darling Basin Act 1992 (NSW). 156. See, for example, Acts Interpretation Act 1901 (Cth) s 46B(1). 157. For example, see Interpretation Act 1987 (NSW) ss 21 (definition of ‘statutory rule’) and 40–41 (tabling of notice and disallowance of statutory rules). 158. MDB Agreement 1992, cl 50(1)(e), (6) and (7). 159. MDB Agreement 1992, cl 14. 160. MDB Agreement 1992, cl 135. 161. Murray-Darling Basin Ministerial Council, Setting the Cap: Report of the Independent Audit Group, November 1996. 162. Murray-Darling Basin Ministerial Council, Review of the Operation of the Cap: Overview Report of the Murray-Darling Basin Commission, August 2000, p 1. 163. MDB Agreement 1992, cl 12(3). 164. MDB Agreement 1992, cl 7. 165. Water Act 2007 (Cth) s 18C; Legislative Instruments Act 2003 (Cth); MDB Agreement 2008 cl 5.

166. Water Act 2007 (Cth) Part 2, Division 1, Subdivision E: ‘Procedure for making Basin Plan’. All subsequent references in this section are to the Commonwealth Act, unless otherwise indicated. 167. Water Act 2007 (Cth); Basin Plan 2012; Federal Register of Legislation, Legislative Instrument, F2012L02240; made 22 November 2012, registered 23 November 2012. Chapter 7 has been amended by the Water Amendment Act 2015 (Cth) and the Water Legislation Amendment (Sustainable Diversion Limit Adjustment) Act 2016 (Cth). As at 10 November 2017, the MDBA has recommended amendments to the Basin Plan to the Minister. For details, see and follow link to ‘Proposed Basin Plan amendments’. 168. Australian Government, Murray-Darling Basin Authority: and follow link to ‘Basin Plan roll-out’. The Commonwealth and the states made the ‘Intergovernmental Agreement on Implementing Water Reform in the MurrayDarling Basin’ in June 2013. 169. Water Act 2007 (Cth) s 63(9) says that regulations may provide for the timing and process for accreditation of state water resource plans, but none seem yet to be made. 170. T Bonyhady, ‘Putting the Environment First’ (2012) 29 EPLJ 316 at 321–327; A Gardner, ‘Water Reform and the Federal System’, Chapter 15 in P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation, Federation Press, Leichhardt, 2012, pp 284–289. 171. 25 January 2007 was the date on which the National Plan for Water Security was announced: see chapter 3 at [3.17]. 172. The Intergovernmental Agreement on Implementing Water Reform in the Murray Darling Basin 2013, cl 10, notes on the ‘Transition path to 2019’ that the states will extend the operation of the transitional and interim Water Resources Plans until 2019 and the Commonwealth will endeavor to make a regulation to protect state Water Resource Plans from any inconsistency with the Basin Plan. 173. The Committees are established under Water Act 2007 (Cth) ss 201 and 202. 174. The MDBA is also to consult the Ministerial Council on amendments to the Basin Plan: s 47A. 175. Water Act 2007 (Cth) ss 33, 57 and 63(7). 176. These must be stated in the Basin Plan by virtue of s 22(1), item 4, and address environmental outcomes, water quality and salinity, long-term average sustainable diversion limits, and trading in water access rights. 177. Water Amendment (Review Implementation and Other Measures) Act 2016 (Cth) Sch 1, cl 1, which does not take effect until 1 January 2020. 178. See above at [15.62]–[15.72]. 179. See above at [15.12]–[15.13]. 180. Water Act 2007 (Cth) Part 11. 181. Parliament of Australia, House of Representatives, Hansard, Second Reading Speech on the Water Amendment Bill 2008, 25 September 2008, p 8660. 182. Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Act 2012 (Cth), assented to on 21 November 2012, especially amending ss 22 and

23 and inserting ss 23A and 23B. See also A Foerster, ‘The Murray-Darling Basin Plan 2012: An Environmentally Sustainable Level of Trade-off?’ (2013) 16 Australasian Journal of Natural Resources Law and Policy 41 at 54–59. 183. This fiscal prioritisation was made even though it was argued repeatedly that expenditure on buybacks was more economical in the cost of returning water to the environment than publicly subsidised expenditure on water infrastructure efficiency: Australian Parliament, Senate, Rural and Regional Affairs and Transport References Committee, ‘Management of the Murray-Darling Basin’, October 2012, p 45. 184. Australian Parliament, Minister for Sustainability, Environment, Water, Population and Communities, Second Reading Speech on Water Amendment (Long-term Average Sustainable Diversion Limit Adjustment) Bill 2012 (Cth), House of Representatives, Hansard, 20 September 2012, p 11363. 185. The original Basin Plan dates were deferred by amending the Basin Plan through the enactment of the Water Legislation Amendment (Sustainable Diversion Limit Adjustment) Act 2016 (Cth) Sch 1. 186. A Foerster, ‘The Murray-Darling Basin Plan 2012: An Environmentally Sustainable Level of Trade-off?’ (2013) 16 Australasian Journal of Natural Resources Law and Policy 41 at 57.

[page 367]

16 THE CONTENT OF A PLAN 16.1 Water resource plans may make provision for the management of various issues — water resource allocation (water sharing), water use, water supply works, drainage, flood management and protection of water quality. Consistently with the focus of this Part, this chapter will consider directly only the content of plans for allocating or sharing water resources. 16.2 Chapter 14 gave an overview of the purposes of water allocation plans; namely, defining the limits for the ecologically sustainable development of water resources and providing a legally secure foundation for the water property rights regime that facilitates the establishment of a market in water resource access rights. This chapter will explain more specifically what each jurisdiction, including the Commonwealth, has enacted for the content of plans in light of the policy guidance of the NWI. To do this, the chapter: 1.

2.

gives an overview of the state statutory provisions and identifies the mandatory and optional content of their water allocation plans; analyses the state statutory provisions that pertain to certain key issues; namely, environmental water allocations, basic rights, including native title, allocating water to ‘consumptive use’, and

3.

assigning risk for changes in allocation and climate variability; and reviews the legislation for the content of Commonwealthlevel plans, discussing both the operation of the MurrayDarling Basin Cap and the Murray-Darling Basin Plan under the Water Act 2007 (Cth).

16.3 Water allocation planning is a key focus of the 2004 Intergovernmental Agreement on a National Water Initiative (‘NWI’),1 which shows in several of its objectives in para 23; namely:2 (i) clear and nationally-compatible characteristics for secure water access entitlements; (ii) transparent, statutory-based water planning; (iii) statutory provision for environmental and other public benefit outcomes, …; [page 368] (iv) complete the return of all currently overallocated or overused systems to environmentally-sustainable levels of extraction; (v) progressive removal of barriers to trade in water …; and (vi) clarity around the assignment of risk arising from future changes in the availability of water for the consumptive pool. The focus of these objectives is replicated in the NWI para 37 statement that water planning by the states will provide for: (i) secure ecological outcomes by describing the environmental and other public benefit outcomes for water systems and defining the appropriate water management arrangements to achieve those outcomes; and

(ii) resource security outcomes by determining the shares in the consumptive pool and the rules to allocate water during the life of the plan.3 NWI Schedule E provides guidance on the content of water plans to be prepared by the states. There are also numerous other NWI provisions that provide more detailed guidance on issues identified in Schedule E and on various other key issues of water resource management. The policy guidance of these provisions will be noted in their relevant context below.

Overview of state water allocation plans and their mandatory/optional content 16.4 We begin with a summary of what the NWI Schedule E suggests for the content of plans and then give an overview of what the state legislation prescribes; ascertaining, in particular, what content is mandatory and what is optional. NWI Schedule E gives a summary overview of what is to be the content of water plans to be prepared by the states, though the states are to determine the level of detail required.4 The components of a plan should, in brief summary, include:5 a description of the water resource covered by the plan, their condition and the risks to them and to the allocation of water for consumptive use under the plan; the objectives of allocation policies and the knowledge base for them, including provision for the improvement of that knowledge; the uses and users of the water including indigenous users, the environmental and other public benefit outcomes and the management arrangements to meet them; the terms and conditions of water access entitlements and approvals, including:

— —

the estimated reliability of access entitlements, how the consumptive pool is to be allocated between different categories of access entitlements, [page 369]

—

requirements for minimising impacts on third parties and the environment, and — requirements for monitoring and reporting on the activities undertaken; the quantity of water that may be taken from the water sources in the area and the rates, times and circumstances under which that water may be taken; and pathways to correct any over-allocation and over-use of the water sources.6 Each state’s legislation provides for the content of plans, distinguishing those elements that are mandatory and those that may be treated as optional. Each state’s legislation is very different.

New South Wales 16.5 All plans, including water sharing plans, are required to adopt a format specified by the Water Management Act 2000 (NSW) s 35(1) with the following components:7 (a) (b) (c) (d)

a vision statement; objectives consistent with the vision statement; strategies for reaching those objectives; performance indicators to measure the success of those strategies.

Curiously, the Act does not require a plan to contain a description of the water resources, their condition or the risks

potentially affecting water allocations under them, so one may ask what is the baseline information against which the information from the monitoring program will be evaluated. 16.6 The Act, s 20(1), requires a water sharing plan specifically to deal with: (a) the rules for environmental water allocations; (b) the requirements for water to satisfy ‘basic landholder rights’;8 (c) the requirements for water for extraction under access licences; (d) access licence dealing rules (ie rules for trading water held under access licences); and (e) having regard to (a)–(d), the establishment of a ‘bulk access regime’ for the extraction of water under access licences. The Act rather unhelpfully defines ‘bulk access regime’ to mean ‘a bulk access regime established by a management plan’.9 In essence, a bulk access regime defines the consumptive pool of the water resource(s) that will be managed under the plan by access licence authorisation. The Act also specifies the mandatory and optional content for a [page 370] bulk access regime (s 20(2)), and these are discussed below in relation to the allocation of water to consumptive uses: at [16.64] ff. 16.7 There are numerous items that may, at the option of the Minister, be included in a water sharing plan. Some of these items are generic to all types of water management plans, such as provisions with respect to monitoring and reporting requirements that may be imposed on water access licensees, provisions for

mandatory conditions, and provisions indicating the aspects of the management plan that may be amended by the Minister during the life of the plan (s 17). Other optional elements of a water plan are specific to a water sharing plan, and include the provisions for the operation of water accounts (s 21). The optional content of the plan also includes the amounts, rates, times and circumstances under which water may be taken from any water source in the plan area. This means that the Minister may, but is not required to, set limits on the exercise of basic rights within the plan area. The Minister may also establish a program (reviewable annually) for implementing a management plan (s 51). While the Act does not give prominence to these programs, it has been suggested that they are practically very important for actually achieving the implementation of the general terms of a water sharing plan.10

Queensland 16.8 The Water Act 2000 (Qld), as amended in 2016,11 uses two forms of plan to manage water allocation issues; namely, water plans and water management protocols. This is a notable change from the initial Water Act Chapter 2 planning framework of ‘water resource plans’ and ‘resource operations plans’, which was described in the first edition of this book12 in chapter 16 at [16.8] ff. The other notable change that has occurred in the planning framework since the first edition is the specific exclusion from the scope of that Chapter 2 framework of the petroleum and mineral sectors, and the expansion of separate statutory regimes for those sectors’ ‘associated water’ operations; that is, the extraction and disposal of water in the course of the petroleum or mineral extraction operations otherwise than for the purpose of using the water in those operations. The associated water regimes are based on the enactment of underground water rights under the resource and environmental legislation and underground water obligations

[page 371] imposed by the Water Act Chapters 3 and 3A. This chapter 16 will review the Water Act Chapter 2 planning framework, and chapter 27 (available online: see p 675) will review the separate resource sectors’ regimes. 16.9 The Water Act says that a water plan ‘applies to a part of the State and advances the sustainable management of Queensland’s water’ (s 41), which is one of the four ‘main purposes of the Act’ (s 2(1)). The term ‘sustainable management’ is defined in s 2(2) in a way that serves to define the purposes of water plans: see chapter 4 at [4.7]. The mandatory and additional or optional content of a water plan is then spelt out in non-purposive terms (s 43). There are just five items of mandatory content, relating to: the water to which the plan applies; the plan outcomes; the volume of unallocated water; the provision of environmental flows; and the provisions for trading and security of water allocations, if the plan provides for ‘water allocations’.13 Numerous items are listed for the optional content of a water plan; they focus on the measures and strategies for achieving the plan outcomes, the limits on taking or interfering with water in the plan area, including where such actions do not require a ‘water entitlement’,14 and the process and criteria for administering water entitlements (s 43(2)). 16.10 The optional content of a water plan also includes stating whether a ‘water management protocol’ is to be prepared for the plan area (s 43(2)(l)). This is a new instrument under the 2016 reforms that seems to have replaced the former ‘resource operations plan’, which was the instrument for converting licences (the old form of water entitlement) to water allocations

(the NWI share entitlement). A protocol may provide for the management of unallocated water, water allocation dealing rules, the rules for administering seasonal water assignments,15 and anything else the Chief Executive considers necessary to implement the water plan (s 67). The 2016 reforms also introduced provisions for the making of a ‘water entitlement notice’, which may be employed in numerous ways to implement a water plan, including for the purpose of converting a water licence to a water allocation (s 70). The Water Act also provides for the making of a ‘water use plan’ to regulate water use (ss 57–59) ‘if there is a risk of land and water degradation’ (s 58). [page 372]

South Australia 16.11 The Natural Resources Management Act 2004 (SA) provides separately for the preparation of water allocation plans,16 even though they are taken to form part of a regional natural resources management plan and should be consistent with the other parts of the regional plan. The Act requires a water allocation plan to: assess the quantity and quality of water needed by dependent ecosystems and whether the taking or use of water from the resource will have a detrimental effect on the quantity or quality of water available from any other water resource; assess the capacity of the water resource to meet environmental water requirements; and state the characteristics of water to be set aside for those requirements, and the environmental outcomes to be delivered by provision of that water; determine, or provide a means of determining, a consumptive pool or pools;17 set out the principles for determining water access entitlements and for the taking and use of water,18 taking into account present

and future needs of the occupiers of land in relation to their existing requirements and the future capacity of the land; assess the capacity of the resource to meet the demands for water and provide for monitoring of this capacity; identify and assess the methods for the conservation, use and management of water in an efficient and sustainable manner; identify the matters to be considered by a relevant authority considering the grant of a works permit or a regional National Resource Management (‘NRM’) board allocating water under the plan; identify any changes that may be considered necessary or desirable to be made to other statutory instruments; and include such other information or material contemplated by the Act or required by regulations. 16.12 In addition, a water allocation plan may include various provisions that: constitute two or more consumptive pools with respect to a particular part of a water resource and assign purposes to them; define the basis on which a water access entitlement is expressed; provide for appropriate policies and principles for regulating transfers and other dealings with water with ‘water management authorisations’ or ‘water access entitlements’; and [page 373] provide an assessment of the hydrological impact of a commercial forests and the policies to apply for making a water allocation under Chapter 7, Part 5A, to such commercial forestry. Also, where the taking or use of water from a water resource has or is likely to have a detrimental effect on the quantity or quality of water available from another water resource, the plan may include provisions to prevent or reduce those detrimental effects.

Likewise, the water allocation plan for the second-mentioned water resource may include provisions relating to the taking and use of water from the first-mentioned resource.

Tasmania 16.13 The Water Management Act 1999 (Tas) provides for a mandatory and optional content of a plan. A plan must include (s 14(2)): (a) a statement of the objectives of the plan, including the environmental objectives; and (b) a description of the water regime that best gives effect to the environmental objectives and other relevant objectives of the plan; and (c) an assessment of the ability of that water regime to achieve the … objectives; and (d) an assessment of likely detrimental effects of the plan on the quality of water.

The Act defines ‘water regime’ to mean pattern of flow of a watercourse, fluctuation in the level of a lake, or pattern or flow or fluctuation in the level of ground water (s 3). A plan may provide for (s 14(3)): the allocation and use of water; the licensing of persons taking water; the transfer of, and other dealings with, water allocations, including the imposition of conditions under which such transfers or dealings may take place; and the administrative implementation of the plan, including the specification of the water entity responsible for administration of the plan and the date it will take effect. 16.14 If the plan provides for the allocation and use of water, it must include an assessment of the capacity of the resource to meet the likely demands for water by existing and future users (s 15). Further, where the taking, or taking and use, of water from a water resource may have a detrimental effect on the quantity or quality

of water available from another water resource, the plan for the first resource must be made taking into account the needs of the persons and ecosystems using the other water resource and may, to achieve an equitable balance between the competing interests, include provisions to prevent or reduce any such detrimental effect (s 17). Also, the plan for the second water resource may include provisions relating to the taking or use of water from the first-mentioned water resource. The Act makes no express provision for a plan to determine a consumptive pool, though it is possible that plan provisions for the allocation and licensing of the taking of water could be founded on this concept. [page 374] Neither does the Act make any express provision for a plan to specify requirements for a program of monitoring and reporting on the implementation of the plan. However, such requirements could be included in a plan as an aspect of its administration.

Victoria 16.15 The relevant Victorian provisions to consider are those relating to management plans for water supply protection areas: Water Act 1989 (Vic) Pt 3, Div 3, s 32A.19 The object of such a management plan is ‘to make sure that the water resources of the relevant water supply protection area are managed in an equitable manner and so as to ensure the long-term sustainability of those resources’ (s 32A(1)). It is very unlikely, though, that this statement of objective would constitute the foundation for a judicial determination of the validity of a plan on the basis of whether or not it does, in fact, provide for the long-term sustainability of the use of the water resources. It must also be remembered that water planning in Victoria is undertaken through other instruments; namely, ‘bulk entitlements’ conferred

on water authorities (Part 4, Div 1), ‘environmental entitlements’ allocated to the Victorian Environmental Water Holder (Parts 3AA and 4, Div 1A), and by the declaration of a ‘permissible consumptive volume’ for an area or water system (s 22A). The focus here is on management plans. 16.16 There is only one component of a management plan mandated by the Act: it must name the Authority that is to administer and enforce the approved plan (s 32A(5)). Otherwise, the entire content of a management plan is at the Minister’s discretion and may include, for instance: requirements for metering, monitoring and accounting — though the Act does not make clear whether the plan requirements are applicable to Water Authorities or water access rights holders such as the holders of licences or ‘shares’, or both; requirements to notify the relevant Water Authority of the taking of ground water from any specified bore or group of bores for domestic and stock purposes; requirements for the location, capacity and operation of private dams that are used for irrigation but are not licensed; restrictions or prohibitions on the issue of licences to take water or construct works to take water; restrictions to be imposed on the taking of ground water or surface water; restrictions to be imposed on the supply of ground water by an Authority; conditions to be imposed, presumably on the bulk entitlement of an Authority or a licence, relating to the protection of the environment and the maintenance of the environmental water reserve; conditions relating to the payment for the amount of ground water taken in exercise of domestic and stock rights; conditions to which licences to take water are to be subject; conditions to which licences to construct works are to be subject;

[page 375] conditions to which licences that are transferred are to be subject, including as to the maximum volume of water that may be taken under the transferred licence; and the maximum volume of water that may be retained in private dams. It is notable that the provisions for plan content do not require any description of the water resource at the commencement of the management plan. Nor is there a clear duty for a plan to provide a program for monitoring and reporting the implementation of the plan.20 16.17 It is not easy to ascertain from the legislation just how significant the management plan provisions are. A draft management plan may recommend to the Minister the total volume of water that should be declared to be the permissible consumptive volume (‘PCV’) for a particular area, but a PCV may be separately declared by the Minister without making a management plan (s 22A). Also, although the management plan provisions do not specify the definition of a consumptive pool, it seems that the provisions for restrictions on the taking of ground or surface water could operate to define a consumptive pool. This view is supported by the provisions for authorities to make ‘seasonal determinations’ of available water for water shares in accordance with a management plan (s 64GB(4)(b) and (6)(e)). Section 64GB seasonal determinations also apply to bulk entitlements and environmental entitlements. So, a consumptive pool can also be defined by the grant of a bulk entitlement to an Authority (Part 4, Divi 1). An environmental entitlement may be thought to be outside the concept of a consumptive pool, but it is also subject to seasonal determinations (s 64GB(1) and (3)) that may be assigned for consumptive use (ss 48L and 48M). These provisions for seasonal determinations illustrate that there are

various instruments for water allocation planning that may be used in different contexts, and no simple and coherent water allocation planning instrument that applies comprehensively to the allocation of all water resources. That said, the grant of a bulk entitlement must be consistent with any applicable PCV or management plan (s 40(1)(ba) and (2)), though there appears to be no parallel requirement for the making of an environmental entitlement (ss 48C–48G and 48OF). The Minister has a separate rule making power for environmental entitlements (s 48P) and the Environmental Water Holder has separate planning powers (ss 33DV–33DZ). The facility to make ‘sustainable water strategies’ may guide the application of the various water allocation planning instruments, but does not itself have the legal effect of water allocation planning (Part 3, Div 1B).

Australian Capital Territory 16.18 The Water Resources Act 2007 (ACT) has excluded the reference of the former Water Resources Act 1998 (ACT) to a water resources management plan. In its place, the Australian Capital Territory Act now includes just four types of planning instruments that establish the essential elements of a water management plan: environmental flow guidelines that the Minister may approve for determining the flow of water that is needed to maintain aquatic ecosystems (Part 3); [page 376] water management areas that the Minister must determine for the water resources of the territory (s 16); amounts of water available for taking in each water management area, which the Minister must determine taking into account the environmental flow guidelines (s 17); and guidelines that the Minister may approve for determining the

amounts of water that are reasonable for particular uses (s 18).

