Water law reform in Australia and South Africa: Sustainability, efficiency and social justice

Journal of Environmental Law

Volumn 17, Issue 2, 2005, Pages 181-205

  Godden, Lee ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

LEGISLATION; REFORM PROCESS; SOCIAL JUSTICE; SUSTAINABILITY;

AFRICA; AUSTRALASIA; AUSTRALIA; EASTERN HEMISPHERE; SOUTH AFRICA; SOUTHERN AFRICA; SUB-SAHARAN AFRICA; WORLD;

EID: 26844442332     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/envlaw/eqi016     Document Type: Review

References (181)

1. These reforms have primarily covered inland, freshwater resources. While the complex interrelation between marine areas and freshwater resources is recognised this article concentrates on inland freshwater.
2. 'Recognising that the ultimate aim of water resource management is to achieve the sustainable use of water for the benefit of all users.' Preamble, National Water Act No 36 of 1998, Republic of South Africa. For Australia, for example, see Water Act 2000 (Qld) section 10(1) 'The purpose of this chapter is to advance sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water.'
3. Judge A. Gildenehys, 'A New Water Law Dispensation', 10 Butterworths Property Law Digest 13 (1999) at 14.
4. T. Norton, 'Sustaining Natural Resources and Biological Diversity in Terrestrial Ecosystems of Rural Australia' in A. Robertson and R. Watts (eds), Preserving Rural Australia: Issues and Solutions (1999) 51.
5. In Australia see, for example, the sites listed pursuant to the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 [1975] ATS No 48. For a discussion of Ramsar sites in South Africa see A.E.F. Heydorn, 'Human Population Growth, Land-Use Planning and Wise Wetland Management: A Challenge for the Future', paper was presented in March 1996 to Technical Session A of the 6th Meeting of the Conference of the Contracting Parties in Brisbane, Volume 10/12 of the Brisbane Proceedings. Available at http://www.ramsar.org/archives_heydorn.htm (accessed 5.12.03).
6. D. Fisher, Water Law (LBC, 2000) at 3.
7. For South Africa see A. Rabie, 'Water for the Environment', 61 THRHR 16 (1998) at 116.
8. P. Cullen et al, Blueprint for a Living Continent: A Way Forward from the Wentworth Group of Concerned Scientists (2002) at 5. http://www.wwf.org.au/downloads/blueprint_for_a_living_continent.pdf (accessed 5.10.03).
9. J. Pigram, Issues in the Management of Australia's Water Resources (Longman, 1986) 32-44.
10. National Land and Water Resources Audit, Australian Natural Resources Atlas: Water, Water Resources an Overview 2002. http://audit.ea.gov.au/ANRA/water/water_frame.cfm?region_type= AUS®ion_code=AUS&info=resources (accessed 5.10.03).
11. Ibid.
12. P. Cullen et al, supra n 7 at 5.
13. 'The largest consumer of water was the agricultural sector, totalling 15,502 GL and 70% of net water use in Australia in 1996-97. Australian Bureau of Statistics, Australia Now, 7 edn, http://www.abs.gov.au/Ausstats/abs%40.nsf/ (accessed 5.10.03).
14. On average 24,000 GL of Australia's water is used per year. Water usage has increased by 9,400 GL/yr or 65% since 1985. National Land and Water Resources Audit, http://www.nlwra.gov.au/about.htm (accessed 5.10.03).
15. Thirty-four of 325 basins and 59 of 538 groundwater management units are assessed as being highly or overdeveloped. Ibid.
16. Council of Australian Governments [CoAG], Communiqué (3.11.00).
17. See, for example, G. Taylor, The Australian Environment (Especially as Controlled by Rainfall: A Regional Study of the Topography, Drainage, Vegetation and Settlement, and of the Character and Origin of the Rains (Melbourne: Government Printer; 1918).
