Water and the Law

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Disputes concerning the regulation and use of water in the Murray-Darling Basin have now reached a critical point where extended periods of extreme drought and climate change have forced threats of High Court litigation. Whilst a number of similar threats have been made since settlement, no court has ever made an authoritative judgment on such water disputes. As such, many important questions about the rights of States and their residents to take and use water remain unresolved. Professor Williams and Matthew Lee assess both the genesis and development of water law in Australia in order to provide an explanation of how we have arrived at this current water crisis.

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Water and the Law

  1. 1. The Environment Institute Where ideas grow Professor John Williams and Matt Lee Water and the Law
  2. 2. Professor John Williams + Matt Lee
  3. 3. THE UNCERTAIN APPLICATION OF BRITISH LAW IN THE COLONIES Property Rights and Usufructuary Rights: A “Fugitive Resource”? There is no private ownership of running waters. Rather rights to take and use water for certain purposes (usufructuary rights) have developed both at common law and through statute.
  4. 4. THE UNCERTAIN APPLICATION OF BRITISH LAW IN THE COLONIES Riparian Rights and Equitable Utilisation A riparian owner has the right to use as much as he wishes of the water flowing past his land for ‘ordinary’ purposes which include all domestic uses and the watering of stock. For other purposes, known as ‘extraordinary uses’, a riparian owner may use water provided that (i) the use is reasonable, (ii) the use does not cause a ‘sensible’ alteration in the quality or quantity of the natural flow as it passes on to lower riparian owners, and (iii) the water is used on the riparian tenement. Rights to use water in other circumstances or in greater quantities may only be conferred by statute, grant or prescription. English authority allows a riparian owner to obtain an injunction against any other riparian owner who uses water in excess of these limits, even though the plaintiff has no use for the water diverted and suffers no actual or threatened damage. Ian A Renard, ‘The River Murray Question: Part III – New Doctrines for Old Problems’ (1971) 8 Melbourne University Law Review 625, 647-8. See: H Jones and Co Pty Ltd v Kingborough Corp (1950) 82 CLR 282; Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317.
  5. 5. THE UNCERTAIN APPLICATION OF BRITISH LAW IN THE COLONIES Territorial Sovereignty and Prior Appropriation There is no such thing as a riparian law between independent States … [t]here is no principle which limits the rights of a State or its citizens to the use of waters flowing through the State. Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 887. Enforcement of rights to take and use water through State legislation – what common law rights survive? – Sandford Clark and Ian Renard.
  6. 6. FEDERATION: A PROBLEM LEFT UNRESOLVED The Convention Debates Polarised Positions: •NSW – A right to take all the water in the River Murray and its tributaries – Reid, Barton, Deakin and Higgins •South Australia – Riparian rights and preservation of navigation – Gordon, Downer and Symon High Court and Inter-State Commission
  7. 7. FEDERATION: A PROBLEM LEFT UNRESOLVED Section 98 Constitution The 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. Section 100 Constitution The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. A Search for Clarification by the High Court
  8. 8. INTERGOVERNMENTAL AGREEMENTS: MOVING TO COOPERATION •River Murray Waters Agreement (9 September 1914) •Murray-Darling Basin Agreement (1 October 1982) •Murray-Darling Basin Agreement (24 June 1992) •National Water Initiative (and National Water Commission) (25 June 2004) •Murray-Darling Basin Agreement (December 2008) and Water Act 2007 (Cth) •The Murray-Darling Basin Plan 2011
  9. 9. INTERGOVERNMENTAL AGREEMENTS: MOVING TO COOPERATION The Water Act 2007 (Cth) and Referral of Powers to Commonwealth, s51(xxvii) •Part 1A: Murray-Darling Basin Agreement; •Part 2A: Critical Human Water Needs; •Part 4: Basin Water Charge and Water Market Rules; •Part 4A: Extended Operation of Basin Water Charge and Water Market Rules; •Part 10A: Transitional Matters Relating to Murray-Darling Basin Commission; •Part 11A: Interactions with State Laws.
  10. 10. A NATIONAL WATER MARKET AND THE CURRENT CRISIS A National Water Market – Putting Water to its Most Valuable and Productive Uses Section 92 of the Constitution: On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. Section 92 and the Victorian 4% Interim Threshold Limit Future Directions
  11. 11. The Environment Institute Where ideas grow Next Seminar: 11 December Professor Mark Biggs Nanotechnology for the environment

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