Key issues for state planning 16.19 The variation in the state legislation gives little assistance in defining the key issues for water allocation planning. However, the NWI elaborates on issues identified in Schedule E and provides guidance on the key issues for state water allocation planning; namely: environmental water allocations; basic rights, including native title; allocating water to consumptive use under access entitlements, particularly: — defining the ‘consumptive pool’, — periodic allocations to entitlement holders, — dealing with over-allocation and over-use, — accounting for interceptions from changes of land use involving plantation forestry; and assigning risks for future reductions in water availability, especially in light of climate change. There are other important issues that water allocation plans may deal with, such as programs for water accounting, monitoring and reporting, and rules for water trading. The statutory provisions for water accounting are discussed in chapter 21 at [21.9] ff, while those for monitoring and reporting are discussed in chapter 15 at [15.101] ff. The statutory guidance that water allocation plans may provide for water trading is considered in chapter 25.

Environmental water allocations 16.20

The two central objectives of the NWI in relation to

environmental water allocations are set out in para 23: (iii) statutory provision for environmental and other public benefit outcomes …; (iv) complete the return of all currently overallocated or overused systems to environmentally-sustainable levels of extraction.

While the implementation of these two objectives is related, we will discuss the first objective here and the second objective at [16.80]–[16.104] under the heading, ‘Dealing with over-allocation and over-use’. [page 377] 16.21 In relation to the first objective, the NWI defines the components of the italicised term as follows:21 environmental outcomes: maintaining ecosystem function … biodiversity, water quality; river health targets; other public benefits: mitigating pollution, public health …, indigenous and cultural values, recreation, fisheries, tourism, navigation and amenity values. We acknowledge the distinction between these two components, but seek to address provision of water for both the environment and for other in-stream uses that are of public benefit by the use of the term ‘environmental water allocation’ (‘EWA’).22 16.22 To give effect to this first objective, the NWI provides that an EWA defined in a water plan is to:23 (i) be given statutory recognition with at least the same degree of security as water access entitlements for consumptive use and be fully accounted for; (ii) be defined as the water management arrangements [under plan rules] … or held as a water access entitlement; and (iii) if held as a water access entitlement, may be available to be traded … on the temporary market [if that is consistent with the defined outcomes].

The discussion here will focus on the provision of statutory recognition of EWAs through plan rules and the adaptation of water access entitlements to environmental water allocation purposes. 16.23 The legal duty to make a plan is discussed in chapter 15 at [15.14] ff. Our discussion here focuses more on nature of the duty to make an EWA when making a plan, and addresses three specific legal questions about the effect of statutory provisions for EWAs; namely, is there a legal duty: to make an EWA; to make it at a certain level; and to make it in priority to the allocation and delivery of water to consumptive purposes? No state maintains legislation to this effect for every water source in the state. However, New South Wales experimented with, and resiled from, a statutory duty on the Minister to make EWAs to maintain fundamental ecosystem health in priority to allocating water for consumptive uses. Two states (New South Wales and Victoria) issue environmental water entitlements, while other states (for example, Queensland) do not. [page 378]

New South Wales24 16.24 A water sharing management plan, including a Minister’s plan (s 50(2)), must establish environmental water rules creating an EWA for the area or water source. Although the defined content of these rules has been amended a number of times, the legislation has always provided for environmental water that is provided for in plan rules and water that is committed for environmental purposes under access licences (s 8). As originally

enacted, the environmental water rules were required to include ‘water that is committed for fundamental ecosystem health at all times, and may not be taken or used for other purposes’, which was called ‘environmental health water’.25 After amendment in 2004, the environmental water rules under a management plan were required to commit water for ‘fundamental ecosystem health or other specified environmental purposes … that cannot to the extent committed be taken or used for any other purpose’, which is called ‘planned environmental water’.26 Since amendment in 2005,27 planned environmental water must be committed in at least two ways from three possible ways: (a) by commitment of the physical presence of water in the water source; (b) by reference to a long-term annual commitment; or (c) by reference to residual water after allocations to basic landholder rights and any other types of extraction rights (s 8(1A)). There is no requirement that a plan provide for the physical presence of water in the water source at all times (s 8(2)). 16.25 Licensed environmental water is committed to environmental purposes under access licences, primarily by the inclusion of mandatory ‘adaptive environmental water’ conditions that further the objectives of the relevant water management plan (ss 8(1)(b) and 8E). The inclusion of the licence conditions may occur by either the licence holder requesting that the Minister impose the condition on the whole or part of the access licence (s 8B), or the Minister granting an access licence for water that has been saved through system improvements (s 8C), or the access licence holder surrendering the licence to the Minister (s 8D). These licences can be held by the Local Land Services or another public body and can be traded (s 8E(9)). The long-term extraction limit under the water management plan is to be varied by the amount of water committed as licensed environmental water, and the water applied under the licences is not to be accounted as ‘extraction’ (s 8F). 16.26

After the 2004 amendments but before the 2005

amendments, it was still arguable that an EWA for planned environmental water had to be set in priority to the allocation of water to consumptive purposes and that it would limit the water [page 379] available for human consumptive uses under a bulk access regime. The basis of this argument was the statutory requirement that a bulk access regime ‘must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates’ (s 20(2)(a)). Further, a bulk access regime was to be consistent with the water management principles of the Act (s 20(2)(f)), which included, in s 5(3), the water sharing principles that: (a) sharing of water from a water source must protect the water source and its dependent ecosystems, and … (c) sharing or extraction of water under any other right must not prejudice the principles set out in [para] (a) …

All persons exercising functions under the Act had, and still have, a duty, under s 9, ‘to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of the Act’, and to give priority to the water sharing principles in the order in which they are stated in s 5(3). This duty would apply to the Minister making a water sharing management plan. 16.27 What was the legal force of these statutory provisions? The New South Wales Court of Appeal held in 2005 that they do not have the purpose of making invalid a management plan that was inconsistent with them: Nature Conservation Council of NSW Inc v The Minister Administering the Water Management Act 2000 (Gwydir River case) (2005) 137 LGERA 320; [2005] NSWCA 9 at [90]–[95].28

In that case, the court found that the management plan was inconsistent with the original requirements of the Act because the plan established the EWA as the residue of water left after the identification of the ‘long-term extraction limit’ instead of setting the EWA first as required by the Act. The court rejected the Minister’s argument that the Act did not require the identification of any actual volume of water, and that an ‘abstract concept’ of water available for fundamental ecosystem health would suffice. The court said at [65]–[66]: The idea of ‘commitment’ is quite inconsistent with any abstract or theoretical concept of water. What must be identified is actual water. The words ‘establish’ and ‘maintain’ are not suggestive of anything other than actual water. What is required is water that is constantly provided for and which, absent acute drought conditions, will in fact be available to protect ‘fundamental ecosystem health’. To the extent water is present at all, priority is to be given to fundamental ecosystem health.

Having found that the plan was inconsistent with the original provisions of the Act, the court addressed the test of validity for a plan that was inconsistent with the Act’s requirements and whether this particular inconsistency spelt invalidity of the plan. [page 380] 16.28 The Court of Appeal applied the test of invalidity defined by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 to conclude that the parliament did not intend the particular inconsistency with the Act to result in invalidity of the management plan. In Project Blue Sky at 389, the High Court explained that this intention ‘is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition’. Courts are reluctant to hold that parliament intends an act done in breach of legislation to be invalid if serious public inconvenience

would result: Project Blue Sky at 392. The risk of public inconvenience here should not have been significant because a statutory time limit of three months in which to challenge a management plan ensured there would be no delay in addressing legal challenges (s 47). Moreover, the express statutory time limit acknowledges that parliament did anticipate judicial review of the validity of plans. Indeed, the Court of Appeal held that, on balance, the textual indications in the Act supported the view that the inconsistent provisions of the water management plan would be invalid. However, the court said (at [93]) that the ‘factual context of the water source, rather than the textual context of the legislative scheme’ was determinative in that case. The court noted at [94] that, as ‘the long term extraction of 388,000 mega litres [per annum] is only 56 per cent of the estimated long term average annual flow of 875,000 mega litres’,29 there was still a substantial flow of water (44 per cent) committed to the EWA, which would, in substance, satisfy parliament’s intention for the EWA. The court appears to say that the plan under challenge was valid, but that another plan providing much less water for an EWA may be invalid. It is not clear on what basis the court made this assessment, as there is no discussion in the case about the adequacy of the level of the EWA.30 With respect, the Court of Appeal may have found too easily that the inconsistency of the plan with the Act did not result in its invalidity. 16.29 The High Court granted the Nature Conservation Council special leave to appeal the decision, but the appeal was subsequently terminated before it was heard: Nature Conservation Council NSW v Minister Administering Water Management Act [2005] HCA Trans 668, 2 September 2005. The central issues in the appeal would have been the priority to be given to determining the EWA and the application of the principles in Project Blue Sky. However, the Water Management Amendment Act 2005 (NSW)31 redefined environmental water and inserted a validating provision for management plans, leading to the termination of the appeal.32 Nevertheless, it is useful to review the

[page 381] amended statutory provisions for the future of EWAs in water management plans and the potential significance of Project Blue Sky. 16.30 The Gwydir River case shows that there was, under the original provisions of the Water Management Act 2000 (NSW), a tentative duty to make an EWA committing an actual volume of water for fundamental ecosystem health before determining the allocation of water for consumptive uses.33 However, it is doubtful that the current provisions of the Act still impose such a duty. As explained above at [16.26], the 2004 amendment redefined ‘environmental water’ to include ‘planned environmental water’, which is water committed under a management plan for ‘fundamental ecosystem health or other specified environmental purposes … that cannot to the extent committed be taken or used for any other purpose’.34 The rules for planned environmental water ‘do not need to specify that a minimum quantity of water is required to be present in the water source at all times’ (s 8(2)). 16.31 The 2005 amendments, enacted in response to the Gwydir River case, further weakened the concept of a priority determination of an EWA.35 As explained above at [16.24], a management plan must now commit planned environmental water by referring to at least two of the following: (a) the physical presence of water in the water source; (b) the long-term average annual commitment of water as planned environmental water; and (c) water that is not committed after allowing for commitments of water for extraction rights (s 8(1A)). Paragraph (c) of this amendment endorses the technique of providing for EWAs as a residue of water after allocation to

consumptive uses. Simultaneously, though, the management plan is required to specify environmental water either as an actual physical volume or an abstract concept of a long-term average annual commitment. The amendment’s authorisation of an EWA as a residue of water after allowing for commitments of water for consumptive uses is, arguably, inconsistent with the duty to observe the s 5(3) principle that ‘sharing of water from a water source must protect the water source and its dependent ecosystems’ in priority to the extraction of water under [page 382] any other right (ss 5(3)(a) and 9(1)(b)). However, the location of these duty propositions in association with the objects and principles of the Act may suggest that the courts would be reluctant to invalidate a water management plan on the basis that the EWA was determined as a residue of allocations to consumptive uses and at a level that may be argued is inadequate to sustain the water-dependent ecosystems: Project Blue Sky (1998) 194 CLR 355 at 391 at [95]. The conflicted scheme of the Act now favours executive discretion rather than statutory standards for the determination of EWAs. The only remnant statutory requirement is that a management plan must define an allocation of water for both environmental and consumptive purposes. 16.32 Where does this leave the operation of the principles in Project Blue Sky? The reasoning in that case leaves open the argument that, although an existing management plan may not be invalid for non-compliance with the statutory provisions, the non-compliant method of making the EWA could still be unlawful in the future. As the High Court said in Project Blue Sky (1998) 194 CLR 355 at 393, a person with sufficient interest would be entitled to sue for a declaration that the government body was acting in breach of the Act and, in an appropriate case, obtain an injunction

restraining that body from taking any further action based on its unlawful action. A court would be less reticent to restrain future administrative action, especially if it is the approval of a management plan that fails to define an allocation of water for both environmental and consumptive purposes. Indeed, the recent High Court decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; 91 ALJR 833 may suggest that such a fundamental proposition is a jurisdictional prerequisite for the making of a water sharing plan, and that failure to secure allocations to both purposes would be a jurisdicational error leading to invalidity of the plan. 16.33 In summary, in New South Wales, there are legal duties on the government to make water management plans for special water resources within a short period of time (now fulfilled) and for other water resources as soon as practicable.36 A plan must establish environmental water rules for planned environmental water that protects the water source and its dependent ecosystems, but may do this by defining an EWA, simultaneously, as a residue of water after allowing for commitments of water for consumptive uses and as either an actual physical volume or a long-term average annual commitment of environmental water. The judicial interpretation of the duties thus far suggests that it will be difficult to enforce these duties in proceedings that seek to invalidate a water management plan, but leave open the potential to enforce the duties prospectively. A plan must also provide for adaptive environmental water, but this does not require that there actually be access licences committed to an environmental purpose at any particular time. Further, one study of the Gwydir River Water Sharing Plan has concluded that: while there are general guarantees of superior legal status in the legislation, when the rules in the [Water Sharing Plan] are examined more closely in the context of their on the ground implementation, it is questionable whether the environmental water regime is granted any additional status … [that] actually translates through to management decisions.37

[page 383]

Queensland 16.34 The Water Act 2000 (Qld), as amended in 2014–2016, requires a water plan to ‘state the desired economic, social and environmental outcomes’ of the plan and to ‘state arrangements for providing water for the environment including the measures, strategies or objectives for environmental flows’ (s 43(1)(b) and (d)). Thus, there is a general duty to make an EWA. The Act says little more about the effect of EWAs. Some items of optional plan content may bear upon EWAs; for example, the measures and strategies for achieving the water plan outcomes, the limitations on taking or interfereing with water in the plan area, and the general discretion of the Minister to include anything that advances the sustainable management of water (s 43(2)(a), (b), (c) and (o)). The 2016 amendments introduced an extensive regulation-making power for the purposes of planning, so that numerous matters relating to water allocation that could be dealt with under plans have been provided for in the Water Regulations 2016 (Qld), though none of these regulations seem to relate directly to EWAs. Thus, while it appears mandatory to make an EWA, the Minister has a broad discretion as to the content and effect of the environmental flow arrangements under a water plan. 16.35 It may be arguable that there is a limitation on the breadth of that discretion from the Act’s general purposes provisions, especially on the question whether an EWA should be at a certain level and in priority to consumptive use allocations. Section 41 of the Water Act 2000 (Qld) provides that a water plan ‘advances the sustainable management of Queensland’s water’. The term ‘sustainable management’ is defined extensively in the objectives provisions of the Act as, for example, the allocation and use of water resouces ‘within limits that can be sustained indefinitely’, for ‘sustaining the health of ecosystems, water quality, water-

depenedent ecological processes and biological diversity’ and for recognising the interests of Aboriginal people and Torres Strait Islanders: see s 2(2)(b), (c) and (d); see also chapter 4 at [4.7] ff. Referring to that discussion, it is unlikely that a court of law would apply the broad statutory purposes of the Act as some form of measure of the legal adequacy of an EWA provision of a water resource plan.38 16.36 The former provisions requiring water plans to be consistent with the declaration of wild rivers are no longer in force, following the repeal of the wild rivers legislation in 2014– 2016. The Queensland Water Act 2000 also makes no provision for tradable environmental water entitlements; Queensland uses only plan rules to make EWAs.

South Australia 16.37 The Natural Resources Management Act 2004 (SA) requires a regional NRM board to prepare a water allocation plan for each of the prescribed water resources in its [page 384] region, and the plan must contain certain essential provisions for an EWA (s 76(1) and (4)(a), (aab) and (ab)).39 It must include (s 76(4)(a) and (aab)): an assessment of ecosystem dependence on the water resource (as to quantity, quality and timing of the water); an assessment of the effect of the taking and use of water from the resource on water quantity and quality; an assessment of the capacity of the water resource to meet environmental water requirements; information about how water will be set aside to do that; and a statement of the environmental outcomes expected to be

delivered by the provision of environmental water. The plan must also (s 76(4)): (ab) determine, or provide a mechanism for determining, from time to time, a consumptive pool, or consumptive pools, for the water resource’; and40 (b) set out principles associated with the determination of water access entitlements [shares in the consumptive pool or pools]41 and for the taking and use of water so that — (i) an equitable balance is achieved between environmental, social and economic needs for the water; and (ii) the rate of use of the water is sustainable.

Thus, a plan must contain an EWA with supporting information that assesses ecosystem needs and impacts of water extraction, plus information that states how environmental water will be provided and the expected environmental outcomes — all provisions directed to processes for determining an EWA. However, the Act also requires a plan to state the principles for achieving the Act’s substantive goals for water allocation — an equitable balance between environmental and other needs and a sustainable rate of take and use, though it is difficult to say that this will secure a certain level of water for the environment. It is likely that the concepts of ‘an equitable balance’ and a ‘sustainable’ rate of use of water would be interpreted in light of the objectives of the Act. 16.38 Those objectives are discussed in chapter 4 at [4.7]. The objectives of the Act are to ‘assist in the achievement of ecologically sustainable development in the State’ (s 7(1)), by promoting the use and management of natural resources in a manner that provides, among other things, ‘for the protection and management of catchments and the sustainable use of land and water resources and, insofar as is reasonably practicable, seeks to enhance and [page 385]

restore or rehabilitate land and water resources that have been degraded …’ (s 7(1)(c)).42 Uniquely, the Act’s objectives provisions give the concept of ‘ecologically sustainable development’ a substantive meaning; namely (s 7(2)), that the use, conservation and development of natural resources can be at a rate that will sustain the: economic, social and physical well-being while — … (b) safeguarding the life-supporting capacities of natural resources; and (c) avoiding, remedying or mitigating any adverse effects of activities on natural resources.

Furthermore, it is the duty of all persons administering the Act ‘to have regard to, and seek to further, the objects of this Act’ (s 8). Thus, it is arguable that the Minister has a duty, in making a water allocation plan with an EWA, to seek to safeguard the lifesupporting capacities of natural resources, which duty may guide the Minister in making an environmental water allocation that is supposed to be an equitable balance between environmental, social and economic needs for the water. However, as mentioned above in relation to the equivalent Queensland provisions, it is unlikely that a court of law would apply the statutory objectives as some form of measure of the legal adequacy of an EWA in a water allocation plan. 16.39 Neither is it likely that a court would hold that these provisions require an EWA to be made in priority to allocations to consumptive use. The language of ‘an equitable balance’ does not suggest that allocations of water to an EWA should be made in priority to allocations for consumptive use. In addition, a water allocation plan must, in providing for the allocation of water, ‘take into account the present and future needs of the occupiers of land in relation to the existing requirements and future capacity of the land and the likely effect of those provisions on the value of the land’ (s 76(4)(c)). On the other hand, it is clear that the Act does not condone the determination of present and future estimations

of consumptive use as a precursor to allocating a residual flow of water to an EWA. On the comparative authority of the New South Wales Court of Appeal decision in the Gwydir River case (2005) 137 LGERA 320; [2005] NSWCA 9,43 such an approach would be invalid, though the availability of a judicial review remedy would be subject to constraints on enforceability of the legislation outlined by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

Tasmania 16.40 As mentioned above at [16.13], the Water Management Act 1999 (Tas)44 provides that a water management plan must include three important features that relate to an EWA (s 14(2)): a statement of the plan’s objectives, including the environmental objectives; [page 386] a description of the water regime that best gives effect to the environmental objectives and other relevant objectives; and an assessment of the ability of that water regime to achieve the environmental and other objectives of the plan. A ‘water regime’ is the pattern of flow or level of water in a watercourse, lake or ground water aquifer (s 3). However, these provisions do not amount to the definite allocation of water to an EWA. The optional content of a plan may provide for the allocation and use of water having regard to the plan’s statement of objectives (s 14(3)). Such allocation provisions would, if made, include an EWA, but there appears to be no duty actually to make such allocations. This may be the case if there was little pressure for consumptive use of the water resource, but it may also mean

that no formal EWA is made until there is considerable use pressure on the resource. 16.41 Further, the plan provisions suggest no measure of what level of EWA should be provided. However, the Minister would be bound by the objectives provisions of the Act to exercise the power to make a plan so as ‘to further the objectives’, including the use and management of water resources having regard to the need to maintain ecological processes and genetic diversity for aquatic ecosystems (s 6(1)(c)).45 As mentioned above at [16.35], a court of law would not apply such objectives as a measure of the legal adequacy of an EWA. Neither do the Act’s provisions give priority to the determination of an EWA over the allocation of water for consumptive use. A water management plan may provide for the allocation of water ‘having regard to the objectives’ of the plan (s 14(3)(a)), but there is no duty to ensure that the environmental objectives are secured before allocations are made to consumptive use. In summary, the making, content and priority given to an EWA under a water management plan are at the discretion of the responsible Minister.