18. COAG, National Water Initiative Discussion Paper (19.3.04).
19. P. Cullen et al, supra n 7. The Wentworth group consists of very prominent Australian environmental scientists and policy makers. The group have been influential in that many of the advocated reforms have been adopted by various Australian government bodies.
20. Ibid at 2.
21. Ibid at 4.
22. 'Agriculture' in South Africa Yearbook 2002/3, South African Government Communication and Information Site http://www.gcis.gov.za/docs/ publications/yearbook.htm (accessed 4.12.03).
23. Ibid.
24. Op Cit.
25. R. Stein, 'South Africa's New Democratic Water Legislation: National Government's Role as Public Trustee in Dam Building and Management Activities', 8 Colorado Journal of International Environmental Law & Policy 284 (2000) at 285.
26. J. Perkins, 'Partioning Water Use in South Africa' in Australian Academy of Technological Sciences and Engineering, Proceedings of the 2003 Invitation Symposium, Water the Australian Dilemma, (November 2003) at 147.
27. R. Stein supra n 24 at 286.
28. R. Kasrils, Minister of Water Affairs and Forestry, 'Foreword' in D. Reed and M. Dewit (eds), Towards a Just South Africa: The Political Economy of Natural Resource Wealth, WWF (Macroeconomics Program Office, April 2003) at 2.
29. C. Willis et al, 'Review of Policies and Legislation Influencing the Sustainable Use of South Africa's Indigenous Woodlands', 7 South African Journal of Environmental Law and Policy 171 (2000) at 189.
30. South Africa Yearbook 2002/3, South African Government Communication and Information Site http://www.gcis.gov.za/docs/publications/ yearbook.htm (accessed 4.12.03).
31. R. Peart and K. Govender, 'Natural Resource Policies for the New Millennium', 8 South African Journal of Environmental Law and Policy 39 (2001) at 51.
32. South African Yearbook 2002/3, op cit.
33. R. Stein, supra n 24 at 285.
34. Peart and Govender, supra n 30 at 51.
35. H. MacKay, 'Water Policies and Practices' in D. Reed and M. Dewit (eds), Towards a just South Africa: The Political Economy of Natural Resource Wealth WWF (Macroeconomics Program Office, April 2003) at 49-53.
36. Ibid at 54.
37. 'The availability of water has, and will remain, central to the nature and direction of Australia's development.' Commonwealth Parliament, Senate Standing Committee on National Resources Report, The Commonwealths' Role in the Assessment, Planning Development and Management of Australia's Water Resources (AGPS, 1978) at 3.
38. J. Pigram, supra n 8 at 59.
39. The emphasis upon defined channels reflects the European experience and practices and reiterates the need for control and confinement to establish a 'right'.
40. As Tan notes many of the English court decision reflected different hydrological regimes. See P. Tan, 'Legal Issues Relating to Water Use' in Land and Water Australia: Property Rights and Responsibilities, Current Australian Thinking (AGPS 2002) 13-42 at 15.
41. P. Tan, ibid at 16.
42. J. Powell, Watering the Garden State Water, Land and Community in Victoria 1834-1988 (Allen & Unwin 1989) at 100-4.
43. An initial Australian model is the Irrigation Act 1886 (Vic) which vested the rights to water in the Crown in right of Victoria and enabled the Crown to control the flow and use of defined waters. Versions of this 'model' were adopted in other Australian jurisdictions. For a discussion see D. Fisher, supra n 6 at 92.
44. Tan, supra n 39 at 16.
45. Separation of water from the underlying land title is a key reform. See CoAG, Report of the Working Group on Water Resource Policy to the Council of Australian Governments (unpublished, February 1994).
46. See for example, section 19, Water Act 2000 (Qld) 'All rights to the use, flow and control of all water in Queensland are vested in the State.'
