Water Resources Law

Description

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