Victoria 16.42 Amendments to the Water Act 1989 (Vic) in the period 2005–2010 established an ‘environmental water reserve’ (s 4A)46 composed of environmental entitlements (s 48A ff) managed by the Victorian Environmental Water Holder (s 33DA ff) as the means of giving effect to the national water policy principle that EWAs should be given [page 387]

statutory recognition of at least the same degree of security as water access entitlements for consumptive use. The essential objective of the environmental water reserve is that it be maintained ‘so as to preserve the environmental values and health of water ecosystems’ (s 4B). As we shall see, there are a number of associated provisions that provide for the assessment of water resources and the creation of EWAs in various ways that ultimately make the content of the environmental water reserve a matter of executive discretion rather than statutory duty. Despite the statutory objective, the Act does not require that an EWA be determined and implemented at any particular level or in priority to the satisfaction of consumptive uses of water.47 16.43 The Act obliges the Minister to ensure that a continuous program of assessment of the state’s water resources is undertaken, including long-term water resources assessments every 15 years (ss 22(1)(a)–(ab) and 22K–22V). In conducting the long-term assessment, the Minister may investigate whether or not the environmental water reserve is being maintained in accordance with its objective. The Minister may also require the preparation of a ‘Sustainable Water Strategy’ for a region, the content of which may identify ways to maintain and improve the environmental water reserve (ss 22B and 22C). However, the Act leaves the allocation of the water resources to the environmental water reserve or for consumptive purposes to the exercise of ministerial discretion under various related powers, including powers that authorise the Minister to set aside water for the environment (ss 4A and 22(1)(b)). 16.44 The most significant of those powers is the authority of the Minister administering the Water Act to allocate to the Environmental Water Holder an environmental entitlement to water in a waterway, ground water resource, or in the works of an Authority or water entitlement holder, other than recycled water (Part 4, Div 1A: ‘Environmental Entitlements’, especially ss 48B and 48F).48 The power to issue an environmental entitlement may

be exercised on the Minister’s own motion or at the request of the Water Holder and is to be exercised having regard to the objectives of the environmental water reserve, a range of government policies, and any adverse effect that the allocation or use of water under the entitlement is likely to have on existing authorised uses of water. There are procedures for inquiry and public consultation (ss 48D–48E). The Minister may confer on catchment management authorities the responsibility for managing environmental entitlements (ss 186A and 189). 16.45 The second most significant power is the authority of the Minister to declare an area to be a water supply protection area (for ground water or surface water resources) (s 27), which triggers the preparation of a management plan for the area. The approval of a draft management plan is at the Minister’s discretion, though an approved plan must be tabled in parliament and is subject to disallowance by either house of parliament. The object of a management plan is to ensure that the water resources of the area are [page 388] managed ‘in an equitable manner and so as to ensure long-term sustainability of those resources’ (s 32A(1)). The main way in which a management plan may set aside water for the environment is that it may prescribe restrictions to be imposed on the taking of water to prevent decline of ground water levels below a specified level or to ensure that surface water flows are maintained at specified levels (s 32A(3)(f) and (g)). In other words, a management plan may set a cap or limit on abstractions of water for consumptive uses by specifying the amount of water to be retained in a water resource system. 16.46 There is also, arguably, a second way in which a management plan may set aside water for the environment;

namely, by imposing restrictions on the taking of ground or surface water to prevent a ‘permissible consumptive volume’ from being exceeded (s 32A(3) (f)(ii) and (g)(ii)). The Minister has the related power to declare a permissible consumptive volume of surface and/or ground water that may be taken from a specified area or water system during a specified period (s 22A). The permissible consumptive volume will cap or limit the amount of water that may be taken by all water entitlement holders who draw from the water resource. In this way, the plan may set aside water for the environment even though it does not specify the amount of water to be retained in the resource or allocated to the environment. There is a third provision by which a management plan may prescribe restrictions on the taking of ground or surface water ‘to ensure that the environmental water reserve is maintained in accordance with the environmental water reserve objective’ (s 32A(3)(f)(iii) and (g)(iii)). It is debatable whether this third plan mechanism amounts to another means of setting aside water for the environment or merely of ensuring the proper management of water otherwise set aside. The third method of setting aside water for the environment is by the operation of conditions on any bulk entitlement (issued to a Water Authority) or other water entitlement (s 4A(1)(b)(i) and Part 4, Divs 1 and 2). It is government policy gradually to convert bulk entitlement conditions that operate as EWAs into environmental entitlements.49 This is consistent with conferral of powers to trade both seasonal allocations to environmental entitlements and even environmental entitlements themselves. The Water Holder may, with ministerial approval, assign a seasonal water allocation of an environmental entitlement (ss 48L–48M and 48O) and the assignee may apply the annual allocation to any purpose (s 48BA). The Water Holder may also, with the consent of the Minister, transfer an environmental entitlement to another person or convert licences and water shares to environmental entitlements (ss 48OA–48OG). The Minister may make rules to guide these transactions (s 48P).

It is evident that, notwithstanding the statutory proclamation of an environmental water reserve and its objective, these Victorian provisions create no statutory duty to provide any EWA in a management area or any other part of the state. The Minister’s power to issue a environmental entitlements and seasonal allocations to those entitlements is entirely discretionary and exercised having regard to the competing considerations of existing water uses and the environmental water reserve objective. The management plan [page 389] statutory provisions appear, at best, to be neutral in the priority given to the allocation of water to EWAs or consumptive uses. A management plan is made in pursuit of a general sustainability goal and there is no statutory statement that a management plan must first provide for an EWA before providing for the allocation of water for consumptive uses. Restrictions that may be imposed by a management plan on the taking of water create an EWA that is only an incidental residue of the restrictions on consumptive use. Similarly, the setting aside of environmental water by means of conditions on water entitlements operates only as a residue of the consumptive uses allocated by the entitlement.

Western Australia 16.47 While the protection of water-dependent ecosystems is one of the objectives of the Rights in Water and Irrigation Act 1914 (WA) that administrators are ‘to seek to ensure are achieved’ (s 4(3)),50 it is juxtaposed with the competing goals of sustainable use and development51 to meet the needs of current and future users of water. The objects create only justiciable obligations of process; that is, an obligation on the part of administrators to consider the objects in their decision making, and not any substantive duty of environmental conservation.52 The state’s

Environmental Water Provisions Policy restates similar objectives without giving a policy commitment to the level or extent of EWAs.53 The Act clearly does not mandate EWAs either generally or in any particular location. The only express statutory mechanism in the Act for making EWAs is through the making of water management plans, provisions for which were inserted in 2001. Although plans have the purposes of defining the environmental values of water resources and determining how water is to be allocated to meet the needs of the environment, the making of plans is entirely within the discretion of the government (s 26GU). To date, none have been made. There are numerous non-statutory water management plans, which have since 1995 generally included EWAs. It is possible to make EWAs in three other ways: by setting licence conditions (Sch 1, cl 15, Appendix to the Schedule, items 2 and 9); pursuant to the environmental impact assessment provisions of the Environmental Protection Act 1986 (WA), by the imposition of ‘ministerial conditions’ on the issue of licences or the making of plans, even non-statutory plans;54 and [page 390] by making local by-laws specifying a whole range of matters applicable to water resources management in a particular locality, including a scheme for licensing with basic rules that allocate environmental water (ss 26L–26N). It is clear, however, that the statutory provisions for each of these three methods create no duty to make EWAs in any place or at any level. Western Australia has failed to implement its

environmental water promises, especially under the NWI, even for high conservation value wetlands.55

Australian Capital Territory 16.48 Although the Australian Capital Territory Act confers no duty on the Minister to make environmental flow guidelines, the Minister is obliged to determine water management areas and the amount of surface water and ground water that is available for taking from each water management area (ss 16 and 17). These amounts must be determined taking into account the environmental flow guidelines and investigations to establish ‘sustainable yields for the water management area’ (s 17(2)). There is no statutory duty to make such guidelines (ss 12–15), though environmental flow guidelines were made in 2013.56 Thus, there are no statutory duties to make an EWA either at a certain level or in priority to the allocation and delivery of water to consumptive purposes. Neither does the Act provide for environmental water entitlements.

Basic rights, including native title 16.49 The term ‘basic rights’ refers to the statutory and remnant common law rights to take water without a licence for domestic and stock watering purposes and in exercise of native title rights. Chapter 11 describes the basic rights to take and use water for domestic and stock watering purposes. Chapter 13 discusses the law of native title to water resources and the effect of the NWI provisions in relation to planning for indigenous access to water resources. Native title rights to water are discussed in this context because they are defined as a category of ‘basic landholder rights’ in New South Wales57 and treated similarly in Queensland, and because the extent of the water resource use is similar to the basic rights to take water for domestic and stock watering purposes. Also, basic rights rest mostly upon some form of land title that gives the person access to the water resource. However, the term ‘basic rights’ is distinguished from the New South Wales’ concept

of ‘basic landholder rights’ because it includes access by members of the public via public reserve land for casual domestic (for example, camping) and stock watering purposes. [page 391]

Basic rights to take and use water for domestic and stock watering purposes 16.50 The NWI says little about basic rights to water other than to identify the problem of changes of land use activities that ‘have the potential to intercept significant volumes of surface and/or ground water now and in the future’.58 The three examples of these activities listed are (i) farm dams and bores; (ii) capture of overland flows; and (iii) large-scale plantation forestry. The NWI recognises that these sorts of activities present a risk to the future integrity of water access entitlements and EWAs if they are not subject to some form of planning and regulation. To that end, the NWI proposes that, in water systems that are near, at or over full allocation, significant interception activities should be recorded through licensing, and that proposed new interception activities above a threshold size determined by a water plan will require a water access entitlement. In systems that are not yet fully allocated nor approaching full allocation, significant interception activities should be identified and their effects estimated, and a water plan should set an appropriate threshold level for interception activities that will require a water access entitlement, and monitor to implement that requirement. 16.51 To date, New South Wales and Victoria have legislated to limit the general use of farm dams and bores, including dams that capture overland flow, to the taking of water for domestic and stock watering purposes.59 However, both these jurisdictions also provide for the taking and use of water from farm dams capturing overland flow in excess of stock and domestic purposes: New

South Wales by means of a ‘harvestable rights order”60 and Victoria by licensing commercial use of such water.61 Queensland, South Australia and Tasmania provide a basic statutory right that a person may take overland flow for any purpose unless that purpose is restricted by a water plan, in which case the overland flow can usually still be taken for domestic and stock purposes.62 Queensland has also introduced some revised basic rights to take overland flow water that may not be restricted by a water plan, including overland flow water contaminated by agricultural runoff, water for casual domestic and stock watering and public emergency purposes such as firefighting, under an ‘environmental authority’ and for an authorised ‘resource activity’ and construction activity.63 In the discussion here, we will consider the application of basic rights to take water for domestic and stock purposes in the context of farm dams and bores and the capture of overland flow. The interception of water [page 392] by plantation forestry will be considered below in the context of allocating water to consumptive uses.64 Focusing, then, on the basic rights to take water for domestic and stock purposes, there are two significant questions about the legislation: what does it say about a plan securing an allocation of water to be taken in exercise of basic rights; and what does it say about a plan limiting the exercise of the basic rights, including by requiring that a licence be held to take water for domestic and stock watering purposes? 16.52 The Water Management Act 2000 (NSW) requires a water sharing plan to identify the requirements for water within the plan area, or from the water source, to satisfy basic landholder

rights (s 20(1)(b)). Further, those water requirements must be considered in making the plan provisions to establish a ‘bulk access regime’ for the extraction of water under access licences, which must be consistent with the water management principles (s 20(1)(e) and (2)(f)). The water management principles require that water sharing ‘must protect basic landholder rights’ (s 5(3) (b)), second only to water for the environment but in priority to water for extraction under any other right. If there is a severe water shortage, the Minister may suspend the operation of the normal rules of distribution under the Act and water sharing plans (s 49A), and make an available water determination giving first priority to taking water for domestic purposes by persons exercising basic landholder rights and under access licences for essential town services (s 60(3)). Thus, the effect of the legislation is to afford some security of allocation to basic landholder rights under water sharing plans and water shortage orders. The enforcement of that security may be subject to a similar legal analysis that applies to the enforcement of the duty to make an EWA.65 16.53 The Water Act 2000 (Qld) does not specifically protect allocations of water to basic rights in the making of water plans. Clearly, a water plan may make provision for allocating water to stock and domestic uses (s 43(1)(b) and (2)(d)), and if a water plan provides for water ‘allocations’ it must state the water allocation security objectives (s 43(1)(e)). No guidance is given in the legislation as to what, if any, level of allocation is adequate for the exercise of basic rights. 16.54 The Natural Resources Management Act 2004 (SA) provides no specific protection for allocations of water to basic rights in the making of water allocation plans. A plan must: provide for a consumptive pool or pools for water access entitlements under water licences (ss 76(4)(ab), (4a) and 146(2)); ‘in providing for the allocation of water take into account the

present and future needs of the occupiers of land in relation to the existing requirements and future capacity of [page 393] the land and the likely effect of those provisions on the value of the land’ (s 76(4)(c)); and ‘assess the capacity of the resource to meet the demands for water on a continuing basis and provide for regular monitoring of the capacity of the resource to meet those demands’ (s 76(4)(d)). The first requirement mandates a plan providing for a consumptive pool, which will not include allocations to basic rights for stock and domestic purposes.66 It is evident that the second and third requirements are generally relevant to all water users, including licensees and basic rights holders, and do not make any secure provision for basic rights holders. The same is true of the provisions for consultation on the draft plan and the Minister’s decision to approve a plan (ss 78–80). Thus, there is no statutory guidance on allocating water to the exercise of basic rights before allocating water to other more intensive or extensive uses. 16.55 The Water Management Act 1999 (Tas) does not directly protect allocations of water to basic rights either, but the provisions for protection of ‘prior’ rights could afford some security. Under this Act, basic rights can be identified as the rights: of the owner or occupier of a riparian tenement to take water from a watercourse or lake adjoining that tenement for a specified purpose (including domestic, household garden and stock watering purposes) (s 48(1) and (2)); or of the owner or occupier of land to take dispersed surface water or ground water from the land for any purpose (s 48(4) and (4A)).67

Where a plan provides for the allocation and use of water, the plan must include an assessment of the capacity of the relevant resource to meet the likely demands for water by existing and future users and take into account the needs of existing and future users (s 15). Further, in preparing the plan, the secretary of the responsible government department must ensure that any user of water with a ‘prior right’ to take water from the water resource continues to enjoy that right unless it is abrogated for the purpose of ensuring that the environmental objectives of the plan are met, or so that the total allocations of water for consumptive use are reduced in order for the resource to be managed consistently with the Act’s objectives (s 21).68 Where a draft management plan proposes to abrogate such prior rights, notice must be given to the rights holders (s 21(3)) and compensation may be payable unless the abrogation is necessary to give effect to the environmental objectives of the plan (s 22). Thus, any re-allocation of water [page 394] by a plan from basic rights holder to other consumptive users would trigger a right to compensation. 16.56 The Water Act 1989 (Vic) provisions for making and approving plans for a water supply protection area contain nothing that purports, at the planning stage, to protect allocations to basic rights holders (ss 29–32A).69 However, there are provisions in the Act that show that a plan may specifically account for water taken in exercise of stock and domestic rights. Thus, a person taking water for stock and domestic purposes may be required by regulations to give written notice to the Minister of the amount of water taken (s 8(2)). Similarly, a plan may require persons taking ground water from specified bores to notify the administering Authority (s 32A(3)(b)). Further, the content of a plan may provide for limits on the amount of ground water that may be taken from

specified bores, restrictions on the taking of surface water at any location, conditions relating to the payment for the amount of ground water taken and used from bores in exercise of stock and domestic rights and for specific limits that can be placed on the volume of water that may be retained in private dams (s 32A(3)(f), (g), (j) and (n)). Interestingly, these provisions are all aimed at limiting the taking of water in exercise of the basic rights under s 8(1) of the Act rather than securing an allocation of water to the exercise of these rights. This purpose is confirmed by the statutory statement that a basic right for stock and domestic purposes conferred by s 8 is limited only to the extent that a limit is expressly provided in the Water Act or regulations, by-laws, or a management plan under that Act, or by express limit under any other Act or authority granted under another Act (s 8(6)). Thus, in a sense, the limits imposed on the exercise of stock and domestic rights under a management plan are equally a measure of the secure allocation of water to the exercise of those rights. 16.57 Generally, there are two forms of limits that may otherwise be imposed on the exercise of domestic and stock rights, and these may be subject to the operation of a water plan. One limit aims to avoid the proliferation of these basic rights from land subdivision. The Water Act 1989 (Vic) s 11 provides that the basic right to take water from a waterway will pass to only one lot upon subdivision of the land unless the Minister exempts a subdivision from the limitation. In doing so, the Minister must give effect to an approved management plan. The Water Management Act 2000 (NSW) s 52(2) provides that the basic right of owners or occupiers of new landholdings created by subdivision may be subject to prohibition or restriction imposed by regulation. This limitation applies more broadly to the exercise of basic rights in respect of riparian and ground water sources, but there is no express statement that the limits that may be imposed are subject to provisions of a water sharing plan. Similarly, the Water Act 2000 (Qld) s 96 provides that the basic right to take water collected in a dam (from overland flow) or from a watercourse, lake or spring for

domestic purposes is subject to attenuation upon subdivision of land declared by a regulation. 16.58 The second form of limitation is the provision in a water plan that the owner or occupier of land may only take water for stock and domestic purposes under the [page 395] authority of an access licence, thus repealing the statutory basic right. This form of licensing requirement is provided for in the South Australian Act,70 which also provides that the basic right to take water from a prescribed watercourse, lake or well may also be excluded by the regulation prescribing the resource for licensing. The Tasmanian Act provides that a management plan may require a licence to take water under the Part 5 basic rights.71 The New South Wales Act lists ‘domestic and stock access licences’ as one of the categories of access licences,72 but it is not clear how the requirement for such a licence is created unless it is through the establishment of a bulk access regime for the extraction of water under access licences.73 It appears that neither the Queensland nor Victorian Acts authorise a plan to negate the statutory basic rights by requiring that a licence be obtained to take water for such purposes. 16.59 Finally, an alternative potential limit that may be imposed by a plan on the exercise of basic rights for domestic and stock purposes is found in the South Australian Act. It provides that a basic rights holder who is in breach of the general duty to manage natural resources reasonably may be required to prepare and implement an ‘action plan’ that is approved by the relevant authority.74 A person will not be held to be in breach of the general statutory duty if the person is acting consistently with the relevant regional NRM plan, of which a water allocation plan is part (s 9(3)).

Native title rights to take and use water 16.60 NWI para 53 records the parties’ agreement that water planning processes will take account of the possible existence of native title rights to water in the catchment or aquifer area and that the plans may need to allocate water to native title holders recognised under the Native Title Act 1993 (Cth). The Water Management Act 2000 (NSW) s 55, the Water Act 2000 (Qld) s 95 and the Water Act 1989 (Vic) s 8A provide expressly for the allocation of water to native title or traditional activities and cultural purposes. The Natural Reources Management Act 2004 (SA) ss 3, 76 and 124 provide for plan and basic rights allocation of water to native title holders by including them in the definitions of ‘occupier’ and ‘owner’ of land. As native title to water may be defined as a class of basic landholder rights,75 the same propositions that apply to secure water allocations to landholders for domestic and stock watering purposes apply equally to native title rights to take water for consumptive use purposes. The statutory duty to make this allocation would be subject to the same limits on enforceability as were explained above in relation to the New South Wales duty to provide water for EWAs and domestic and stock rights. There, is however, a further problem in securing this allocation to native title rights under the New South Wales and Victorian Acts: each Act depends on there being a determination of the native [page 396] title or traditional owner rights. For example, in New South Wales, as the duty does not apply until there has been a determination of the native title right under the Native Title Act 1993 (Cth),76 there is the risk that all water in a management area may be allocated under a plan to EWAs, domestic and stock rights and water access

licences before there is a determination of native title. It is not clear how the plan allocations may be varied, if necessary, to secure an allocation to any newly determined native title rights for consumptive use purposes. Perhaps it would be better if, for example, the New South Wales Act provided for a water sharing plan to allocate water to native title rights at common law and as defined in a statutory native title determination. After all, a native title determination is merely a recognition, not a grant, of the long held indigenous rights and interests in land and waters under traditional laws and customs: Close on behalf of the Githabul People v Minister for Lands (NSW) [2007] FCA 1847 at [8] per Branson J. 16.61 Could the water legislation provide by implication from general terms for the allocation of water to native title rights? For example, the Victorian Water Act provides that a plan may impose restrictions on the taking of surface water at any location specified in the area of the plan.77 It is possible that an express plan restriction imposed on the taking of water by native title holders only could have the effect of allocating water to the exercise of those native title rights for consumptive use purposes. By contrast, the South Australian Act provides, as one of its principles for achieving ecologically sustainable development, for ‘consideration … [to] be given to Aboriginal heritage, and to the interests of the traditional owners of any land or other natural resources’.78 This principle would be relevant to a water allocation plan’s provisions for allocation of water that takes into account ‘the present and future needs of the occupiers of land’.79 A water allocation plan should, then, provide for water to be available to meet the needs of native title holders, as they would be interests of the traditional owners. 16.62 Similarly, the Queensland Act defines its objective of ‘sustainable management’ to include recognition of ‘the interests of Aboriginal people and Torres Strait Islanders and their connection with water resources’.80 But how are these interests actually taken into account in the substantive provisions

governing the making of a water resource plan? The answer is: they are not. There is nothing express in the mandatory and discretionary provisions for plan content that would require provision for traditional activities and cultural purposes.81 The Dictionary definitions of ‘occupier’ and ‘owner’ of land seem not to include native title holders, even though an ‘owner of land’ is defined to include, relevantly, the ‘person or body of persons who … has lawful control [page 397] of the land’,82 which may not cover all forms of native title interests.83 Thus, native title rights would not fall within the rights of ‘an owner of land’ to take water from a watercourse, lake, spring or overland flow.84 On the other hand, the express provision for Aboriginal and Torres Strait Islander parties ‘to take or interfere with water for traditional activities or cultural purposes’ cannot be limited by a water planning instrument or regulation.85 16.63 It must be concluded that, generally, Australian water resources legislation provides inadequately for the allocation of water to native title rights to take and use water and to the aspirations of Indigenous peoples for the commercial use of water resources.86

Allocating water to ‘consumptive use’ under access entitlements 16.64 The NWI identifies four key principles pertinent to the system of planning for the allocation of water to consumptive use access rights in the form of water access entitlements. Those four key principles (or sets of principles) pertain to: defining a consumptive pool or pools in a specified water resource in which there are water access entitlements;

providing a mechanism for making periodic allocations of water to the water access entitlements; dealing with over-allocation and over-use; and properly accounting for changes in land use that intercept water before it reaches a defined consumptive pool. We will explain these key principles and how they have been incorporated into the legislative provisions for water allocation planning.