47. New South Wales v Commonwealth (1975) 135 CLR 337.
48. The Constitution does not provide the Commonwealth with a specified head of power under s 51 to legislate for water. The only reference to water resources in the Constitution is in s 100 which 'protects states rights to interstate trade and the use of rivers for conservation. e. water storage] and irrigation. However, the interstate trade and commerce power extends to river navigation section 98.
49. For an overview see J. Crawford, 'The Constitution and The Environment' 13 Sydney Law Review 11(1991).
50. For a discussion of the complexities of state sovereignty over water resources and the need to rely on intergovernmental agreements in relation to the Murray-Darling basin see S. Clark, 'The Murray-Darling Basin: Divided Power, Cooperative Solutions?' 22 ARELJ 67 (2003) at 67-70.
51. A. Curtis and M. Lockwood, 'Natural Resource Policy for Rural Australia' in J. Pratley and A. Robertson (eds), Agriculture and the Environmental Imperative (CSIRO Publishing, 1998) 211.
52. See the prominent role played by the MMBW and the State Rivers and Water Supply Commission in the management of water resources. J. Powell, op cit at 193-232.
53. J. Powell, supra n 41 at 233-40.
54. J. Powell, supra n 41 at 294.
55. D.Fisher, supra n 6 at 132.
56. J. Powell, supra n 41 at 232.
57. W. Sewell, 'Comprehensive Water Planning: An Agenda for Change' in W. Sewell, J. Handmer and D.I. Smith (eds), Water Planning in Australia: From Myths to Reality (Centre for Resource and Environmental Studies, ANU, 1985) 3 at 7.
58. J. Pigram, supra n 8 at 62.
59. P. Tan, supra n 39 at 17.
60. A. Gardner, 'The Legal Basis for the Emerging Value of Water Licences: Property Rights or 'Tenuous Permissions', 10 Australian Property Law Journal 1 (2003) at 4.
61. Ibid.
62. Industry Commission, Water Resources and Waste Water Disposal Report No 26 (AGPS, 17.7.92) at 57.
63. K. Green, Water 2000: A Perspective on Australia's Water Resources to the Year 2000 (AGPS Canberra, 1983) v-viii.
64. D. Fisher, supra n 6 at 270. Victoria is implementing significant changes to its water legislation which will take effect in 2005.
65. Tan, supra n 39 at 21.
66. Earlier inquiries were, Industry Commission, Measuring the Performance of Selected Government Enterprises (1990),
67. and Industry Commission, Water Resources and Waste Disposal (1992).
68. CoAG Water Resource Policy clause 3(a) (i).
69. CoAG Water Resource Policy clauses 4, 5.
70. CoAG Water Resource Policy clause 4.
71. CoAG Water Resource Policy clause 5.
72. CoAG Water Resource Policy clauses 6(g), 7(b), 8(b).
73. CoAG Water Resource Policy clause 6(b).
74. CoAG Water Resource Policy clause 8.
75. J. McKay and H. Bjornlund, 'Recent Australia Market Mechanisms as a Component of an Environmental Policy' in Land and Water Australia: Property Rights and Responsibilities, Current Australian Thinking (AGPS, 2002) 137 at 138.
76. See for example, Department of Natural Resources and Environment, State of Victoria, Healthy Rivers, Healthy Communities and Regional Growth: Victorian River Health Strategy: Environmental Flows (2002).
77. National Competition Council, Assessment of Governments' Progress in Implementing the National Competition Policy and Related Reforms, Volume Two: Water Reform (2002).
78. Council of Australian Governments, 'Intergovernmental Agreement on Addressing Water Over-Allocation and Achieving Environmental Objectives in the Murray-Darling Basin' at http://www.coag.gov.au/meetings/250604/ index.htm (accessed 7.8.04).
79. Council of Australian Governments, 'Intergovernmental Agreement on a National Water Initiative' [NWI] at http://www.coag.gov.au/meetings/ 250604/index.htm (accessed 7.8.04).
