Water resources law reform in Western Australia - Implementing the CoAG water reforms

Environmental and Planning Law Journal

Volumn 19, Issue 1, 2002, Pages 6-33

  Gardner, Alex ^a  

^a UNIVERSITY OF WESTERN AUSTRALIA   (Australia)

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EID: 36749021206     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (185)

1. Act No 49 of 2000, assented to 28 November 2000.
2. The Commission is established under the Water and Rivers Commission Act 1995 (WA). Under the State government's Machinery of Government reforms, it is to become part of the structure of the new Department of Environment, Water and Catchment Protection: Government of Western Australia, Machinery of Government Task Force Report, Government Structures for Better Results, June 2001, Pt 3, Environment and Heritage, pp 129-138. The full Report is available at: http://ww2.slp.wa.gov.au/publications/publications.nsf/Inquiries+ and+Commissions?openpage
3. See, for example, some of the documents published by the Water and Rivers Commission of Western Australia at its "Water Resources Law Reform" website: http://www.wrc.wa.gov.au/about/reform.html
4. Legislative Council of Western Australia, Report of the Standing Committee on Legislation in relation to the Rights in Water and Irrigation Amendment Bill 1999. Report 51. ISBN 0 7307 6412 5.
5. Communiqué of the Council of Australian Governments meeting, Febraury 1994, Attachment A, Water Resource Policy. These aspects of the Water Reform Framework Agreement are set in paras 4 and 5 of the Agreement, which are extracted in Appendix 1 to this article.
6. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
7. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
8. National Water Quality Management Strategy: from Natural Resources Management webpage of the Department of Agriculture, Fisheries and Forestry. http://www.affa.gov.au/docs/nrm/water/water_reform/nwqms/nw qms_toc.html and http://www.ea.gov.au/water/quality/nwqms/index.html#quality National Action Plan for Salinity and Water Quality: < http://www.affa.gov.au/docs/nrm/actionplan/index.html>.
9. RiWIA s 2.
10. RiWIA s 3.
11. RiWIA s 3(2).
12. RiWIA s 2.
13. This question was posed to me by Sandy Boulter, Solicitor, Environmental Defender's Office (WA), September 2001.
14. D Fisher, Water Law, LBC Information Services, 2000, p 67.
15. D Fisher, Water Law, LBC Information Services, 2000, p 67.
16. The water quality protection provisions of the former Pt IIIA of the RiWIA were repealed in 1986 by Act No 77 of 1986, accompanying the enactment of the Environmental Protection Act 1986 (WA).
17. See A Gardner and T Setter, "Legal Powers and Responsibilities for Managing Diffuse Pollution from Agriculture: Regulating the Flow of Water, " (1998) 5(2) Australasian Journal of Natural Resources Law and Policy 187-224.
18. The former ss 8(1) and 26 of the RiWIA.
19. RiWIA s5(1).
20. D Fisher, Water Law, LBC Information Services, 2000, p 67.
21. Water Management Act 2000 (NSW), s 392.
22. Water Act 1989 (Vic) s 7(1).
23. Water Management Act 2000 (NSW) ss 53 and 54.
24. The Victorian government's proposals to require licences for irrigation farm dams is set out on the website of the Department of Natural Resources and Environment: http://www.nre.vic.gov.au/-click on Land and Water Management, Water, Irrigation Farm Dams.
25. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
26. D Fisher, Water Law, LBC Information Services, 2000, p 67.
27. By Sentencing Act 1995 (WA) s 40(5), a body corporate is liable to a maximum penalty five times that specified for an individual unless the statute itself specifies the level of penalty for a corporation.
28. The former ss 11, 26A and 26B of RiWIA.
29. RiWIA s 5(2).
30. Prescription by regulation of surface and underground water management areas is a new regulatory tool introduced by the Rights in Water and Irrigation Amendment Act 2000.
31. RiWIA ss 5B and 26L.
32. RiWIA s 2.
33. The significance of these rights needs to be understood in light of the practice of granting freehold land surveyed back from major watercourses so that the owners cannot exercise the riparian rights because they do not own the banks of the watercourse.
34. Mining Act 1978 ss 48(d), 66(d), 70J(d), 85(c), 91(1) and Mining Regulations 1981 reg 42B(i).
35. Land Administration Act 1997 s 267 and 91. The Conservation and Land Management Act 1984 appears not to authorise the grant of rights to take water.