Consumptive pool 16.65 The NWI defines ‘consumptive pool’ as ‘the amount of water resource that can be made available for consumptive use in a given water system under the rules of the relevant water plan’.87 It defines ‘consumptive use’ as the ‘use of water for private benefit consumptive purposes including irrigation, industry, urban and stock and domestic use’.88 Read together, these definitions suggest that all water in a defined water system [page 398] that is not allocated by a plan to ‘environmental and other public benefit outcomes’ would form the consumptive pool. However, these definitions need to be understood in the broader context of the NWI. For example, a water access entitlement is defined as a share of the consumptive pool and water plans are supposed to provide for resource security outcomes by determining the shares in the consumptive pool.89 The NWI also acknowledges that, in some cases, a statutory right to extract water may be an appropriate exception to the system of access entitlements based on shares in a consumptive pool.90 Further, the NWI treatment of ‘interceptions’91 from the exercise of basic rights and land use manifests a policy of planning and regulating them at levels that reflect the increases in the significance of those water

uses and the pressures on allocation levels. Thus, the exercise of statutory basic rights may need to be licensed to record the level of use and threshold limits may need to be set for when such activities require the authorisation of water access entitlements. If water access entitlements are issued for stock and domestic use, such uses will receive allocations from the consumptive pool, usually on a seasonal basis. Further, water allocated to the environment under water access entitlements would also be part of the consumptive pool. In summary, therefore, a consumptive pool identifies the water that is available for allocation to water access entitlements, including possibly stock and domestic and environmental entitlements. Normally, the volume of the consumptive pool will be ascertained after water has been allocated to the environment under plan rules and to the exercise of statutory basic rights. 16.66 It is also possible that more than one consumptive pool may be defined in respect of a single water system.92 A plan may propose to issue, from a single water system, different classes of water access entitlements with distinctive characteristics; for example, as to reliability or for reservation for public water supply purposes. While this approach appears not to be specifically contemplated in the NWI, it does not seem inconsistent with the NWI proposition that a water plan provide for ‘the estimated reliability of water access entitlements and rules on how the consumptive pool is to be dispersed between the different categories of entitlements within the plan’.93 How then does the legislation provide for the definition of consumptive pools? A review of the legislation shows that most jurisdictions provide for plans to define a consumptive pool or pools, but that they do not mandate this technique. The consumptive pool method requires a high level of water measurement and accounting, but governments do not see that as always necessary.

[page 399] 16.67 The New South Wales Act does not specifically employ the concept. Instead, it provides for the establishment of ‘a bulk access regime for the extraction of water under access licences’ as part of the mandatory content of a water sharing plan: Water Management Act 2000 (NSW) s 20(1)(e) and (2).94 Interestingly, a bulk access regime ‘may establish rules with respect to priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water’ (s 20(1) (d), emphasis added). Thus, the New South Wales Act contemplates different classes of entitlements being defined from a single consumptive pool. The Water Management Act 2000 (NSW) is unique in providing that all water sharing plans have a bulk access regime and share entitlements. Water resources not needing that management system may continue to be managed under the Water Act 1912 (NSW) regime, which is not discussed here. 16.68 The Queensland Act also eschews the use of the term ‘consumptive pool’. However, the provisions for the mandatory content of water plans suggest a basis for the creation of a consumptive pool or pools. A water plan must, if it ‘provides a framework for managing water allocations … state water allocation security objectives’: Water Act 2000 (Qld) s 43(1)(e).95 Further, a water plan must ‘state the volume of unallocated water reserved under the plan’ (s 43(1)(c)), though this may be included in a plan that does not establish a consumptive pool for share entitlements (that is, a framework for water allocations). If such a framework is adopted, there appears to be two ways in which it may be implemented: (i) by management under a resources operations licence (‘ROL’) to operate water infrastructure; and (ii) under a water management protocol (‘WMP’). Thus, a water plan may state the proposed holders of ROLs and whether a WMP is to be prepared for the plan area (s 43(2)(k) and (l)). A WMP is made

to implement a water plan and may state, for water allocations managed under a ROL, the water allocation dealing rules, and, for water allocations not managed under a ROL, the dealing rules plus the water sharing rules (s 67(b) and (d)).96 A ROL must also contain water sharing rules (s 179). Water allocations are, therefore, the tradable share entitlements that are issued in place of water licences and interim water allocations if the ROL or WMP provides for consumptive pool management (s 146). Besides the statutory provisions for consumptive pool management with a water allocations framework, the Act and Water Regulation 2016 (Qld)97 also provide for the declaration of ‘water management areas’ and the making of ‘water sharing rules’ that [page 400] operate in respect of licences rather than water allocations. These water sharing rules can also provide the basis for setting a limit on the consumptive use of water and for announcing annual entitlements to the licensees. These water management area rules operate at a lesser level of knowledge than is required to define a consumptive pool and share entitlements. They are generally employed for ground water management.98 16.69 Neither does the Victorian Act employ the specific concept of consumptive pool. However, the Act does provide for the issue of ‘shares’ in a ‘declared water system’: Water Act 1989 (Vic) s 33F. The Governor in Council has the power to declare a water system, but there are no statutory criteria to define the water systems that may be so declared or the content of such declarations: s 3 definition of ‘declared water system’ and s 6A power of declaration. However, on issuing a water share, the Minister must determine ‘the water system for which the share is issued, and, if that water system is divided into zones, the zone for

which the water share is issued’ (s 33G). This does little to specify the legal method of defining the consumptive pool. It is only in the constraints on the power to issue shares that the relevant legal instruments are identified. The Minister must not issue a share if it would exceed the limits of an approved water approved management plan for a water supply protection area, the declared permissible consumptive volume for the associated water system or any relevant bulk water entitlement (s 33I(2)). Each of these three instruments is a statutory means of defining limits on the allocation of water from a water resource to a consumptive use and, in that broad sense, could potentially define a consumptive pool. Even so, it is not easy to see how a permissible consumptive volume would distinguish the water in a water system that is to be allocated only to water access entitlements. 16.70 The South Australian Act is the only legislation to adopt explicitly the concept of ‘consumptive pool’. By amendments in 2007, the Act defines ‘consumptive pool’ to mean the water that will, from time to time, be taken to constitute the resource within a particular part of a prescribed water resource as determined by a water allocation plan or, in certain prescribed circumstances, by the Minister: Natural Resources Management Act 2004 (SA) s 3(1). As to the determination by a plan, the Act mandates that a water allocation plan must ‘determine, or provide a mechanism for determining, from time to time, a consumptive pool, or consumptive pools, for the water resource’ (s 76(4) (ab)). The Act provides expressly that a plan may provide for two or more consumptive pools in respect of a particular part of a water resource and that it may assign particular purposes to them (s 76(4a)). However, the application of a consumptive pool exclusively to the share-based water access entitlements is only implicit. A water licence gives the holder ‘an entitlement … to gain access to a share of water available in the consumptive pool or consumptive pools to which the licence relates’, which is called a ‘water access entitlement’ (s 146(2)). There is also considerable flexibility in how a plan may specify the rights of a ‘water access

entitlement’ (s 76(4b)), but it does seem clear that such an entitlement may only be conferred on a licensee. [page 401] 16.71 The Australian Capital Territory Act requires the Minister to determine ‘water management areas’ for the territory and to determine the total amounts of surface water and ground water that is available for taking in each area: Water Resources Act 2007 (ACT) ss 16–17. This is a simple method of defining a consumptive pool. 16.72 The Tasmanian Act makes no explicit provision for making plans that create a consumptive pool; nore does it establish the essential machinery for administering a consumptive pool: Water Management Act 1999 (Tas). The Act provides for the making of plans (ss 13–16) and for the issue of transferable ‘water allocations’ to licensees in accordance with plans and subject to such conditions as the Minister thinks fit (Part 6, Divs 1 and 2), but it contains no provisions for the grant of share-based access entitlements and the periodic determination and allocation of available water that may be taken by licensees with water allocations. It must be concluded, therefore, that the Tasmanian Act does not provide the foundation for implementing the NWI share-based water access entitlements.99 The Western Australian and Northern Territory Acts make no provision for consumptive pools or the grant of share-based access entitlements.

Periodic allocations to entitlement holders 16.73 In water allocation planning, the corollary to the consumptive pool for a share-based water access entitlement system is the periodic determination of the water that is available to the entitlement holders from time to time. The NWI says that

‘[t]he allocation of water to a water access entitlement will be made consistent with a water plan’, and that a water plan should include ‘rules on how the consumptive pool is to be dispersed between the different categories of entitlements …’.100 The first statutory expression of this concept was the New South Wales 2000 enactment of the power of the Minister to make ‘available water determinations’. Most other states have followed, though the language employed in the various jurisdictions differs. 16.74 The New South Wales Act 60 authorises the Minister to make either or both of the following: (a) a determination as to the availability of water for various categories of access licences in relation to specified water management areas;101 or (b) if there is a severe water shortage order applicable to an area or class of areas, a determination as to the availability of water for specified individual access licences: Water Management Act 2000 (NSW) ss 59–60. Except while there is a severe water shortage order in force, the Act provides for a default set of principles to determine the priorities to be applied in the making of the determinations; namely, statutory priorities under s 58 for different categories of licences, the provisions of any relevant bulk access regime, management plan and implementation program (in that order). A management plan may provide for different rules of priority from that given in s 58. If a severe water shortage order is [page 402] in force, a different set of statutory priorities apply. First priority goes to the taking of water for domestic purposes. Second priority goes to the environment. Third priority goes to the taking of water for stock purposes and a range of commercial and industrial activities, with regard given to the category of access licence and its level of security. Fourth priority goes to the taking of water under any other category of licence. As a general proposition, if

there is competition for the allocation of water between different categories of licences and water allocations have to be diminished, the allocations to the higher priority licences are to be diminished at a lesser rate than the allocations to the lower priority licence (s 58(2)). 16.75 The Queensland Act makes minimal direct provision for periodic water allocations. The primary statutory support for the practice comes in the definition of a ‘water allocation’ (Water Act 2000 (Qld) s 143), which specifies a ‘nominal volume’ (being a ‘number used to calculate the allocation’s share of the water available to be taken …’), a ‘maximum rate’ of take per specified period and a ‘volumetric limit’ of take per specified period, the latter two of which may be variable under an allocation condition. As noted above at [16.68], a ROL and a WMP must contain water sharing rules. In addition, also as discussed at [16.68], the Water Regulation 2016 (Qld) provides for the declaration of ‘water management areas’ and the making of ‘water sharing rules’ that operate in respect of licences rather than water allocations. These water sharing rules can also provide the basis for setting a limit on the consumptive use of water and for making periodic or seasonal allocations to the licensees. 16.76 The South Australian Act provides for the making, from time to time, of ministerial determinations of water allocations, being the volume of water in a specified water resource that is to be made available during the specified period to the holder of a water licence on account of the water access entitlement attached to that licence: Natural Resources Management Act 2004 (SA) ss 146(1)–(5), and 152(1)–(3).102 A water access entitlement defines the share of a consumptive pool or pools to which the water licensee has a right of access. The period specified for a water allocation may not exceed 12 months, but may be carried over to the next period (s 152(7)). A water allocation granted or issued (on transfer) by the Minister must be consistent with the relevant water access entitlement or transfer, and with any relevant water

allocation plan (ss 153 and 154(1)). The Act makes no explicit provision regarding priorities to be applied in the making of such ministerial determinations. However, a water allocation plan may provide for the constitution of more than one consumptive pool in a water resource and may assign a particular purpose to a consumptive pool (s 76(4a)). Likewise, a water allocation may comprise one or more components and restrict the purpose for which any component or volume of water may be used (s 153(2)). Perhaps it is intended that the designation of purposes will carry associated priorities, though it would appear more conventional to attach a priority to a water access entitlement. [page 403] 16.77 The Victorian Act provides for a two-stage process in the making of periodic allocations. The first stage is the making of ‘seasonal determinations’ of available water in respect of a ‘declared water system’ (Water Act 1989 (Vic) ss 64GA–64GB). The Minister has a discretionary power to appoint an Authority (a water corporation) to make the seasonal determinations in respect of a declared system, subject to any conditions that the Minister may specify. If an Authority is so appointed, it has a duty to determine before the start of each water season the water available in the system for each: class of water shares (which may have different levels of priority or reliability);103 bulk entitlement;104 and environmental entitlement. The Authority may make further determinations of additional water during the season. Before making a determination, an Authority must assess the amount of water in the system and the amount reserved for the

environment in accordance with any rules prescribed by an applicable bulk entitlement order or approved water supply protection area management plan. Subject to any particular rules stated in such an instrument, the Act further requires that a determination must apply in the same proportions in respect of: each water share in a class of water shares; each bulk entitlement in the declared system; and each environmental entitlement in the declared system. A determination as to the amount of water available for water shares in a water system may be expressed as a percentage of the maximum volume of water that has been determined for each water share. The second stage is the ministerial determination of the ‘water allocations’; that is, of the amounts of water to be allocated from the available water in that system to each water share associated with that system (s 33AC). Where an Authority has made a seasonal determination of the available water, the Minister has a duty to determine, from time to time during the water season, the amounts of water to be allocated to each water share associated with that system. Where there has been no seasonal determination by a Water Authority, the water allocation for each water share is to be the maximum volume determined by the Minister for that share when it was issued. It is not easy to see what the second stage of the process contributes, as the first stage seems capable of ascertaining the water allocations to be conferred. However, a seasonal determination by an Authority is to be announced by notice published in a newspaper, while it must be [page 404] inferred that a ministerial determination of a water allocation will

be notified directly to the holder of the water shares. The previous statutory provisions governing water licences (ss 49–64) continue, but without express statutory provision for making seasonal determinations or periodic allocations of available water for the coming season. However, for water licences that authorise the taking of water from a water resource that is the subject of a bulk entitlement,105 it may be anticipated that the licence conditions governing the circumstances in which water may be taken could provide for periodic water allocations determined on the basis of seasonal determinations of available water (s 56(1)(a)(iii)). The Minister may also publish an order specifying the criteria for determining the maximum volume of water to be used each year from farm dams capturing overland flow (s 52A). The Victorian Government says that ‘annual processes to allocate water to entitlements’ (including water licences) utilise ‘restrictions or bans on licence holders in unregulated of groundwater systems’ [sic], which may be referring to statutory powers to qualify rights.106 However, powers to qualify rights are a re-active system of managing declared water shortages, rather than a pro-active regime based on a seasonal determination of available water. 16.78 The Australian Capital Territory Act provides for water access entitlements to be conferred as a share of the total amount of water available or as a stated maximum volume: Water Resources Act 2007 (ACT) s 19. While the Act provides for amendment of water access entitlements (s 24), it appears not to confer statutory powers to determine seasonal water availability and to make seasonal water allocations in respect of the access entitlements. 16.79 The Tasmanian, Western Australian and Northern Territory Acts provide no basis for making periodic allocations.

Dealing with over-allocation and over-use

16.80 In the development of national water policy, the states repeatedly agreed with the Commonwealth to provide a better water balance for all over-allocated river systems and ground water resources, including by appropriate allocations to the environment and adjustment of water access entitlements. The provision of EWAs is discussed above at [16.20] ff. The discussion here focuses on the return of over-allocated or over-used systems to environmentally sustainable levels of extraction by the adjustment of water access entitlements. Other ways to achieve that objective are by the purchase of access entitlements and their conversion from consumptive use to EWA purposes, and by compulsory acquisition (which is discussed in chapter 22). The focus here is on the use of water allocation plans to legitimise the reduction of volumetric allocations under [page 405] water access entitlements without actually divesting the entitlement holder. This process is particularly important in the transition from the old form of water access rights to the NWI water access entitlements. 16.81 The initial commitment to providing EWAs and tackling over-allocation was made under the 1994 Council of Australian Governments (‘CoAG’) Water Reform Framework Agreement107 and elaborated upon by the 1996 National Principles for the Provision of Water for Ecosystems.108 The common interpretation of the 1996 National Principles was that water resource planning should provide water to sustain the ecological values of water-dependent ecosystems before water is allocated to human consumptive uses. In other words, water for the environment comes first. Where there were existing users, the provision of EWAs should go as far as possible towards sustaining the ecological values ‘whilst recognising the existing rights of other water users’.109 Where the

ecological water requirements could not be met because of existing uses, ‘action (including reallocation) should be taken to meet environmental needs’.110 In 1996, it was expected that, in due course, all water uses would be managed in ways that were ecologically sustainable.111 Furthermore, the early common approach to implementing the 1994 CoAG Water Reform Framework Agreement was that property rights in water would not be conferred ‘until a comprehensive planning system is in place which fully describes the resource and establishes a framework of consumptive and environmental uses’.112 Water plans were to establish ‘the environmental constraints within which any market for water entitlements might operate’.113 In 1999, the states’ commitments for dealing with over-allocation and over-use were defined by tripartite implementation agreements made during the 1999 National Competition Council (‘NCC’) assessment of the states’ implementation of National Competition Policy. These agreements were supposed to be substantially completed by 2005.114 16.82 In 2004, the NWI affirmed those commitments and expressed new commitments to make substantial progress by 2010 in addressing any other over-allocated and/or [page 406] over-used surface or ground water systems not covered by the NCC endorsed implementation programs.115 Any significant adjustment issues arising from reduction in water availability to access entitlement holders were to be addressed by consulting affected parties (ie through the planning process) on the potential responses, such as:116 (a) possible trade-offs between higher reliability and lower absolute amounts of water;

(b) the fact that water users have benefited from using the resource in the past; (c) the scale and speed of implementing change; and (d) the moulding of the framework for assigning the risk of future reductions.117 In addition, the Commonwealth committed to negotiating with the states for provision of regional structural adjustment assistance on a case-by-case basis.118 In other words, the general approach of the national policy was that reduction of water availability in the adjustment of water access entitlements to establish the NWI compliant regime was not to trigger a legal entitlement to compensation, though the Commonwealth may assist with the costs of structural adjustment. The effect of these commitments was summed up in the NWI objective to complete the return of all currently over-allocated or over-used systems to environmentally sustainable levels of extraction.119 16.83 Giving practical meaning to that objective would always be challenging. The approach of the NWI was to focus pursuit of the objective on the making of plans for particular systems. Thus, the NWI defines ‘environmentally sustainable level of extraction’ to mean the level of water extraction from a particular system which, if exceeded, would compromise key environmental assets or ecosystem functions and the productive base of the resource.120 The NWI further defines: ‘overallocation’ as situations where the total volume of water able to be extracted at a given time exceeds the environmentally sustainable level of extraction for a particular system;121 and ‘overuse’ as where the total volume of water actually extracted in a particular system at a given time exceeds the environmentally sustainable levels of extraction for a particular system.122 Indeed, the NWI anticipated that water would be provided by the states to meet environmental and other public benefit

outcomes as defined within relevant water plans.123 Thus, the environmental outcomes to be pursued were those defined in plans, and the plans’ outcomes would be determined in exercise of ministerial discretion rather than a [page 407] legislative direction that gives priority to the environment. These NWI provisions raise the question whether there were clear general criteria for ascertaining the water systems that needed to be returned to environmentally sustainable levels of extraction. Careful reading of the NWI shows that over-allocated/over-used systems were those that were identified either by the 1999 tripartite agreements with the NCC or by the states in accordance with a relevant water plan.124 A state’s NWI Implementation Plan may also have identified which systems were regarded as overallocated or over-used.125 16.84 The NWC concluded in its 2007 First Biennial Assessment of Progress in Implementation of the National Water Initiative126 that, although all states had made progress (to various extents) in establishing the NWI water access entitlement and planning framework, an important factor in declining stakeholder confidence in water access entitlements and security of environmental water was a lack of progress in addressing the issue of over-allocation of water resources, particularly in the MurrayDarling Basin (‘MDB’). The NWC identified a problem with defining over-allocation, even where NWI compliant plans were in place: The NWI treats addressing over-allocation as a first step which is fundamental to the long-term sustainability of the resource base and investment certainty for consumptive users. Debate continues about sustainable levels of extraction from water resources and, by extension, the meaning of ‘over-allocation’. Despite its clear and agreed place in the NWI, the Commission has found that there is now no shared national

understanding of what is meant by over-allocation. However, all states indicate that some of their surface water and groundwater systems continue to be considered as (depending on the terminology they use) under stress, potentially under stress, at risk, requiring water beyond the basic ecological needs, or over-allocated.127