80. See Schedule C, CoAG Agreement, ibid.
81. Clause 10 NWI Agreement.
82. For example, Tasmania was not a signatory to the June 2004 CoAG agreements.
83. CoAG Communiqué 25 June 2004 at http://www.alga.asn.au/newsRoom/ communiques/COAG20040625.php (accessed 10.7.04).
84. See for example, section 3, Water Management Act 2000 (NSW), 'The objects of this Act are to provide for the sustainable and integrated management of the 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...'.
85. P. Cullen, J. Whittington and G. Fraser, Likely Ecological Outcomes of the COAG Water Reforms (AGPS, 2000).
86. See Ch 2, Water Management Act 2000 (NSW) and Ch 2, Part 3, Water Act 2000 (Qld).
87. See for example, Catchment Management Authorities Act 2003 (NSW).
88. For an overview see Land and Water Australia: Research Report (June 2003), Environmental Water Allocation: Principles, Policies and Practices http://www.lwa.gov.au/downloads/PR030541.pdf.
89. For example, sections 5-11, Water Resources Act 1998 (ACT).
90. See section 8, Water Management Act 2000 (NSW): 'For the purposes of this Act, "environmental water" comprises the following: (a) water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose ("planned environmental water"); (b) water that is committed by the conditions of access licences for specified environmental purposes, either generally or at specified times or in specified circumstances ("adaptive environmental water").'
91. P. Tan, 'Water Law Reform in NSW 1995-99', 20 EPLJ 165 (2003) at 169.
92. CoAG, supra n 77.
93. For example, sections 966-72 Water Act 2000 (Qld).
94. For example, Catchment and Land Protection Act 1994 (Vic).
95. For example see B. Hart, 'Victoria's Experiences with Catchment-Style Water Management and the CMA System', Paper delivered at Tasmanian Conservation Trust Conference, Protecting Our Liquid Assets (Hobart, Tasmania, 27.8.04, at http://www.tct.org.au/edo1.htm (accessed 8.1.05)).
96. For an overview on vegetation clearance see, Proceedings, Environmental Defenders Office Network Conference, I Can See Clearly Now...Land Clearing and Law Reform (Sydney, July 2002).
97. Section 123, Water Act 2000 (Qld). Relationship between resource operations plan and water allocation. A water allocation is subject to the resource operations plan for the plan area where the water is taken.
98. Section 129, Water Act 2000 (Qld).
99. Section 206, Water Act 2000 (Qld).
100. See for example, section 60, Water Management Act 1999 (Tas). 'A licence, including the right to a water allocation endorsed on it, is the personal property of the licensee and is alienable in accordance with Division 4 or 6 and any other law relating to the passing of property.'
101. CoAG Communiqué (25.6.04) at http://www.alga.asn.au/newsRoom/ communiques/COAG20040625.php.
102. Section 148, Water Act 2000 (Qld).
103. Land and Water Australia, 'An Effective System of Defining Water Property Titles' (AGPS, Canberra, March 2004).
104. Clause 50, NWI Agreement, CoAG, supra n 77.
105. Murray-Darling Basin Ministerial Council, Integrated Catchment Management in the Murray-Darling Basin 2001-10: Delivering a Sustainable Future (AGPS, Canberra, 2001).
106. CoAG, Discussion Paper on National Water Initiative (AGPS, 19.3.04) at 3.
107. 'South Africa's water law comes out of a history of conquest and expansion. The colonial law makers tried to use the rules of the well-watered colonising countries of Europe in the dry and variable climate of Southern Africa. They harnessed the law, and the water, in the interests of a dominant class and group which had privileged access to land and economic power.' Department of Water Affairs and Forestry, White Paper on a National Water Policy (Pretoria: Government Printer, 1997). This paper represents the policy of the South African Government, as approved by Cabinet (30.4.97) at http://www.polity.org.za/html/ govdocs/white_papers/water.html?rebookmark=1#Preamble (accessed 24.11-03).