The problem of defining ‘over-allocation’ is the problem of defining ‘sustainable yield’. How does one establish that an allocation limit is sustainable? The NWC’s 2007 assessment report found that, in many areas, the states’ ‘estimates of sustainable yield are based on the current level of entitlements’.128 [page 408] 16.85 Even as the NWC reported, the determination of sustainable yield for the MDB was being addressed at a higher level. As explained in chapter 3 at [3.19] and in chapter 14 at [14.31] ff, the Commonwealth decided to take the lead on determining ‘sustainable diversion limits’ for all water resources in the MDB by enacting the Water Act 2007 (Cth), which provides for the making of the Basin Plan (discussed below at [16.125] ff). The scheme of the Basin Plan still depends mostly on the implementation of the sustainable diversion limits by state water resources plans and entitlement systems. There is also the question of how the states deal with over-allocation and over-use outside the MDB. For these reasons, we discuss a selection of the relevant state legislation before turning to the national actions to address sustainability in the MDB. 16.86 It is not possible in addressing the legislation here to evaluate the crucial impact of the scientific research on determining environmentally sustainable levels of extraction. However, it is germane to observe that the scientific input does not determine the political determinations made under the legislation. This may be seen in the effect of the sustainable yields studies undertaken by the Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’). In November 2006,

concern about the problem of over-allocation in the MDB led the Australian Government to commission the CSIRO to undertake the MDB Sustainable Yields Project. The CSIRO reported in October 2008 on Water Availability in the Murray-Darling Basin. The CSIRO said of its report: The results should also be valuable in future assessments which may contribute to the development of the Basin Plan including consideration of (i) the consumptive and other economic uses of MDB water resources; (ii) conservation and sustainable use of biodiversity; and (iii) social, cultural, Indigenous and public benefit issues. The project has developed for the first time an integrated modelling capability for the entire MDB linking multiple river systems models together with multiple groundwater models. This capability should be invaluable in coming years for additional investigations including for example, scenarios of: (i) altered water sharing to guide determination of sustainable diversion limits; (ii) river system management that explores opportunities for greater efficiency in water delivery and use; (iii) the implications of temporary and permanent water trade; and (iv) altered environmental watering.129

It is notable that the CSIRO report did not make value judgments about what level of impacts may constitute overallocation or over-use. Neither, it is suggested, could the CSIRO analysis say what measures should be taken to reduce water access entitlements in those systems determined to be over-allocated. 16.87 While one may attempt to define a legislative model for ecologically sustainable allocation and management of water resources,130 that task is not pursued here. Rather, we briefly review a selection of the current state statutory provisions to ascertain what [page 409] they say about water allocation plans addressing over-allocation and over-use. We are particularly looking at whether there is a statutory duty or power to reduce or abrogate existing water access rights and whether there is any accompanying duty to compensate entitlement holders on reduction of access

entitlements. It is not possible here to research the provisions actually adopted in water allocation plans that make reductions; we mention only those features of water allocation plans addressing over-allocation and over-use that have been litigated. 16.88 New South Wales appears to have confronted the most trenchant and disputed problems of over-allocation. The objects and management principles of the Water Management Act 2000 (NSW) do not say anything specific about tackling these problems (ss 3 and 5). Neither do the provisions governing the content of water sharing plans (ss 20–21). Other than the provisions governing the making of EWAs, discussed above,131 the approach to dealing with these problems was left by the parliament to the Minister making the plans. The only relevant statutory duties arise in the context of compensating the holder of an access licence for the loss suffered because of reductions in the access entitlement, either (i) because of the variation of the consumptive pool (in New South Wales, called a ‘bulk access regime’) during the initial period of the management plan (s 87) regardless of the reason; or (ii) because of a change to the provisions of a relevant management plan after the initial period of the management plan (s 87AA). In the second situation, the Minister must make a statement about the purpose of the reduction in the water allocations (s 46), because the compensation provisions operate differently on reductions made for different purposes.132 While the Act gives no substantive guidance on reductions in allocations and use, the state water management outcomes plan (‘SWMOP’), Part 2, sets five-year water management targets, including target 6 — pertaining to the reduction in the total volume of share components specified on access licences to more closely match the extraction limit of the plan. It is the Minister’s duty in approving a water sharing plan to give effect to the SWMOP (s 9).133 The SWMOP must be consistent with government obligations arising under any intergovernmental agreement, such as the Murray-Darling Basin Agreement set out in

Sch 1 to the Water Act 2007 (Cth) (s 6(3)(a)). The SWMOP gazetted in 2002 had effect for five years (s 6(6)) and has now ceased to have effect. 16.89 There have been three particular challenges to New South Wales’ water sharing plans by water access entitlement holders aggrieved by the reduction in or curtailment of entitlement rights.134 In the first of these challenges, Murrumbidgee Horticulture Council v Minister for Land and Water (NSW) [2003] NSW LEC 213, 127 LGERA 450, the Council challenged provisions of the Murrumbidgee Regulated River Water Sharing Plan 2003 [page 410] that prohibited the trade of high-security licence (annual) allocations after 1 September of each water year (that is, confining such ‘temporary’ trade to the first two months of the water year) and of general-security licence allocations after the end of February. The purpose of the limit on trade was to manage the over-allocation to ensure that the environmental objective of the plan could be met. The source of the problem of over-allocation135 was mired in the historical practices of water allocation that gave horticulturalists with perennial crops generous rights to large volumes of high-security water and the annual croppers large entitlements to general-security water. Historically, seasonal conditions meant that high-security licensees frequently did not need to take their full entitlements, and this permitted a higher reliability of allocations to the general-security licensees. Thus, the levels of diversion or use by the high-security licensees had been much lower than their levels of entitlement and annual allocation. In 2006, Murrumbidgee Irrigation Limited held entitlements to approximately 280 GL of high-security water and 930 GL of general-security water. If the high-security licensees were permitted to trade their full allocations at any time of the year,

there would most likely be a greater than historical use of highsecurity water that, in combination with the historical levels of use of general-security water, would lead to an exceedance of the MDB Cap (see chapter 14 at [14.18] ff) and an inadequate provision of water for the EWA. The constraints on temporary trade were, therefore, designed to preserve historical levels of water use, especially by high security licensees. This had the effect of providing not only greater security to the EWA but also greater reliability to the general-security licensees without the dollar costs to them of trade (that is, buying the water from the high-security licensees). The Land and Environment Court upheld the constraints on trade because the Act gives no unfettered right to trade water. 16.90 This first case also identifies another issue that is not explicitly dealt with in the NWI; that is, the basis on which the old water licences under the Water Act 1912 (NSW) were converted to the new tradable entitlements under the Water Management Act 2000 (NSW). The New South Wales Government initially chose to honour ‘legal entitlement’ rather than ‘history of use’ to calculate the new entitlements. Apparently, this was not because there was a lack of data to determine the historical use, which may be a problem in some jurisdictions. Rather, the legal entitlement approach was regarded as more equitable because the sleeper (unused) and dozer (partially used) licences were regarded as having a market value and were already being traded.136 It is not known whether the government was influenced in this policy decision by the experience with the introduction of tradable fisheries licences, where the de facto trade value of licences was to be taken into account in allocating ‘individual transferable quotas’, not just catch history: see Australian Fisheries Management Authority v Graham (2003) 127 FCR 437. [page 411]

The policy of honouring sleepers, which was also applied in Victoria,137 was exacerbated by the further policy of permitting sleepers to be traded.138 It appears that much of the early water trade was in sleeper allocations; the CSIRO found in 2000 that 99 per cent of water traded in the interstate pilot trade project came from sleepers.139 While the full extent of this practice may not have been publicly documented, the activation of even some sleeper allocations surely exacerbated problems of overallocation and over-use. 16.91 The policy of honouring sleepers was also initially applied to ground water in New South Wales but that policy was reversed in the 2006 amendment of the water sharing plans for the six major inland alluvial ground water resources, where a greater weighting was given to historical use.140 The late Professor Cullen, then a National Water Commissioner, stated in 2006:141 Management agencies need to withdraw groundwater licences that have not been used. The failure to withdraw sleeper licences when surface water trading commenced saw them activated and traded with serious consequences.

16.92 The next two of the three New South Wales cases concerned irrigator challenges to the Lower Murrumbidgee Groundwater Sharing Plan 2003 and its 2006 amendment. The two cases illustrate the change in approach to dealing with the problem of over-allocation. In Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11,142 the applicants challenged the original 2003 plan as irrational because it made a proportionate reduction of all entitlements, regardless of the history of extraction and the variable sustainable yields from the water resource in different parts of the management area. The effective reduction was, however, to be phased in over the term of the plan by the additional provision of supplementary water access licences that allowed for the prior history of extraction but diminished to a zero allocation (and cancellation) over the term of the plan. Over the life of the plan, the capacity of entitlement holders to trade

would bring licensed extraction from particular areas closer to the annual recharge and sustainable yield of those areas. The challenge was unsuccessful as the court would not hold that the anomalies and potential unfairness in the operation of the plan’s provisions were beyond the scope of the Minister’s discretion as irrational. However, the court noted that a case for judicial intervention could, perhaps, [page 412] have been made out if the plan ‘had not addressed the potential anomalies by providing a regime for supplementary water’: Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at [185]. 16.93 In Harvey v Minister Administering the Water Management Act 2000143 the applicants challenged on procedural grounds the 2006 amendment to the Lower Murrumbidgee Groundwater sharing plan 2003, which abandoned the proportionate reduction of all entitlements in favour of a policy of reductions based more on the history of use (extraction). Those licensees who had a history of extraction greater than their new share component could still receive supplementary water access licences, which would reduce to zero over the life of the plan. This challenge was also unsuccessful, but this should not be taken as any judicial endorsement of the plan’s methods of dealing with the problems of over-allocation and over-use. 16.94 The South Australian Act contains some of the most notable legislation for addressing over-allocation and over-use: Natural Resources Management Act 2004 (SA). The objectives of the Act have been discussed in chapter 4 at [4.7] and in relation to EWAs above at [16.37] ff. These objectives provisions express general but not specific propositions about over-allocation and over-use. The planning provisions, similarly, contain propositions

of general relevance but also give specific authority for a water allocation plan to address over-allocation. A regional NRM plan must include information about practical considerations relating to managing the natural resources of the region, including, if relevant, rehabilitation of the natural resources (s 75(3)(a)(iii)). Importantly, a ‘water allocation plan may, in order to improve the management of a water resource, change the basis on which water is allocated from the resource notwithstanding that a consequential variation of a water licence to maintain consistency with the plan results in a reduction or increase in the quantity of water allocated in relation to the licence’ (s 76(8)). The Act also requires a regional NRM plan and a water allocation plan that applies in the River Murray catchment to further the objects of the River Murray Act 2003 (SA) and the Objectives for a Healthy River Murray under that Act.144 These objects and objectives include a number of general references to restoring the health of the River Murray,145 but they do not give specific guidance on tackling overallocation and overuse. Further, a failure to comply with this requirement will not affect the validity of the plan (s 86(2)). By amendment in 2008, the Act also now requires a regional NRM plan to be consistent with the provisions of the Basin Plan under the Water Act 2007 (Cth), which explicitly deals with overallocation and over-use.146 [page 413] 16.95 The South Australian Act also provided for dealing with over-allocation both generally and in the transition from the then existing water licences to the new licences with share-based water access entitlements: Natural Resources Management Act 2004 (SA) Sch 1, Part 2, cl 5(1). First, there is provision for a simplified plan amendment procedure to address ‘an urgent situation that has arisen in relation to the protection of any natural resource … or in order to

take urgent action to safeguard the ecological, environmental, social or economic value of any such natural resource …’ (s 81(7) and (8)(d)). Second, the Act contains specific cumulative powers to reduce or vary water allocations for various reasons that may pertain to overallocation or over-use, including preventing the water allocation from being inconsistent with the terms of a water allocation plan or the operation or effect of the Basin Plan or MDB Agreement (ss 155 and 156). If a water resource is not already subject to a water licensing regime, the amended Act continues a previous power to prescribe a water resource and issue existing water users with water access entitlements based on the established existing use or, if that existing use exceeds the capacity of the water resource, to reduce the water access entitlements proportionately or pursuant to a scheme set out in regulations (s 164N). The amended Act also contains a power for the Minister, by notice in the Gazette, to establish a scheme to promote the transfer or surrender of water allocations and water licences within the MDB to the Minister (s 164O) for a price. To ensure the currency of any decision to be made by the Minister in managing water allocations, the Act provides that the law to be applied to the making of any such decision is the law in force at the time that the decision is to be made, including the provisions of any regional NRM plan (which includes a water allocation plan) (s 164R(1) and (2)). 16.96 The South Australian Act contains no general provision for compensation for the reduction of a water access entitlement, but there are two limited provisions for compensation to a person who suffers the loss of rights to take water. The main provision is the duty of a regional NRM board to compensate a person whose exercise of a right to take water from a watercourse or lake, whether pursuant to a water access entitlement or not, is harmed by the board stopping, reducing or diverting the flow of water in the watercourse or into the lake (s 211(1)). However, if a regional NRM board authorises (as a delegate of the Minister) another

person to stop, reduce or divert the flow of water as a result of allocating water to a licence or approving the transfer of a licence, the board is not responsible for stopping, reducing or diverting that flow of water (s 211(2)). It is not clear how the person suffering the loss here would be compensated, or whether the remedy may lie in compensation conditions imposed on the water allocation or transfer approval, or even in the Minister’s power to amend an allocation. The second main situation for compensation concerns the Minister’s liability to compensate the owner of land for the value of a lawful dam or other embankment for capturing water flowing in a watercourse or over any other land, and for the loss of water captured by it, where the Minister has required the removal of the dam or embankment (ss 134 and 211(3), (5)). 16.97 The Victorian Act has limited references to problems of over-allocation and over-use, and some of those references are only indirect: Water Act 1989 (Vic). They include: [page 414] the water resources assessment program must include information about current and historic levels of allocation and use of surface and ground water (s 22(2)(ga));147 a sustainable water strategy should identify ways to increase the volume of water in the environmental water reserve (s 22C(1) (d));148 and a long-term water resources assessment (every 15 years) must identify whether or not there has been a decline in the long-term availability of surface water or ground water, and whether the decline has fallen disproportionately on the environmental water reserve or on the allocation of water for consumptive purposes (s 22L); and if the Minister believes that an assessment has identified such a decline, the Minister must establish a review to determine the action to be taken to restore the balance (s 22P),

and may adopt a program to implement the review, including the permanent qualification of ‘rights to water’, though any such qualification may only take effect every 15 years (ss 22V and 33AAB).149 In addition to these provisions, the Act contains interacting provisions that govern the setting and application of limits on the issue of water access rights, yet none of these make any explicit reference to how to deal with a problem of over-allocation. For example, the Minister may declare a permissible consumptive volume in respect of an area or water system (s 22A), and a water supply protection area management plan (which has the objective of providing for long-term sustainability) may set limits on the amount of water that may be taken, and these limits must be applied by the Minister in issuing shares (s 33I(2)) or granting a licence (s 55), or by the Minister or Governor in granting a bulk entitlement (ss 40 and 42(2)). However, there is no guidance on how to deal with over-allocation or over-use by reducing entitlements. It is as though the planning provisions of the Act assume that there are no current problems of over-allocation or over-use. 16.98 Yet that is not the truth. Victoria has had problems of over-allocation and over-use, as some decisions of the Victorian Civil and Administrative Tribunal illustrate. In Bates v Southern Rural Water [2004] VCAT 2045 the applicant sought a licence to take ground water from an aquifer that was acknowledged to be over-allocated, with rapidly falling water levels. The tribunal had little problem in rejecting the appeal against the Authority’s refusal of the licence application, even though there was no declared permissible consumptive volume or approved management plan imposing a legal limit on water allocations and a similar large licence application by a neighbour had just recently been granted. 16.99 In Leonard v Southern Rural Water [2007] VCAT 1562 the

Authority faced the challenge of bringing into the regulatory scheme a number of long-term unlicensed extractions of ground water from an over-allocated resource, including by Mr Leonard, who pleaded ignorance of the licensing requirement. The Authority adopted a policy [page 415] of issuing three-year provisional licences with ‘zero’ allocations and instructing the provisional licensees that they had a period of time in which they could purchase a water allocation to correct their unauthorised use of water. With the Authority’s acquiescence, Mr Leonard continued to take water to irrigate his crops. A condition was imposed on the provisional licences that made their renewal subject to the licensee ‘making a genuine and transparent attempt to transfer the water’. The case came before the VCAT when the Authority refused a second renewal of the provisional licence in August 2006. Needless to say, Mr Leonard had not purchased an allocation. A permissible consumptive volume order was formally declared in November 2006, but no management plan had been approved. The VCAT was scathing in its critique of the Authority’s policy, saying that there was no statutory authority to issue the zero licences, the only purpose of which was to justify the Authority’s decision not to prosecute the unlicensed taking of water. Further, any application for a licence with an actual allocation for the 20 ML that Leonard was taking would have to be refused because current allocations were already at 134 per cent of the permissible consumptive volume. The VCAT refused to grant the licence application even though there was evidence that the actual use of the formal entitlements was only about 50 per cent. 16.100 Situations of over-allocation call for a management plan to reduce formal allocations to sustainable levels. If a management

plan is made, the Minister has the power to vary a licence, but only to the extent necessary to ensure compliance with an approved management plan (s 59). Alternatively, the Act provides for the transition from the old scheme of water licences to the new NWI regime of ‘water shares’, which may be the opportunity to reduce entitlements to sustainable levels. There is a power to cancel a licence on the issuing of a water share in a declared water system (s 61A). There appears to be no requirement that there be a water management plan applicable to the declared water system before the Minister may issues shares in it. Neither is there any such requirement controlling the Minister’s power to vary a share, though the Minister may make an Order for rules applicable to the administration of shares (ss 33Q and 33AZ(1)(a)). The Victorian Act contains provisions for compensation where a management plan or the grant of a licence access right confers a benefit on one person to the detriment of another (ss 32F(2) and 56(1)(a)(x)). The person gaining the benefit must compensate the person suffering the detriment. However, there is no provision for compensation to be paid to a person who suffers a reduction in water access entitlement that does not confer a direct benefit on another person, whether that be on the conversion of licence rights to water shares or not. An Authority may reduce, restrict or discontinue a water supply to manage or avoid a water shortage, without any liability to pay compensation (s 141(1)(a) and (b) and (8)). Similarly, there is no provision for compensation for the permanent qualification of water rights following a long-term water resources assessment. Compensation is, however, payable by the Minister in a limited number of circumstances in which the Minister orders the occupier of any works on a waterway or a bore to alter or remove the works (ss 78 and 82). 16.101 The Tasmanian Act’s planning provisions directly address problems of over-allocation. A plan must include an assessment of the ability of the proposed water regime

[page 416] to achieve the environmental and other objectives of the plan: Water Management Act 1999 (Tas) s 14(2)(c). If a plan provides for the allocation and use of water, the plan must include ‘an assessment of the capacity of the relevant resource to meet the likely demands for water by existing and future users’ and state the ‘likely effect of the plan on existing and future users’ (s 15(a) and (b)). In order to improve the management of a water resource, a plan may change the basis on which water is allocated even though a consequential variation of a licence may be required to maintain consistency with the plan (s 16(1)). Where such a change requires a reduction in the water allocations of licences to take water, the plan must provide an equitable procedure for effecting the reduction and the process of reduction must give effect to the various ‘sureties’ (securities) attaching to the licences or water allocations (s 16(2)). The Act also provides specifically for the effect of the plan on the holders of prior rights: ie existing users. The primary duty of the Secretary preparing a plan is to ensure that existing users continue to enjoy their prior rights. However, if the total allocations of water to those existing user rights, and their existing conditions of use, would prevent the achievement of the water regime that best gives effect to the plan’s environmental objectives, the plan may provide for the abrogation of any prior right to the extent necessary to achieve such a water regime (s 21). The holder of a prior right that is abrogated is entitled to compensation unless the abrogation is necessary to achieve the plan’s environmental objectives (s 22). The Minister has the power to vary licences and reduce water allocations if so provided by a water management plan (ss 69 and 88). 16.102 The Australian Capital Territory Act includes an objective ‘to protect aquatic ecosystems and aquifers from damage and, where practicable, to reverse damage that has already

happened’: Water Resources Act 2007 (ACT) s 6(b). However, the provisions for the making of the environmental flow guidelines and determinations of water available from water management areas do not mention how to deal with problems of overallocation and over-use, other than providing that the Minister may state reasons for making a determination that reduces the amount of water ‘reserved for future use’ (s 17(4)). There is a power to amend a new water access entitlement (s 24). There is also a separate power to grant a water access entitlement on surrender of a ‘surviving allocation’ granted under the 1998 Act, thus providing for the conversion of the former Act’s water licence allocation to the new form of access entitlement (ss 110–111). The conversion provisions direct that the amount of water that may be taken under the new entitlement shall be, if a fee was paid for the surviving allocation, ‘the percentage of water available for taking in the water management area that is equivalent to the volume of the [surrendered] allocation’ (s 111). If no fee was paid, the amount of water that may be taken should be the percentage of water available for taking that is equivalent to the lesser of: (i) the volume of the surviving allocation; and (ii) the amount that has been determined by the Minister to be reasonable for the existing use. Thus, surviving allocations for which a fee was paid may not be reduced on conversion, but the Minister has the capacity to effect reductions in converting surviving allocations that were acquired for free by determining guidelines for the amounts of water that are reasonable for particular uses (s 18). There is no provision for compensation for reduction of a water access entitlement (s 99). [page 417] 16.103 The Western Australian Act has generally not been discussed in this chapter because it has no functioning statutory water allocation planning system: Rights in Water and Irrigation

Act 1914 (WA).150 The Act contains no recognition of current problems of over-allocation and over-use.151 Yet the Act does vest powers in the Minister unilaterally to vary, suspend or cancel a licence for a suite of reasons, including to protect the water resource and associated environment from ‘unacceptable damage’ (Sch 1, cll 24(2)(b) and 25(2)(a)). The exercise of these powers gives rise to a prima face right to compensation that may be denied if the Minister is of the opinion that the effect of the exercise of the power is ‘fair and reasonable having regard to the effect of the exercise of the power in respect of other licence holders in the surrounding area’ (Sch 1, cl 39(1)(c) and (5)). There is no evidence of the power having been used. In contrast, a parallel unilateral power of the Minister to vary a licence because ‘the quantity of water that may be taken under the lcience has consistently not been taken’ (Sch 1, cl 24(2)(d)) has been exercised to deny the grant of the previous level of water entitlement on renewal of a licence,152 and is seen by the Minister’s department as a mechanism to reduce the level of legal entitlements in overallocated areas. 16.104 In summary, the legislation of the various states reviewed provides different levels of recognition for the problems of overallocation and over-use, but none of these states’ legislation mandates executive government action to address these problems within a particular time or in a particular way. The South Australian and Tasmanian Acts give more guidance on how to tackle these problems. Their legislation provides for water plans to be made to deal with over-allocation and over-use and confers ministerial authority to adjust water access rights in accordance with the plan determinations. The South Australian Act specifically provides that a plan must be consistent with the Basin Plan under the Water Act 2007 (Cth) and that the Minister may vary allocations to prevent them from being inconsistent with the Basin Plan. The New South Wales Act purports to give effect to addressing over-allocation and the Water Act 2007 (Cth) through the SWMOP, which has ceased to have effect, yet clearly its water

sharing plans can be amended to implement the Basin Plan. The Victorian Act barely recognises the issues of over-allocation and over-use and makes no express provision for implementing the Basin Plan, yet it does provide for long-term water resources assessments each 15 years, which could be a suitable mechanism for implementing the Basin Plan. The legislation of each of these states imposes no definite duty to pay compensation for reductions in water access entitlements on the transition from the former water access regimes to the NWI regime. That approach was vindicated in the High Court decision of ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; 240 CLR 140, especially at [147]–[153]. The court held that the New South Wales Government’s reduction of the access entitlement on the transition from the Water Act 1912 (NSW) bore licences to [page 418] the 2000 Act aquifer access licences did not amount to an acquisition of property because the bore licences were, even if seen as property, ‘fragile’ entitlements that could be reduced at any time: The amount of water that the State could permit to be extracted was bounded only by the physical state and capacity of the aquifer, and such policy constraints as the State chose to apply.

The replacement or cancellation of particular licences did not change what was under the control of the state. Any future increase in the water resources would give the state nothing more. Some commentators have suggested that the ICM decision seems to give governments greater flexibility to reduce water access rights without paying just terms compensation, but this view overlooks the inherent susceptibility of the old form of bore licences to executive government variation under the pre-NWI legislation. The NWI legislative reforms are intended to give

greater long-term security with planning procedures to vary the share entitlements, especially when making future reductions to consumptive use entitlements for environmental policy reasons. During the life of a plan, NWI share entitlements are to have greater rigidity and it would be premature to see the ICM case as determining the interpretation of the NWI regime.153 For example, the Australian Capital Territory preserves in the conversion to water access entitlements the volume of surviving allocations that were acquired for a fee. New South Wales provides that compensation is payable if a plan amendment during the initial 10-year period of the plan results in a reduction the water access entitlements, and has legislated to provide for the NWI compensation formula for adjustment to water access entitlements beyond the life of the initial plan, which is discussed below.

Accounting for interceptions from changes of land use: plantation forestry 16.105 In the past decade, threats of over-allocation and overuse have come from the unregulated exercise of basic landholder rights and changes in land use activity posed by large-scale plantation forestry. If these practices are not subject to planning and regulation, they can intercept the flow of water to the watercourses and aquifers that have traditionally been the object of water allocation planning. Over time, these interceptions threaten the integrity of water access entitlements and the achievement of environmental outcomes.154 The planning and management of this problem in the context of basic rights was addressed above: see [16.50] ff. The question here is what water allocation planning legislation provides for accounting for plantation forestry. 16.106 Historically, water resources law has not defined a water access right in relation to the water consumed by the non-irrigated planting of crops and trees. The NWI para 57 proposes that, in water systems that are approaching, at or over full allocation,

[page 419] significant interception activities should be recorded through licensing, and that proposed new interception activities above a threshold size determined by a water plan will require a water access entitlement — that is, the volume of water consumed would be accounted for in the determination of the consumptive pool — and a compliance monitoring regime will be implemented. In systems that are not yet fully allocated nor approaching full allocation, significant interception activities should be identified and their effects estimated, and a water plan should set an appropriate threshold level for interception activities that will require a water access entitlement, and monitor to implement that requirement. The NWI proposes that states implement this strategy by no later than 2011. What have the states done to legislate for this strategy? 16.107 The NWC’s First Biennial Assessment in 2007 reported that ‘all states have commenced work to incorporate interception into their water allocation planning regimes in varying ways and with varying degrees of progress’.155 It appears, however, that South Australia is the only state to have legislated specifically to allocate water to plantation interceptions. Before reviewing that legislation, it is useful to review the New South Wales provisions to see what limitations current legislation may encounter in addressing this problem.156 16.108 The New South Wales Act provides that the environmental protection provisions of a management plan may identify zones in which development or existing uses should be controlled or remedied in order to minimise any harm to water sources in the area: Water Management Act 2000 (NSW) s 34(1). It is unclear whether such provisions could formally allocate a volume of water to interception by trees. The Act also mandates that a water sharing plan identify the requirements for water for

extraction under basic landholder rights and access licences (s 20(1)(b) and (c)). However, neither form of access right is appropriate to authorise a defined allocation and access right for water interception by tree plantations. Landholder rights relate to domestic and stock use and the categories of access licence prescribed by the Act and the Regulations do not include a licence that would be applicable to a tree plantation intercepting the flow of water.157 The statutory language of s 56, which confers on an access licence-holder the right to ‘take’ water, is not applicable to trees intercepting the movement of water through sub-surface soil. ‘Take’ is not defined, but its traditional operation in the context of water law does not include trees using water. Another form of authorisation could be contemplated. Could such interceptions be regulated under a controlled activity approval or an aquifer interference approval (s 91(2) and (3)) or other powers? The definition of a ‘controlled activity’ includes a reference to ‘the carrying out of any other activity that [page 420] affects the quantity of flow of water in a water source’.158 However, the relevant forestry legislation expressly exempts operations on an authorised plantation from the need to obtain a controlled activity approval.159 The definition of ‘aquifer interference activity’160 expressly includes the taking of water from an aquifer in the course of mining or any other activity prescribed by regulations. The Regulations, however, do not prescribe tree plantations for the purposes of the definition of ‘aquifer interference activity’.161 Further, the powers under the Act to issue notices or directions regarding the use of water are expressly inapplicable to plantation forestry.162 In summary, the New South Wales Act and Regulations do not provide for a category of access rights or other approval that can be issued to regulate the interception of water by plantations.

Further, the relevant forestry plantation legislation excludes potentially relevant water legislation provisions from applying to plantations. 16.109 This sort of analysis also pertains to other states’ legislation that governs the management of water resources and the regulation of tree plantations and forestry. In Victoria, the Water Act 1989 (Vic) does not allocate water to tree plantations and, while other legislation — such as the Catchment and Land Protection Act 1994 (Vic) and the Planning and Environment Act 1997 (Vic) — may permit consideration of the effects of establishing tree plantations on water quality, it generally contains no detailed provisions for management of the impacts of land use on water quantity. However, after some early concerns with afforestation interception of water, the issue seems to have attracted little legislative attention. The NWC commented, in its 2014 triennial assessment, that South Australia was the only state that had legislated to address this issue through water resources management.163 16.110 The South Australian Act provides that a water allocation plan may identify appropriate principles and methodologies to determine the impact that commercial forests may have on a prescribed water resource (that is, a resource managed by licensing) and designate the commercial forests for management under new provisions that account for those impacts: Natural Resources Management Act 2004 (SA) s 76(9)– (14).164 The impacts to be addressed may be one or more of ground water reduction recharge, [page 421] surface water run-off reduction and direct extraction from aquifers. The ‘forest water licence’ provisions are discussed in Part 5 of this book, chapters 18 and 21.

Assigning risk for future reductions in water availability 16.111 One of the NWI objectives is to achieve ‘clarity around the assignment of risk arising from future changes in the availability of water for the consumptive pool’.165 So, the NWI proposes a new risk assignment framework to apply to any future reductions in the availability of water for consumptive use that are additional to those being made under current commitments to address over-allocation and/or over-use.166 Indeed, the future risk management framework assumes that the NWI regime has been established, and that the water allocation plans are being implemented (including monitoring and reporting) and are dealing with historical over-allocation and over-use. The future risk assignment framework features the following propositions:167 (a) Water access entitlement holders are to bear the risk of any reduction in entitlement arising from reductions in the consumptive pool as a result of seasonal or long-term changes in climate, and periodic natural events such as bushfires and drought. (b) Water access entitlement holders are to bear the risk of any reduction in entitlement arising from a bona fide improvement in the knowledge of water systems up to 2014. (c) Risks arising from the improvement of knowledge under comprehensive water plans commencing or renewed after 2014 are to be shared over each 10-year period on the basis that: (i) water access entitlement holders bear the first 3 per cent reduction in entitlement; (ii) state governments and the Commonwealth Government share one-third and two-thirds respectively the reductions between 3 and 6 per cent; and (iii) state governments and the Commonwealth Government share equally reductions greater than 6 per cent.

(d) Governments are to bear the risks of any reduction in entitlements not previously provided for that arises from changes in government policy (for example, new environmental objectives). This obligation is not limited to the period after 2014. (e) Governments may adopt a different risk-sharing formula where all affected parties (including entitlement holders and environmental stakeholders) agree. It should be noted that a ‘reduction in entitlement’ means either as a reduction in water allocations or in the reliability of the entitlement. 16.112 The policy statement of the NWI risk assignment formula was slightly amended by the 2008 Agreement on Murray-Darling Basin Reform.168 Part 10 of that Agreement [page 422] provides that the Commonwealth will assume the Basin States’ liabilities in relation to new knowledge reductions in water availability that exceed 3 per cent of the relevant diversion limit. This Commonwealth liability was to operate only from the expiry of transitional or interim water resource plans, which the Water Act 2007 (Cth) Part 11 provides are state water resource plans made either before January 2007 (transitional) or after January 2007 and before the Basin Plan comes into effect (interim).169 In other words, the Commonwealth’s liability for new knowledge reductions is to operate only from the time that the Commonwealth approved Basin Plan is implemented through water resource plans that are consistent with it. This transfer of liability for compensation payments is not to affect the rights of entitlement holders to receive compensation.

16.113 There are some questions about what exactly the NWI risk assignment propositions mean.170 For example, over what period of time is the percentage reduction in water availability to be calculated? The wording of both NWI para 49 and Part X of the 2008 Agreement on Murray-Darling Basin Reform suggest that it is measured over a 10-year period, most likely equating with the term of a plan or plan review. A further two issues arise in interpreting the scope of the ‘policy’ changes for which government may be liable to compensate. First, it may not be easy to decide whether a reduction in water availability is the consequence of new knowledge or a change in government policy. While some changes of government policy may be the result from a change of governmental decision makers who evaluate the same information differently, some changes may also be in response to new scientific information without a change in decision makers. Second, does the proposition apply to a change in land use policy by a local government authority that impacts on water quality or quantity and results in a change in water allocation policy because of reduced water availability? Perhaps these questions can be answered by interpreting the implementing legislation, but that task is not pursued here. 16.114 Two questions arise in addressing the states’ legislation: (i) whether their existing compensation provisions are consistent with the NWI propositions for the pre-2014 stage; and (ii) whether the states have legislated to implement the post-2014 propositions. We will consider first the existing compensation provisions in respect of the pre-2014 stage, which was described above.171 The New South Wales provisions of ss 87 and 87AA,172 and the Queensland Act’s provisions for compensation on reduction of entitlements and allocations in Chapter 8, Part 3, especially s 986, have arguably provided more generous compensation provisions than the NWI requires because compensation is provided for

[page 423] reduced allocations during the life of the initial plan regardless of the reason; no distinction is made between reductions resulting from improved knowledge or change of policy. As described above at [16.109]–[16.110], the South Australian and Victorian Acts have arguably adopted the agreed alternative of the NWI propositions by generally denying compensation except where the Minister requires the removal of existing works, which could be categorised as a change of policy. The Tasmanian Act’s provisions generally deny compensation if the abrogation of existing rights is necessary to meet the environmental objectives of the plan, but it is not clear whether this precludes compensation if the plan objectives are altered because of a change of policy. The Australian Capital Territory Act makes no provision for compensation for a reduction in water allocations, which is arguably consistent with the NWI because it does not include reductions for change of policy. 16.115 What provision have the states made for compensation on the reduction of water allocations beyond 2014? Only two states, New South Wales and Queensland, have legislated in the provides cited above to implement the NWI provisions on risk assignment. Compensation is expressed to be payable for a change in government policy without qualification, but is only payable for reductions in allocations resulting from improved knowledge if there is in force an agreement between the Commonwealth and New South Wales regarding the payment of the compensation. By contrast, the Victorian Act was amended in 2005 by the insertion of the long-term review and adjustment process agreed with stakeholders as the alternative to the NWI formula. South Australia and the Australian Capital Territory appear not to have legislated for the implementation of the NWI risk assignment provisions. 16.116

The Commonwealth has legislated for the NWI risk

assignment formula in the Water Act 2007 (Cth) Part 2, Div 4, and amended it to implement the Agreement on Murray-Darling Basin Reform by November 2008. The Commonwealth legislation is discussed below at [16.143]. 16.117 We conclude the discussion of the state legislation here by asking how the states and Commonwealth are to share the liability for compensation if a reduction in allocations is due to a change of state policy with which the Commonwealth does not agree. The Water Act 2007 (Cth) is generally intended to operate concurrently with state law and the Basin Plan is intended only to set a maximum quantity of water that may be taken; it does not operate to exclude or limit the operation of a state law that provides for a lower maximum quantity of water that may be taken from a water resource plan area (s 40). Thus, it is suggested that a state alone will incur liability for compensating entitlement holders for a change of policy to the extent that it reduces water allocations below a maximum set under the Basin Plan. The state would still be liable even if it argued that the change was a response to new knowledge.

Commonwealth planning system: content of the MDB Cap and the Basin Plan 16.118 The essential aims of the Cap and the Basin Plan were explained in chapter 14 at [14.27], and the procedures for making each were explained in chapter 15 at [15.93] ff. [page 424] The purpose of the discussion here is to explain the content of each planning instrument. By virtue of the enactment of the Water Amendment Act 2007 (Cth)173 and associated state

legislation adopting the 2008 MDB Agreement, the Cap will have continued operation as the newly named Schedule E until, at least, the Basin Plan is adopted in 2011. Some of the Schedules to the 2008 MDB Agreement, including Schedule E, are to be reviewed and either removed or amended to be consistent with the proposed Basin Plan before it comes into effect.174 The functions performed by the MDB Cap under Schedule F are to be performed by the MDB Authority (‘MDBA’) under the new Schedule E.

The MDB Cap 16.119 Since the adoption of Schedule E to the MDB Agreement in 2008, the ‘Cap’ is defined in general terms for each state,175 except South Australia and the Australian Capital Territory, as the volume of water that would have been diverted from the Basin rivers under ‘baseline conditions’.176 For New South Wales and Victoria, the baseline conditions are defined as the level of development at 30 June 1994 by reference to five factors:177 (a) the infrastructure supplying the water; (b) the rules for water allocation and for operating the applicable water management systems; (c) the operating efficiency of water management systems; (d) existing entitlements to take and use water to the extent that they were used; and (e) the trends in the level of demand for water within and from the Basin. The baseline conditions for Queensland are defined by the Resource Operation Plan first adopted by the Queensland Government in each relevant river valley. The baseline conditions for the Australian Capital Territory are a specified volumetric limit that is subject to an annual adjustment formula. South Australia’s Cap is defined in specific volumetric terms. The 2008 amendment to Schedule E also says, in clause 1, that the purposes of the

Schedule are to establish caps on the consumptive use diversions of all surface water, ‘including, without limitation, water from waterways and distributed surface waters’, which would include overland flow. 16.120 Schedule E, cll 4–12, imposes on the participating states the duty to ensure that diversions within each ‘designated river valley’ do not exceed diversions under their Cap conditions. The valley caps are implemented by each state developing analytical models that applies the baseline conditions to calculate both the long-term average [page 425] annual diversion rate and the annual diversion targets for designated river valleys in their territories. The MDBA is to maintain a ‘Diversion Formula Register’ and apply those formulae for approving the states’ analytical models, and also to calculate the annual diversion targets for New South Wales and Victoria for the upper River Murray. 16.121 Schedule E cll 10 and 12–13 then provide the procedures for monitoring, reporting and evaluating compliance with the Cap. Each state must monitor and report annually on compliance with the designated river valley caps, and on the use and trading of water in all river valleys. The long-term diversion rate is to be altered by the MDBA to reflect the result of water trading and to account for environmental water under the Cap. The MBDA then reports annually on the Cap compliance of annual diversions from designated river valleys and from each state as a whole, and records in the Cap Register the cumulative differences (credits and debits) between actual annual diversions and annual diversion targets from 1 July 1997. Schedule E cll 14–17 then provide for mandatory independent audits until 2009 and audits at MDBA discretion thereafter, plus mandatory special independent audits

in any year if there is non-compliance with the Cap; for example, if the cumulative debit for a designated river valley exceeds 20 per cent of the long-term average annual diversion rate for that valley. Clauses 18–19 provide that, if the special independent audit confirms that a state has exceeded the long-term diversion cap in the designated river valley, the MDBA must declare that the state has exceeded the Cap and report the matter to the Ministerial Council. The state must then report to the Council on why the diversions have exceeded the Cap and the action taken or proposed to be taken to restore the level of cumulative diversions to the level of the Cap. When that is achieved, the MDBA may revoke the declaration. The Cap Register records the annual diversions, Cap compliance measures and restoration of a balance of diversions with Cap compliance. With the adoption of the Basin Plan in November 2012, the monitoring and reporting obligations under the Water Act 2007 (Cth) came into effect.178 However, because the sustainable diversion limits under the Basin Plan (see below at [16.133]) will not come into effect until 2019, there will be a transitional period of continued Cap monitoring and reporting together with that under the Water Act.179 16.122 A simple evaluation of the Cap notices a number of significant weaknesses in its capacity to define and secure sustainable water resources management in the MDB: see also chapter 14 at [14.30]–[14.31]. First, the Cap applied only to consumptive use diversions of surface water; it did not set any limit on abstractions from ground water or interceptions by plantation forestry. Second, the Cap did not purport to be a determination of a sustainable level of diversion and adequate environmental flows. Neither did it provide a plan for the management of environmental water, although the 2008 amendment to Schedule E authorised the Ministerial Council to approve a protocol

[page 426] for the MDBA to alter the Cap to account for the recovery of environmental water.180 Third, both the definition and implementation of the Cap suffered from the lack of a single administrative authority with the clear power to act. The enforcement of the Cap required the consensual action of the states and provided only a political sanction if a state failed to comply. Although the 2011–2012 report on the implementation of the Cap identified an improving level of compliance with the Cap,181 progress under the Cap arrangements did not address the weaknesses identified here and was, in part, the result of actions being taken under the Water Act 2007 (Cth) to prepare for the Basin Plan. 16.123 In any case, the Schedule F Cap (adopted in 2000) was being overtaken by further developments in water policy, notably the NWI and ‘The Living Murray Intergovernmental Agreement’ (‘the Living Murray Initiative’). This latter agreement was signed by the Commonwealth, the Australian Capital Territory, New South Wales, South Australia and Victoria on the same day as the NWI: 25 June 2004.182 Its purpose was to establish a program to address over-allocation in the MDB by funding investments in water recovery (including by investments in water infrastructure and purchase of water on the market), by establishing stateregistered entitlements to the recovered environmental water, and by developing a Basin Environmental Watering Plan to guide the delivery of recovered water to six significant ecological assets. 16.124 By 2006, concern was growing that the MDB Agreement 1992 was outdated and even inconsistent with the NWI and the Living Murray Initiative.183 While there may be no direct inconsistency in a narrow interpretation of their terms, it was suggested that there was inconsistency of a broader sort in that the MDB Agreement 1992 had been overtaken by the policy of the

two later agreements and did not facilitate their implementation; for example, it did not provide for the identification and management of environmental water. A year later, political developments through the Commonwealth Government’s National Plan for Water Security184 led to the enactment of the Water Act 2007 (Cth) and the Commonwealth’s mandate to prepare and implement the Basin Plan. The Commonwealth’s new policy also promised a large injection of funding to support the implementation of the legislative goals.185 Our focus here is the legislative prescription for the content of the Basin Plan, including the evolving requirements of amendments to the Water Act 2007 (Cth). [page 427]

The Basin Plan 16.125 The review of the Basin Plan will follow the same pattern as the review above of the content of the state water allocation plans; namely, an overview of the legislation providing for the plan content, identifying the mandatory and optional content, followed by a discussion of how the Basin Plan is to provide, if at all, for the same key issues of: environmental water allocations; basic rights, including native title; allocating water to consumptive use, including ‘critical human needs’; and assigning risk for future reductions in water availability. As with the discussion of the state plans, we will not here consider the provisions of the Water Act 2007 (Cth) on monitoring and reporting of the implementation of the Basin Plan or of water trading.186

Overview and mandatory/optional content 16.126 The Basin Plan ‘will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area’: Water Act 2007 (Cth) s 19. These limits are called ‘long-term average sustainable diversion limits’ or ‘SDLs’ (s 22(1) item 6 and s 23). The reasons for those limits are indicated by the purpose of the Basin Plan, which is to promote the objects of the Act (s 20); in particular providing for: (a) giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources); and (b) the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and groundwater that may be taken from the Basin water resources (including by interception activities); and (c) Basin-wide environmental objectives for water-dependent ecosystems of the Murray-Darling Basin and water quality and salinity objectives; and (d) the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and … … (g) improved water security for all uses of Basin water resources.