108. Department of Water Affairs and Forestry, ibid.
109. C. Calfee, 'Some for All For Ever: Defending the Constitutionality of South Africa's National Water Act of 1998', 7 UC Davis J Int'l & Policy 57 (2001) at 61.
110. See for example, Water Act (54 of 1956) South Africa.
111. Lyster and P. Lazarus, 'The Problem with Groundwater in South African Law', 112 South African Lam Journal 440 (1995) at 443.
112. C. Calfee, supra n 107 at 69.
113. R. Lyster and P. Lazarus, supra n 109 at 446.
114. J. Perkins, supra n 25 at 148.
115. 'Apartheid Legislation distorted access to natural resources, denying the majority of South Africans the use of land, water, fisheries, minerals, wildlife and clean air.' Department of Water Affairs and Forestry, supra n 105 at 28.
116. J. Perkins, supra n 25 at 148.
117. 'Traditionally, the public trust has protected the public's reasonable access to water, including for example, the right of the public to gain access to rivers for recreational use such as canoe portage. While South African courts have historically taken a very narrow view of these public rights, renewed commitment by government to its public trust obligation means that South African law will return to its source and adopt a broad purposeful understanding of the public's rights.' Department of Water Affairs and Forestry, supra n 105 at 30.
118. Objects clause, Water Act 1998 (SA).
119. Department of Water Affairs and Forestry, supra n 105 at 30.
120. For a discussion of the need for wide ranging legislative reform in the instance of groundwater see R. Lyster and P. Lazarus, supra n 109 at 451-2.
121. H. MacKay, 'Water Policies and Practices' in D. Reed and M. Dewit (eds), supra n 34 at 49.
122. A. Rabie, 'Government Policy Reviews and Reforms Relating to the Environment', 6 SAEJLP 121 (1999).
123. Department of Water Affairs and Forestry, Fundamental Principles and Objectives for a New Water Law in South Africa (Pretoria: Government Printer, 1997).
124. T. Le Quesne, 'The Divorce of Environmental and Economic Policy under the first ANC Government 1994-1999', 7 SAJELP 11 (2000) at 12.
125. R. Stein, supra n 24 at 364.
126. A. Seetal, 'Compulsory Licensing to Redress Inequities of the Past: Conditions for Success' in Community Empowerment in Basin Management, World Summit on Sustainable Development (28.8-3.9.03, Johannesburg, South Africa).
127. Section 9, Constitution of the Republic of South Africa Act 108 of 1996.
128. Section 27, Constitution of the Republic of South Africa Act 108 of 1996. (1) 'Everyone has the right to have access to - health care services, including reproductive health care; sufficient food and water,... (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.'
129. Ch One, Constitution of the Republic of South Africa 1996.
130. S 24 Constitution of the Republic of South Africa 1996.
131. S 25 Constitution of the Republic of South Africa 1996.
132. E Witbooi, 'Restrictive Environmental Measures: (When) Do they Justify Compensation for the Property Owner?' 8 SAJELP 215 (2001) at 216.
133. Section 80, Water Act 1998.
134. D. Reed and M. Dewit (eds), supra n 27 at Foreword.
135. Act 108 of 1997 and Act 36 of 1998 respectively.
136. See Water Research Commission, South Africa Annual Report 2002/3 at 2. http://www.wrc.org.za/publications/annualreport/2003/default.asp (accessed 10.11.03).
137. Address by Ronnie Kasrils, Minister of Water Affairs and Forestry, South Africa to the SADC/E9 Ministerial Meeting on Health and Sustainable Development (Johannesburg, 21.1.02).