The purpose of giving effect to ‘relevant international agreements’ is re-enforced by a statutory direction in s 21(1)–(2) that the Basin Plan must be prepared so as to give effect to relevant international agreements (including obligations to promote sustainable use of water resources and to conserve biodiversity).187 This direction implements the [page 428] constitutional obligation of the Commonwealth Parliament in legislating under the external affairs power to implement an international treaty; namely, that the legislation implementing a treaty must contain only measures that are proportional to giving

effect to the treaty.188 However, the duty expresses more than the constitutional limit on the parliament; it imposes a duty on the government to give effect to the international obligations in making the Basin Plan. In performing their functions, s 21(4) also requires the Minister and the MDBA to take into account the principles of ecologically sustainable development,189 to act on the basis of best available scientific knowledge and socio-economic analysis, and to have regard to various listed factors such as the NWI. These provisions create clear duties and give the relevant factors to be considered in preparing and approving the Basin Plan. 16.127 Part 2A of the Water Act 2007 (Cth), inserted in 2008, also directs that the Basin Plan must be prepared having regard to the agreement of the Commonwealth and the Basin States, in the MDB Agreement, that ‘critical human water needs are the highest priority water use for communities who are dependent on Basin water resources’ (s 86A(1)). ‘Critical human water needs’ are defined in s 86A(2) as: the needs for a minimum amount of water, that can only reasonably be provided from Basin water resources, required to meet: (a) core human consumption requirements in urban and rural areas; and (b) those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.

The reality is that water cannot be supplied to meet critical human needs unless there is ‘conveyance water’ in the River Murray system to deliver it (s 86A(1)(b) and (4)). Thus, Part 2A mandates that the Basin Plan must provide for a sophisticated three-tier set of water sharing arrangements to ensure that critical human needs water can be delivered. It requires the specification of trigger points for the activation of the different sets of arrangements that would depart from the standard Tier 1 water sharing arrangements expressed in the MDB Agreement, especially ensuring that enough conveyance water is reserved in the storages.

The Basin Plan must also specify the arrangements for monitoring matters relevant to securing critical human needs water. Interestingly, the Act provides that the preparation of the Basin Plan, having regard for critical human needs water, is not to limit the obligations to give effect to the relevant international agreements (s 86A(1)). In times of severe water shortage, it is difficult to see that the two will not conflict. [page 429] 16.128 Apart from the provisions for critical human needs, the mandatory content of the Basin Plan is mostly set out in a Table that includes the following items, which were amended in 2012 and again in 2016 (s 22(1)):190 1. 2.

3.

4. 5. 6.

7.

a description of the Basin water resources and their uses; an identification of the water resource plan areas and the water accounting periods for each of those areas, which are to be aligned as far as possible with the equivalent state areas and accounting periods; an identification of the risks to the condition or continued availability (quality and quantity) of the Basin water resources; the management objectives for the Basin Plan; the management strategies; the ‘maximum long-term annual average quantities of water that can be taken, on a sustainable basis’ from the Basin water resources as a whole and from each water resource plan area — which are to be the ‘long-term average sustainable diversion limits’; the long-term annual average quantities of water that may be taken on a temporary basis from a particular water resource in a water resource plan area in addition to the sustainable

diversion limit — which is to be the ‘temporary diversion provision’; 8. the method for determining whether the diversion limits are being complied with and the extent of any failure to comply; 9. an environmental watering plan; 10. a water quality and salinity management plan; and 11. the requirements for accreditation or adoption of a water resource plan, the basic requirements of which are set out in the Act (s 22(3)). 16.129 The Act avoids other potential complexities in dealing with water quality by providing, at s 22(9)–(12), that the provisions of the Basin Plan can have effect only in relation to the use or management of Basin water resources and can have no effect in ‘directly regulating’ (a term that is defined): land use or planning in relation to land use; the management of natural resources other than water; or the control of pollution. The regulations may prescribe other matters that may be included in the Basin Plan: Water Regulations 2008 (Cth) cll. 2.01 and 2.02 are possible examples.

Environmental water allocations 16.130 The determination and enforcement of the long-term average sustainable diversion limits are of obvious importance to the definition of environmental water allocations and key purposes of the Basin Plan. These limits are discussed below in relation [page 430]

to allocating water for consumptive use. Here, we summarise the Water Act 2007 (Cth) provisions for the Environmental Watering Plan (‘EW Plan’) and its role in the definition and management of environmental water allocations. The Basin Plan 2012 has extensive provisions in Chapter 8 for the Environmental Watering Plan, which are beyond the scope of discussion here. 16.131 The purposes of the EW Plan are to safeguard existing environmental water, plan for the recovery of additional environmental water, and coordinate the management of all environmental water (s 28(1)). The Water Act 2007 (Cth) specifies the mandatory content of the EW Plan, including the objectives for water-dependent ecosystems and the targets by which to measure progress towards achieving those objectives (s 28(2)–(3)). The Authority must also develop ‘environmental watering schedules’ to implement the EW Plan, especially as to environmental watering priorities (s 30). In preparing the EW Plan, the Authority must have regard to any other program for water recovery and environmental watering (s 28(4)), and there must not be any net reduction in the protection of planned environmental water provided under state law (s 21(5)). The Act would not permit a reduction in environmental water allocation in the preparation of the initial Basin Plan. The Basin Plan must also specify the requirements in relation to planning for environmental watering that need to be included in a water resource plan in order to gain accreditation or adoption by the Minister (s 22(3)(e)). The Commonwealth Environmental Water Holder must manage the Commonwealth environmental water holdings in accordance with the EW Plan: s 105(4).

Basic rights, including native title 16.132 The only apparent concern of the Basin Plan with basic

rights is their capacity to give rise to an ‘interception activity’, which is defined to mean ‘the interception of surface water or groundwater that would otherwise flow, directly or indirectly, into a watercourse, lake, wetland, aquifer, dam or reservoir that is a Basin water resource’ (s 4(1)).191 Thus, the Basin Plan must require that a water resource plan provide for the ‘regulation … of interception activities with a significant impact (whether on an activity-by-activity basis or cumulatively)’ on Basin water resources (s 22(3)(d)). Those regulatory provisions may require that interception activities that have or may have significant impacts be assessed to determine whether they are consistent with a water resource plan before they are approved under the laws of a Basin State (s 22(7)). Further, the Basin Plan may say that a water resource plan requires that ‘water access rights’ be held for specified kinds of interception activities. ‘Water access right’ is defined to mean any right conferred by state law to take water, including ‘stock and domestic rights’, riparian rights and water access entitlements (s 4(1)). Thus, the Basin Plan must require that a water resource plan say something about regulating interception activities that significantly impact Basin water resources. It may require that such activities be subject to state approvals, even water access entitlements, which would make the subject water [page 431] part of the consumptive pool. The Basin Plan may also require that a water resource plan provide for the metering of stock and domestic water use to the extent that such metering is necessary for the effective management of the Basin water resources, such as where a particular ground water resource is under stress (s 22(5)). Indigenous rights must be considered in preparing the Basin Plan (s 21(4)(c)(v)), and the requirements for water resource plans must include ‘having regard to social, spiritual and cultural matters relevant to Indigenous people in relation to water

resources within the plan area (s 22(3)(ca)). The MDBA also has the function of engaging the Indigenous community ‘on the use and management of Basin water resources’ (s 172(1)(ia), and a knowledge of Indigenous matters relevant to Basin water resources is a relevant field of expertise for eligibility to be appointed to the MDBA (s 178(3)(h)) and the Basin Community Committee (s 202(5)(c)). The Native Title Act 1993 (Cth) is not affected by the Water Act 2007 (Cth) (s 13).

Allocating water to consumptive use 16.133 One of the purposes of the Basin Plan is ‘improved water security for all uses of Basin water resources’ (s 20(d)). Arguably, the principal contribution that the Basin Plan can make to that purpose is to set diversion limits that are sustainable and address the problems of over-allocation and over-use. We will consider here how the Act provides for the making of diversion limits in the Basin Plan and in water resource plans, and how it provides for addressing the problems of over-allocation and over-use. As background to this discussion, we note briefly the essential SDL provisions of the Basin Plan and notable amendments made to the Water Act 2007 (Cth) provisions for SDLs in the course of approving the Basin Plan. As described above, the Basin Plan is to set the ‘long-term average sustainable diversion limits’ for the Basin water resources as a whole and for the water resources of each water resource plan area or for a particular part of those water resources (s 23 and Basin Plan Chapter 6). The SDLs may be specified either as a particular quantity of water per year, a formula or method for calculating a quantity of water per year, or in a way that the Authority determines is appropriate (s 23(2)). Importantly, the Act declares that the SDLs ‘must reflect an environmentally sustainable level of take’ (s 23(1), emphasis added). The Basin Plan 6.04 declares the surface water SDL for the whole MDB to be 10,873 GL per year, which reflects a reduction of 2,750 GL per year from the estimated 2009 baseline diversion limit adopted in the Basin Plan. The MDBA estimated that 1,547 GL per

year had been recovered for the environment by 30 June 2012. Basin Plan Schedules 2 and 4 declare the SDLs for the water resource plan areas, described as ‘SDL resource units’. It is notable that many of the ground water SDL resource units received higher SDLs than the baseline diversion limts, leading to a Basin-wide ground water SDL of 3,334 GL per year.192 The SDLs are due to come into operation in 2019: Basin Plan 6.04(1). The political complexities surrounding the setting of SDLs in the making of the Basin Plan were addressed by including in the Basin Plan Chapter 7 an SDL ‘adjustment [page 432] mechanism’ to defer the final determinations of the SDLs: see chapter 15 at [15.108] ff. The mechanism could be described as a minor amendment process, with a less demanding procedure than the normal amendment process under ss 45–48. It is also distinct from the provision for a minor amendment process contemplated by s 49 to be provided by regulations: Water Regulations 2008 (Cth) reg 2.03. The Water Act 2007 (Cth) was amended193 to authorise the mechanism in conjunction with reviews of the Basin Plan in consultation with local communities to gather more information, including for the management of climate change risks (Basin Plan 6.06). The provision for the requirements for the state water resources plans was also amended to provide for incorporation of a relevant SDL adjustment into a state water resource plan (s 22(6A) and (6B)). The adoption of this new adjustment mechanism saw the Act’s original transitional mechanism for mitigating socio-economic impact, the temporary diversion provision under s 24, abandoned in the Basin Plan with zero provision for each SDL resource unit (Basin Plan 6.07). A temporary diversion provision could allow a transition period for reducing diversions to the SDL when that limit is lower than ‘the long-term average quantity of water that has in fact been being

taken’ (s 24(1)). The design of the SDL adjustment mechanism and deferral of operation till 2019 rendered the temporary diversion provision redundant. The SDL adjustment mechanism could operate in three ways: Basin Plan 7.01(2). First, it enables the MDBA to propose projects to achieve limited adjustments to the SDLs of particular water resource plan areas and to propose to the Minister formal amendment to the Basin Plan to account for those adjustments on the water resource plan areas and the overall Basin SDL. The statutory amendments authorised the process of selecting the SDL adjustment proposals and, consequentially, of amending the provisions for the Basin Plan (ss 23A and 23B). Those project proposals, to be subsidised by public funds and to come into operation by 2024, could be characterised as ‘supply measures’ (that increase environmental outcomes with less water, so making more water available for consumptive use and increasing the SDL volume) or ‘efficiency measures’ (that deliver socio-economic outcomes with less water, so making more water available to the environment and decreasing the SDL): see also chapter 15 at [15.108]. It was estimated that these measures could generate, respectively, 650 GL/year and 450 GL/year of total SDL adjustments (Basin Plan 7.09). Second, by Chapter 7, Part 4, there could be adjustments relating to ground water resource units based on better information about the ground water resources. The first and second adjustment methods were limited to a cumulative amendment (increase or decrease) of the whole of Basin SDL of no more than 5 per cent (Water Act s 23A(4) and Basin Plan 7.19 and 7.26) and a requirement that a SDL produced after the adjustment ‘must [still] reflect an environmentally sustainable level of take’ (Water Act s 23A(3)(b)). This concept is discussed further below. [page 433]

Third, Basin Plan 6.05 defines ‘SDL resource unit shared reduction amounts’ for surface water resource units within five zones of the MDB, each zone with its own ‘reduction target’ that was shared around the resource units within the zone. By Chapter 7, Part 3, the MDBA could make adjustment proposals relating to ‘shared reduction amounts’ that would distribute those reductions across the surface water resource units within the same zone so as to meet the same zone reduction target and without effecting a reduction to any particular resource unit greater than first provided. While the amendments of the Water Act 2007 (Cth) ss 22(6A) and (6B), 23A and 23B have the appearance of creating an ongoing minor amendment process by the SDL adjustment mechanism, the reality is that the adjustment mechanism was created specifically to address the political complexity of the initial setting of the SDLs, especially of minimising socio-economic impacts or meeting the statutory command that the SDLs ‘must reflect an environmentally sustainable level of take’ (s 23(1), emphasis added). As Foerster says: It provides an opportunity for short-term review of the SDL to consider whether the same environmental outcomes can be achieved with less water; and whether more environmental outcomes can be achieved with neutral socio-economic impact. However, it does not allow consideration of whether more environmental water is required to achieve an environmentally sustainable level of take.194

16.134 That term is defined (s 4(1)): environmentally sustainable level of take for a water resource means the level at which water can be taken from that water resource which, if exceeded, would compromise: (a) key environmental assets of the water resource; or (b) key ecosystem functions of the water resource; or (c) the productive base of the water resource; or (d) key environmental outcomes for the water resource.

The Act s 4 also defines ‘environmental assets’ to include ‘(a) water-dependent ecosystems; and (b) ecosystem services; and (c) sites with ecological significance’, and defines ‘environmental outcomes’ to include ‘(a) ecosystem function; and (b) biodiversity;

and (c) water quality; and (d) water resource health’. The Act does not define a process for ascertaining these attributes other than directing the MDBA to ‘act on the basis of the best available scientific knowledge and socio-economic analysis’ (s 21(4)(b)). The Basin Plan itself defines ‘Criteria for identifying an environmental asset’ (Sch 8) and ‘Criteria for identifying an ecosystem function’ (Sch 9). The term ‘productive base’ is not defined in the Act, but it is employed in the Basin Plan (para 10.20) in a way that illustrates a meaning associated with maintenance of sustainable yield of ground water resources. In the course of preparing the Basin Plan, the MDBA also published reports that attempted to explain how it arrived at its recommendations for an ‘environmentally sustainable [page 434] level of take’ (‘ESLT’), including an exegesis of the interpretation of the terms of the Act.195 It is apparent that, from late 2011, the MDBA was developing an ‘adaptive management approach’ to setting the ESLT and SDLs. Any legal assessment of the definition of the ESLT concept applied in the Basin Plan is best made by a detailed review of the Basin Plan provisions against the Act’s provisions, especially ss 23, 23A and 23B, a review that is not possible here. As explained above at [16.133], ultimately the outcomes of the SDL adjustment mechanism ‘must reflect an environmentally sustainable level of take’ and the total Basin adjustment percentage is to be no more than 5 per cent (s 23A(3) (b) and (4)). 16.135 The deal struck in the Basin Plan did not satisfy South Australia and environment groups, which still wanted 3200 GL/year to be returned to the environment. On 31 October 2012, shortly before the adoption of the Basin Plan, the Federal Water Minister introduced to the Commonwealth Parliament a Bill196 to

‘establish a special account (A$1.77 billion) to fund projects to recover an additional 450 GL/year for the environment and to implement measures to ease or remove constraints on the efficient use of environmental water’.197 The Water Amendment (Water for the Environment Special Account) Act 2013 (Cth) inserted Part 2AA into the Water Act 2007 (Cth), which authorises standing appropriations of funds to the Special Account for 10 years (2014– 2024) so that they may be spent on enhancing the environmental outcomes that can be achieved by the Basin Plan, especially ones beneficial to the lower reaches of the Murray River (s 86AA(1)–(2)). The catch is that the Special Account funds may only be expended on projects or purposes relating to supply or efficiency measures for the adjustment of SDLs under s 23A according to the criteria prescribed by the Basin Plan (ss 86AA(3) and 86AD(4)). Those criteria again are that the ‘supply contributions’ achieve ‘equivalent environmental outcomes’ and that the ‘efficiency contributions’ achieve neutral or improved socio-economic outcomes’ (Basin Plan 7.17). Of course, it is the efficiency contributions that can see more water delivered to the environment, but only if the the project or measure achieves neutral or improved socio-economic outcomes. Part 2AA is a statutory commitment of funding, ‘not a statutory commitment to recover a certain amount of water to realise a different SDL’ and does not alter an evaluation of whether the Basin Plan achieves ‘an environmentally sustainable level of take’.198 16.136 Is this legislative direction of ‘an environmentally sustainable level of take’ in s 23(1), repeated in 23A(3)(b), justiciable? Could a court of law entertain an action [page 435] for judicial review on the ground that the Commonwealth Minister has approved a diversion limit for the Basin Plan as a

whole or for a water resource plan area that does not reflect an ELST? The Federal Court of Australia would have the jurisdiction to hear such an application for judicial review. It is unlikely that such an application for judicial review of the Minister’s decision to adopt a Basin Plan would be available under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because such a decision may be characterised as ‘legislative’ and not ‘of an administrative character’ and, thus, not a decision to which that Act applies.199 However, judicial review of the Minister’s decision would be available under s 39B of the Judiciary Act 1903 (Cth) or simply by application for a declaration under the Federal Court Act s 21, though review of a legislative decision is subject to a ‘much sterner onus’ than review of an administrative decision: see Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; Donohue v Australian Fisheries Management Authority (2000) 60 ALD 137. If the Federal Court were to entertain such an action, what may be the grounds of review, would a breach of the legislative direction necessarily give rise to an invalid approval, and what remedy might the court give? Before venturing a brief opinion on these questions, it is useful to consider how the statutory definition might be approached. 16.137 How would a court identify the key environmental features for the purposes of applying the definition of ELST? As a matter of statutory interpretation, the key environmental features to be protected will be identified in the Basin Plan, especially the EW Plan.200 However, that still leaves the interesting question whether a court of law would review a sustainable diversion limit specified in the Basin Plan on the argument that it is at a level that ‘would compromise’ those key environmental features. Foerster’s analysis suggests that there is an argument that the approved surface water SDLs in the Basin Plan ‘do not provide enough water to meet the water requirements of key environmental assets and ecosystem functions that have been identified by the Authority as

critical to achieving an environmentally sustainable level of take’.201 She argues that similar arguments of scientific critique could be made in respect of the ground water SDLs.202 The question is whether these types of scientific critique may engage judicial review scrutiny that confines the scientific discretion of the MDBA and the Commonwealth Minister on the basis of general scientific concepts and propositions comprised in the statutory language of ESLT. 16.138 A number of grounds of review could be argued in respect of this statutory criterion. Is it a jurisdictional fact that could be determined by a court, so that the [page 436] Minister has no authority to approve a Basin Plan that does not meet this criterion.203 It is easier to apply this argument to a criterion that pertains to a preliminary stage of decision making that has procedural consequences for the manner of making a final determination. It is much harder to apply this doctrine to the review of a final deliberative determination involving a value judgment, especially in the adoption of a subordinate legislative instrument that is subject to parliamentary disallowance. Other potential lines of argument, equally difficult to make, may be that the approval is unreasonable or irrational or that there is no evidence of other material to justify the decision to adopt the particular diversion limit, or that there has been a failure to consider relevant considerations and evidence.204 There are also arguments that the constitutional requirements that the relevant international agreemens be implemented have not been fulfilled.205 16.139 Even if one of these lines of argument were upheld, it does not follow that the court would invalidate the adoption of the Basin Plan. As with the environmental water allocation in the

Gwydir River case (Nature Conservation Council of New South Wales Inc v The Minister Administering the Water Management Act (2005) 137 LGERA 320; [2005] NSWCA 9 at [90]–[95]),206 the court may apply Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 to say that the Act’s declaration of environmental sustainability is not intended to lead to the consequence of legal invalidity of the Basin Plan, especially if a challenge were brought long after the approval of the Basin Plan — perhaps as a means of challenging the validity of an action done under it or defending an enforcement action for beach of the Basin Plan.207 Further, what may be an appropriate remedy? A declaration would leave the Plan in place but susceptible to non-enforcement. An order that the Plan be set aside would leave the Minister subject still to the legal duty to make the Plan, and so it should be made again. It is unlikely that a court would go further and actually direct the Minister as to what would be an ESLT. Yet, parliament’s direction should be given some effect because of the fundamental importance of achieving sustainability in the MDB and the clear legislative concern with that goal displayed in the Act’s objects and the statement of Basin Plan purposes (s 3(d)(i) and 20(b)). 16.140 The concept of ‘environmentally sustainable level of take’ is also crucial to one of the Act’s key objects ‘to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused’ (s 3(d)(i), emphasis added). Those terms are also defined (s 4(1)). [page 437] overallocation: there is an overallocation for a water resource plan area if, with full development of water access rights in relation to the water resources of the area, the total volume of water able to be extracted by the holders of water access rights at a given time exceeds the environmentally sustainable level of take for those water resources. (Italics in original, bold emphasis added.) overuse: there is an overuse for a water resource plan area if the total volume of water

actually taken for consumptive use from the water resources of the area at a given time exceeds the environmentally sustainable level of take for those water resources.208 (Italics in original, bold emphasis added.)

Clearly, the determination and implementation of sustainable diversion limits through the Basin Plan is fundamental to addressing these problems. Yet, despite all the political anxiety expressed during the making of the Basin Plan, no legal action was taken to challenge the terms of the Basin Plan as not fulfilling the mandate of the Water Act 2007 (Cth). In fact, the only legal challenge mounted, Lee and Gropler v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174, unsuccessfully attacked the Water Act as being unconstitutional; leave to appeal to the High Court was refused: [2015] HCATrans 123. The judicial reasoning in the case reveals some uncertainties about the implementation of the SDLs in fulfilment of the s 23(1) mandate. The plaintiffs argued that the enactment of the Water Act placed restrictions on their water entitlements contrary to ss 99 and 100 of the Commonwealth Constitution, and also claimed damages under the Water Act ss 254 and 100 for loss alleged to have occurred by reason of the Water Act abridging their water property rights. As explained in chapter 5 at [5.24] and [5.38], the plaintiffs’ argument foundered on the Federal Court’s view that s 100 was not enlivened against the Water Act SDL provisions because they were supported by an exercise of legislative power under Constitution s 51(xxix), external affairs, not under the s 51(i) interstate trade and commerce power. Further, the Federal Court pointed out that the operation of the SDLs under the Basin Plan did not immediately impact on any individual entitlement holder. The Commonwealth had adopted policies of buying water from willing sellers in the market or investing in efficiency schemes to provide water to the environment: [2014] FCAFC 174 at [20], [56]– [58]. By the Basin Plan 6.13, the Commonwealth assumed all the risk in the reduction of SDLs under the Water Act s 75. If the Commonwealth failed to achieve its water recovery target, there would be no non-compliance by a State or an entitlement holder

with the Basin Plan: Basin Plan 6.12(4). Would the Commonwealth thereby fail to fulfil the command that the SDLs must reflect an ESLT? 16.141 In addition to setting the diversion limits, the Act directs that the Basin Plan must require a water resource plan to set the ‘long-term annual diversion limit’ for the water resources of the water resource plan area. Importantly, there is no provision that the Basin Plan must require a water resource plan to define a consumptive pool [page 438] or pools in order to be accredited or adopted (s 22(3)). The Water Act 2007 (Cth) initially defined ‘consumptive pool’ but did not employ the concept in its operative provisions,209 and neither does the Act require that a water resource plan provide for periodic water allocations. Rather, it requires only that a water resource plan provides for ‘the sustainable use and management of the water resources’ within the long-term annual diversion limit (s 22(3)(c)). This may be surprising given the importance of the concepts of a consumptive pool and periodic allocations to the implementation of the NWI regime, especially in defining water access entitlements as a share of the available water determined in accordance with a plan after provision of environmental water. It is even more surprising given that these plan criteria need not apply in relation to a water resource plan area if the requirements are not relevant (s 22(4)). Perhaps the reason for not expressly requiring the adoption of these NWI concepts through the Basin Plan is that it is foreseen that some water resource plan areas may not be managed by the application of these concepts under state law. 16.142 Last, the Act is ambivalent about addressing interceptions by plantation forestry. The definition of ‘interception activity’,

given above at [16.132] in relation to basic rights, does not obviously include interceptions by plantation forestry. The only other pertinent references to the effects of plantation forestry would appear to be the requirement that the Basin Plan identify risks to the continued availability of Basin water resources that arise from ‘changes in land use’ (s 22(1), item 3, para (c)), and the requirement that a water resource plan include ‘broad approaches to the way risks to the water resources of the water resource plan area should be addressed’ (s 22(3)(h)). A water resource plan must include requirements for the regulation of interception activities with a significant impact (on an activity-by-activity basis or cumulatively) on water resources (s 22(3)(d)), which may require assessment of the activities and requirements for water access rights to be held for specified kinds of interception activities (s 22(7)). It is possible that the Commonwealth limited the potential reach of the Basin Plan to plantation forestry because of the perceived constitutional constraint that denies the Basin Plan any effect that would directly regulate land use (s 22(10)).

Assigning risk for future reductions in water availability 16.143 The NWI risk assignment formula and the 2008 MDB amendments to it are set out above at [16.111] and [16.112].210 The Water Act 2007 (Cth) Part 2, Div 4 risk assignment provisions, as amended in 2008, give effect to the policy propositions in relation to the operation of the Basin Plan in the MDB, with the Commonwealth accepting all the new knowledge reductions in entitlements exceeding 3 per cent after 2014 in respect of those states that have adopted the NWI risk assignment formula in their own legislation. If a state has not accepted the NWI formula, the Commonwealth [page 439] will still pay compensation for its share of the reduction in

entitlements according to that formula, whether or not the state will be liable for compensation payments. There are a few points to note about the Water Act 2007 (Cth) provisions. First, they do not operate in relation to the Commonwealth applying the NWI risk assignment formula outside the MDB; that will depend on separate arrangements between the relevant state and the Commonwealth. Second, Subdivision A is directed to reductions in entitlements that result from a reduction in water allocations or their reliability occasioned by a reduction in diversion limits. Subdivision B, however, is directed to changes in reliability of water allocations occasioned by a change in the Basin Plan other than a reduction in diversion limits. Third, the compensation payable is for the reduction in market value of the water access entitlement that has suffered a reduction. Finally, the Act carefully qualifies the right to compensation from the Commonwealth so that it applies to a water access entitlement holder whose entitlement was granted: before January 2007; or under a transitional water resource plan (that is, one made before January 2007); or after January 2007 and before the Basin Plan takes effect but not in respect of an over-allocated resource; or after the Basin Plan takes effect and in accordance with the Basin Plan (ss 77(1) and 83(1)). These qualifications are designed to indicate that the Commonwealth is accepting liability to compensate for reductions to historical entitlements (those granted under the pre-January 2007 regime) but thereafter only for entitlements granted under a regime that the Commonwealth certifies as not perpetuating overallocation by the states. As noted above at [16.140], by the Basin Plan 6.13, the Commonwealth assumed 100 per cent of the risk in the reduction

of SDLs under the Water Act 2007 (Cth) s 75 on the basis of new Commonwealth policy.

1.

A copy of the NWI is available on the archived website of the National Water Commission: . It is also available on the website of the Australian Government Department of Agriculture and Water Resources: and follow links to ‘Water policy and resources’, ‘Water management policy and legislation’ and ‘National Water Initiative’.

2.

NWI para 23. Italics are in the original, indicating terms that are defined by the NWI. Italics are in the original. The term ‘consumptive pool’ is discussed later in this chapter: see below at [16.65].

3. 4. 5.

NWI paras 38 and 39. NWI Schedule E, paras 1(i)–(x) and 2.

6.

The terms ‘overallocation’ and ‘overuse’ are defined in NWI Schedule B and are considered below at [16.83]. All references in this section are to the Water Management Act 2000 (NSW), unless otherwise noted.

7. 8. 9.

10.

11.

12. 13.

14.

The Water Management Act 2000 (NSW), Dictionary, defines ‘basic landholder rights’ to mean domestic and stock rights, harvestable rights or native title rights. Water Management Act 2000 (NSW), Dictionary. It includes a ‘bulk access regime’ as referred to in s 20(1)(e), or by a Minister’s plan, and includes a bulk access regime as varied by the Minister under s 45. A Foerster, ‘Managing and protecting environmental water: Lessons from the Gwydir for Ecologically Sustainable Water Management in the Murray-Darling Basin’ (2008) 25 Environmental and Planning Law Journal 58. The amendments were made by the Water Resources and Other Legislation Amendment Act 2014 (Qld), enacted during the term of the Newman Government, which was delayed in promulgation by the new Palszczuk Government in early 2016 in order to permit a review and further reform under the Water Legislation Amendment Act 2016 (Qld) and the Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (Qld). The course of the legislative amendments is explained in the Second Reading Speeches by the Hon A J Lynham, Minister for State Development and Minister for Natural Resources and Mines, and the Hon S J Miles, Minister for the Environment and Heritage Protection, Parliament of Queensland, Hansard, 9 November 2016, pp 4352–4363. A Gardner, R Bartlett and J Gray, Water Resources Law, LexisNexis Butterworths, Sydney, 2009. The term ‘water allocation’ is defined in the Schedule 4 Dictionary to the Act as ‘an authority granted under s 146 or 147 of the Act’. In essence, ‘water allocations’ are the NWI share entitlement. The term ‘water entitlement’ is defined in the Schedule 4 Dictionary to the Act as ‘a water allocation, interim water allocation or water licence’.

15.

A ‘seasonal water assignment’ is defined in the Schedule 4 Dictionary to the Act as the assignment for a water year of the benefit of a water entitlement.

16.

Natural Resources Management Act 2004 (SA) s 76, which was extensively amended by the Natural Resources Management (Water Resources and Other Matters) Amendment Act 2007 (SA) s 18, and further amended by Natural Resources Management (Commercial Forests) Amendment Act 2011 (SA). See discussion of ‘consumptive pools’ below at [16.65] ff.

17. 18. 19.

See discussion below of ‘allocating water to consumptive use’ at [16.65] ff and for environmental water allocations at [16.20] ff. All subsequent references in this section are to this Act unless otherwise indicated.

20. 21.

See discussion of this issue in chapter 15 at [15.70]. NWI Schedule B(i) and (ii).

22.

Some scientific and practical propositions regarding environmental water allocations are considered in A Gardner, ‘Environmental Water Allocations in Australia’, Environmental and Planning Law Journal, Vol 23, 2006, pp 210–212. NWI para 35.

23. 24. 25.

26.

27. 28.

29.

30.

31. 32. 33.

All references in this section are to the Water Management Act 2000 (NSW) unless otherwise specified. Sections 8(1)(a) and (2) and 20(1)(a), as originally enacted. Section 20(1)(a) required a management plan to establish environmental water rules ‘in relation to each of the defined classes of environmental water referred to in section 8(1)’. Sections 8(1)(a) and (2) and 20(1)(a), as amended by the Water Management Amendment Act 2004 (NSW). The new definitions of the classes of environmental water and the 2005 amendments are discussed below. Water Management Amendment Act 2005 (NSW) s 3 and Sch 1 [1], [2] and [3], inserting ss 8(1A) and 8A–8E and amending s 20(1)(a). The decision was based on the pre-2004 terms of ss 8 and 20(1)(a), which affected the court’s decision as to the necessary content of the EWA but not the duty to make one: see [2005] NSWCA 9 at [79]–[89]. Spiegleman CJ may have made an error here. At para 19, the plan is quoted as saying that approximately 56 per cent of the long-term average annual flow in this water source (estimated to be 875,400 megalitres per year) will be preserved and will contribute to the maintenance of basic ecosystem health, thus leaving 44 per cent of the water allocated to human consumption. See also I Millar, ‘Testing the Waters: Legal Challenges to Water Sharing Plans in NSW’, paper presented to Water Law in Western Australia, conference hosted by the Environmental Defenders Office of WA, 8 July 2005. Act no 118 of 2005, assented to on 7 December 2005. Personal communication from I Millar, Environmental Defenders Office (NSW), solicitor for the Nature Conservation Council, December 2005. The court held that the 2004 amendments did not apply to a management plan made before they came into operation so as to alter the requirements of the environmental water rules: Nature Conservation Council of New South Wales Inc v The

Minister Administering the Water Management Act [2005] NSWCA 9 at [89]. 34.

35.

Water Management Act 2000 (NSW) ss 8(1)(a) and (2) and 20(1)(a), as amended by the Water Management Amendment Act 2004 (NSW). Environmental water also includes provision in s 8(1)(b) for ‘adaptive environmental water’, which is water committed by the conditions of access licences for specified environmental purposes, either generally or specifically. While a management plan must provide for access licences to be issued with conditions relating to adaptive environmental water, it is clear that the issue of such licences remains a matter of ministerial discretion: Water Management Act 2000 (NSW) s 63. Water Management Amendment Act 2005 (NSW), inserting s 8(1A). Also, ss 8A–8E govern the exercise of ministerial discretion in relation to adaptive environmental water and in relation to converting water under access licences to planned environmental water.

36. 37.

See discussion in chapter 15 at [15.23]. See Foerster, 2008, Chapter 16, n 11, p 65.

38.

See the alternative view in F Coffey, ‘Assessment of Water Resource Plans under the Water Act 2000 (Qld): …’ (2001) 18 Environmental and Planning Law Journal 419 at 414–15, citing D Fisher, ‘Considerations, Principles and Objectives in Environmental Management in Australia’ (2000) 17 Environmental and Planning Law Journal 487 at 494. All subsequent references in this section are to the Natural Resources Management Act 2004 (SA) unless otherwise indicated.

39. 40. 41.

The concept of ‘consumptive pool’ under the Natural Resources Management Act 2004 (SA) is considered below at [16.70]. A ‘water access entitlement’ is, as defined in s 146(2), an entitlement under a water licence to access a share of water available in the consumptive pool or pools to which the licence relates and in accordance with the relevant water allocation plan.

42. 43.

None of the other objectives pertain as specifically to water resources. See above at [16.28]–[16.30].

44. 45.

All subsequent references in this section are to this Act, unless otherwise stipulated. The objectives also include the Schedule 1 objectives of the Resource Management and Planning System of Tasmania, which includes promoting sustainable development.

46.

See also, the Second Reading Speech on the Water (Resource Management) Act 2005 (Vic), Parliament of Victoria, Hansard, Legislative Assembly, 6 October 2005, p 1334. All subsequent references in this section are to the Water Act 1989 (Vic) unless otherwise indicated. These provisions were amended by the Water (Governance) Act 2006 (Vic), Act no 85 of 2006, s 26 ff; the Water Amendment (Entitlements) Act 2010 (Vic), Act no 32 of 2010, ss 40–41; and by the Water Amendment (Victorian Environmental Water Holder) Act 2010 (Vic), Act no 50 of 2010. A detailed analysis of the historical evolution of the Victorian ‘environmental water reserve’ concurs with this assessment: see A Foerster, ‘Victoria’s New Environmental Water Reserve: What’s in a Name?’ (2007) 11 Australasian Journal of Natural

47.

Resources Law and Policy 145. 48. 49.

50. 51. 52.

53.

54.

55. 56. 57.

The former s 52 provision for in-stream use licences has been repealed by s 26 of the Water (Resource Management) Act 2005 (Vic). Government of Victoria, Department of Environment, Land, Water and Planning website at and follow links to ‘Planning and entitlements’ and ‘Victoria’s Entitlement Framework’. All subsequent references in this section are to the Rights in Water and Irrigation Act 1914 (WA) unless otherwise specified. ‘Use and development’ is defined in such a way as to focus on human uses: s 4(2). A Gardner, ‘Water Resources Law Reform in Western Australia — Implementing the CoAG Water Reforms’ (2002) 19 Environmental and Planning Law Journal 15. See also A Gardner, ‘Environmental Water Allocations in Australia’ (2006) 23 Environmental and Planning Law Journal 253. Government of Western Australia, Department of Water, ‘Statewide Policy No 5: Environmental Water Provisions Policy for Western Australia’, 2000, reviewed in 2005. This policy is still current in 2017. Gardner, 2002, p 20. See also J Jensen and A Gardner, ‘Legal Duties for Environmental Water Provisions in Western Australia’ (2017) 42(1) UWA Law Review 206. J Jensen and A Gardner, ‘Legal Duties for Environmental Water Provisions in Western Australia’ (2017) 42(1) UWA Law Review 206. Australian Capital Territory, Water Resources Environmental Flow Guidelines 2013, Disallowable Instrument DI2013-44, replacing the 2006 Guidelines. Water Management Act 2000 (NSW) s 55.

58. 59.

NWI para 55. See also paras 56 and 57. See Water Management Act 2000 (NSW) ss 52–54; Water Act 1989 (Vic) s 8(1), (4) (c), (5) and (5A). See also Ashworth v Victoria [2003] VSC 194; (2003) 125 LGERA 422.

60. 61.

Water Management Act 2000 (NSW) s 54. Water Act 1989 (Vic) s 51(1)(ba).

62.

Water Act 2000 (Qld) s 101(b), and see ss 94(a) and 96(1); Natural Resources Management Act 2004 (SA) s 124(2), (4)(b), (5), (6), (6a) and (7); Water Management Act 1999 (Tas) ss 7(1), 48(4) and (5), and 50. Water Act 2000 (Qld) ss 93(f), 94, 97, 98 and 99. A water plan may also confer such authorisations: s 102.

63. 64. 65.

See below at [16.105] ff. See above at [16.26] ff.

66.

This may be implied from a reading of ss 76(4)(b) and 146(2) of the Natural Resources Management Act 2004 (SA). Given that these rights extend to taking water for any use, they extend beyond domestic and stock purposes, but the right is still founded on the land title and does not, under the Act, require a licence. The right to take ground water is subject to regulation or the taking being contrary to a water management plan: ss 48(5)

67.

and 50. 68.

69.

A ‘prior right’ is defined broadly in s 3 to mean a right to take water under the Act which was in force immediately before the publication of a notice under s 18 that a water management plan is to be prepared. The stock and domestic rights are provided in s 8(1).

70. 71.

Natural Resources Management Act 2004 (SA) s 124(7). Water Management Act 1999 (Tas) s 50.

72. 73.

Water Management Act 2000 (NSW) s 57(1)(k). Water Management Act 2000 (NSW) s 20(2).

74. 75.

Natural Resources Management Act 2004 (SA) s 9 and Chapter 6. Water Management Act 2000 (NSW) ss 55, 5(3)(b) and 9.

76.

77.

A ‘native title holder’ is defined in the Dictionary to the Water Management Act 2000 (NSW) to mean ‘a person who holds native title rights in relation to those waters pursuant to a determination under the Native Title Act 1993 of the Commonwealth’. Water Act 1989 (Vic) s 32A(3)(g).

78. 79.

Natural Resources Management Act 2004 (SA) s 7(3)(h). Natural Resources Management Act 2004 (SA) s 76(4)(c).

80. 81.

Water Act 2000 (Qld) s 2(2)(d). Water Act 2000 (Qld) s 43.

82. 83.

Water Act 2000 (Qld) Dictionary, definition of ‘owner’ of land. See chapter 13 on native title rights to water.

84. 85.

Water Act 2000 (Qld) s 96. Water Act 2000 (Qld) ss 95 and 100.

86.

S Jackson & M Langton, ‘Trends in the Recognition of Indigenous Water Needs in Australian Water Reform: The Limitations of “Cultural” Entitlements in Achieving Water Equity’ (2011) 22 Water Law 109; V Marshall, Overturning Aqua Nullius: Securing Aboriginal Water Rights, Aboriginal Studies Press, Acton, 2017. NWI Schedule B(i): Glossary of Terms. Italics in the original.

87. 88. 89.

NWI Schedule B(i): Glossary of Terms. NWI paras 28 and 37(ii), and see definition of ‘water access entitlement’ in Schedule B.

90. 91.

NWI para 33(i). NWI paras 55–57, which are discussed above at [16.50] in relation to basic rights.

92.

The NWI defines ‘water system’ as ‘a system that is hydrologically connected and described at the level desired for management purposes (for example, subcatchment, catchment, basin or drainage division and/or ground water management unit, sub-aquifer, aquifer, ground water basin)’: NWI Schedule B(i). NWI Schedule E, para 1(viii).

93. 94.

See also discussion of ‘bulk access regime’ in the Second Reading Speech to the Water Management Bill 2000 (NSW), Parliament of New South Wales, Legislative

95. 96. 97.

98.

Assembly, 22 June 2000, p 7498 ff. The NWI share entitlement in Queensland is called a ‘water allocation’: see chapter 12 at [12.8]. Water allocations are defined by Water Act 2000 (Qld) s 143 ff. The term ‘water sharing rules’ is defined in the Dictionary to the Act and discussed below at [16.75]. See Dictionary definition of ‘water sharing rules’ and Water Regulation 2016 (Qld) cll 27–30 and Sch 5, made under the Water Act 2000 (Qld), which provide for the making and implementation of water sharing rules for certain water management areas (mainly for ground water) under water licences rather than under water allocations. Original source of information by personal communication from Mr Russ Robson, Queensland Department of Natural Resources and Water, 30 October 2008, to Alex Gardner.

99. See discussion of this in chapter 18 at [18.15]. 100. NWI para 29 and Schedule E, para 1(viii). Italics in original. 101. Available water determinations are briefly explained by C Herbert, ‘Risk of Future Reduction in Water Availability from the Consumptive Pool: Current Issues and Approaches in New South Wales’ (2005) 22 Environmental and Planning Law Journal 431 at 433–434. 102. A person who acquires a water allocation by a transfer need not hold a water licence. See also the definition of ‘water allocation’ in s 3(1). 103. On issuing a water share, the Minister must determine the class of reliability of the share, thus determining different priorities: see s 33G(c). 104. Bulk entitlements are granted only to authorities such as water corporations which have functions to supply water or some other product (for example, electricity) to other persons: see s 34. 105. See Water Act 1989 (Vic) s 43, relating to the order that establishes a bulk entitlement as a volumetric share. 106. Government of Victoria, Department of Environment, Land, Water and Planning website: and follow links to ‘Planning and entitlements’ and ‘Victoria’s Entitlement Framework’. Statutory ministerial powers to qualify rights are conferred by ss 33–33AAC. 107. CoAG, Communiqué of February 1994 Meeting, Attachment A, p 103, para 4(d), available at the website of the National Competition Council relating to National Competition Policy: . 108. Agriculture and Resource Management Council of Australia and New Zealand and Australian and New Zealand Environment and Conservation Council, National Principles for the Provision of Water For Ecosystems, July 1996, pp iii–iv. 109. Ibid, principle 4. 110. Ibid, principle 5. 111. Ibid, principle 9. 112. Agriculture and Resource Management Council of Australia and New Zealand, Standing Committee on Agriculture and Resource Management Water Allocations

and Entitlements: A National Framework for the Implementation of Property Rights in Water, 1995, Executive Summary. 113. Ibid, p 5. 114. For example, see Agreement with Western Australia in National Competition Council, Second Tranche Assessment of Governments’ Progress in Implementing National Competition Policy, Volume Two, Water Reform: Western Australia (June 1999), Attachment 1, pp 59–69 of document, available online at