138. J. Perkins, supra n 25 at 148.
139. Section 3, Water Act 1998.
140. R. Stein, op cit at 288-9.
141. C. Willis et al, supra n 28 at 195.
142. A. Rabie, supra n 120 at 115.
143. Section 3(2), Water Act 1998
144. Principle 10, Department of Water Affairs and Forestry supra n 105.
145. Ch 3, Part 3, Water Act 1998
146. Rabie, supra n 120 at 113.
147. Department of Water Affairs and Forestry, supra n 105.
148. Section 12, Water Act 1998.
149. Section 18, Water Act 1998, 'The Minister, the Director General, an organ of state and a water management institution, must give effect to the Reserve as determined in terms of this Part when exercising any power or performing any duty in terms of this Act.'
150. Section 13, Water Act 1998.
151. Section 19(1), Water Act 1998 'Prevention and remedying effects of pollution'.
152. See Ch 2, Water Act 1998.
153. R. Peart, op cit at 53.
154. Ch 5, Part 1, Water Act 1998
155. South Africa Yearbook 2002/3, op cit.
156. C. Willis, supra n 28 at 191.
157. Section 21, Water Act 1998.
158. H. MacKay, supra n 34 at 54-55.
159. Section 27 (1), Water Act 1998.
160. Section 36 (1), Water Act 1998.
161. Section 22, Water Act 1998.
162. Sections 32-35, Water Act 1998.
163. Sections 4, 22, Water Act 1998.
164. Section 22(6), Water Act 1998 'Any person who has applied for a licence in terms of section 43 in respect of an existing lawful water use as contemplated in section 32, and whose application has been refused or who has been granted a licence for a lesser use than the existing lawful water use, resulting in severe prejudice to the economic viability of an undertaking in respect of which the water was beneficially used, may, subject to subsections (7) and (8), claim compensation for any financial loss suffered in consequence.'
165. Section 23(1), Water Act 1998 'Subject to the national water resource strategy the Minister may determine the quantity of water in respect of which a responsible authority may issue a general authorisation and a licence from water resources in its water management area...; (5) In making a determination under subsections (1) and (2) the Minister must take account of the water available in the resource.'
166. H. MacKay, supra n 34 at 54.
167. A. Gildenhys, supra n 3 at 14.
168. H. MacKay, supra n 34 at 80.
169. For a critique of the land reform process in Africa see A. Manji, 'Commodifying Land, Fetishising Law: Women's Struggles to Claim Land Rights in Uganda', 19 Australian Feminist Law Journal (2003) at 81.
170. C. Willis, supra n 28 at 186.
171. E. Lahiff, 'Land Policies and Practices' in D. Reed and M. Dewit (eds), supra n 27 at 85.
172. C. Willis, supra n 28 at 187.
173. The proportion of households having access to clean water increased to 85% in 2001. Policy Coordination and Advisory Services (PCAS), The Presidency, October 2003 - South African Government Communication and Information Site http://www.gcis.gov.za (accessed 5.12.03).
174. H. MacKay, supra n 34 at 82.
175. G. Harris, 'Smart Water Policy: The Research Challenges, in Australian Academy of Technological Sciences and Engineering Limited', Water the Australian Dilemma (Proceedings of the 2003 Invitation Symposium, 2003) at 254.
176. G. Carter, 'Remembering Water: Overcoming Historical Amnesia in South Africa', 8 Colo J Intl Env L & Pol'y (1997) 359 at 364.
177. J. Harris et al, 'Water Resource Quality Policy: The Approach adopted by the Department of Water Affairs and Forestry under the Water Law Principles', 39 Water Science Technology (1999) 31 at 34.
178. J. McKay and H. Bjornlund, supra n73 at 138.
179. Hon. Mr W. Truss, 'Ministerial Address' in Australian Academy of Technological Sciences and Engineering Limited, Water the Australian Dilemma (Proceedings of the 2003 Invitation Symposium, 2003) at 161.
180. M. Dyson, 'Using Existing Legislation to Recover and Protect Environmental Flows in the River Murray' in Land and Water Australia: Property Rights and Responsibilities, Current Australian Thinking (AGPS, 2002) at 73.
181. Clause 23 NWI Agreement, CoAG, supra n 77.