36. R Bartlett, "A Comparative Examination of Crown Rights and Private Rights to Water in Western Australia: Ownership, Riparian Rights and Ground Water" in R Bartlett, A Gardner and S Mascher, Water Law in Western Australia: Comparative Studies and Options for Reform, Centre for Commercial and Resources Law, The University of Western Australia, 1997, 35 at
37. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
38. This list does not include water taken under authority of other legislation.
39. As will be explained later in the article at heading "Private and other (common) rights in water resources, " the exact terms of the basic rights vary in and outside of the surface water management areas.
40. Surface water management areas are proclaimed under s 6. Underground water management areas area proclaimed under s 26B(1).
41. RiWIA ss 5C(2) and 27. These regulations may be made by the Governor: Interpretation Act 1984 (WA) s 40.
42. RiWIA s 26L.
43. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
44. Former RiWIA ss 17, 26A & 26B.
45. Former RiWIA s 25.
46. RiWIA ss 11, 17 & 17B.
47. RiWIA ss 20, 21 & 21A.
48. RiWIA s 17(4b).
49. RiWIA ss 26A(1), 26B(3) and 26D.
50. The definitions of "owner" and "occupier" applicable to the RiWIA are given in the Water Agencies (Powers) Act 1984 s 3, and incorporate the definition of "owner" in the Local Government Act 1995 s 1.4.
51. RiWIA s27A.
52. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
53. But not for watering stock being raised under intensive conditions; that is, raising stock in small areas with hand feeding.
54. RiWIA s 25A.
55. RiWIA s 26C(2).
56. The right to access water from a public road or reserve for limited purposes. RiWIA ss 10 and 21.
57. RiWIA ss 9(3), 10(2), 20(5) & 21(3).
58. RiWIA ss 20(1) and 21(2).
59. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
60. Former RiWIA s 8(2).
61. RiWIA s 5B.
62. RiWIA s 5E(1)(b).
63. RiWIA s 2(1).
64. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
65. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
66. These questions are considered in A Gardner and T Setter, "Legal Powers and Responsibilities for Managing Diffuse Pollution from Agriculture: Regulating the Flow of Water" (1998) 5(2) Australasian Journal of Natural Resources Law and Policy 187-224, at 198-208.
67. RiWIA s 5E(1)(a) & (2)(a).
68. RiWIA s 5E(2)(b).
69. RiWIA s 5E(3).
70. RiWIA ss 26GC and 26GD.
71. RiWIA s 26GB.
72. The text of s 4 is set out in Appendix 2.
73. The Agreement is set out in the Schedule to the National Environment Protection Council Act 1994 (Cth) and 1996 (WA). Section 3 of the Agreement is titled "Principles of Environmental Policy. "
74. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
75. The definition of the principle in s 391(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) reads: "that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. "
76. Tuna Boat Owners' Association of SA Inc v Development Assessment Commission [2000] SASC 238 25
77. 110 LGERA 1-13.
78. For example, Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (Sp Ct of WA, Wheeler J) (1997) 93 LGERA 436 and Bridgetown-Greenbushes Friends of the Forests (Inc) v Department of Conservation and Land Management (WA) (Full Court of the Sp Ct of WA, different case) (1997) 94 LGERA 381.
79. Tuna Boat Owners' Association of SA Inc v Development Assessment Commission [2000] SASC 238 and Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (Sp Ct of WA, Wheeler J) (1997) 93 LGERA 436.
80. The Water and Rivers Commission Act 1995 (WA), the Water Agencies (Powers) Act 1984 (WA) and the former RiWIA.
81. RiWIA s 26H(1).
82. RiWIA Sch 1, cl 39(2)(a)(iii), relating to claims to compensation.
83. For example, RiWIA Sch 1, cl 7(2).
84. Water Management Act 2000 (NSW) s 5.
85. Water Management Act 2000 (NSW) s 9(1)(a).
86. Water Management Act 2000 (NSW) s 5(3).
87. The New South Wales equivalent of riparian rights, the (limited) rights to take unconfined surface water and native title rights: Water Management Act 2000 (NSW) Ch 3, Pt 1.
88. Water Management Act 2000 (NSW) s 9(1)(b).
89. Sustainable Land and Water Resources Management Committee, Subcommittee on Water Resources, Occasional Paper SWR No 3, July 1996. Also, see Advice to the Minister for Environment from the Environmental Protection Authority of WA on Water Allocation and Perth's Water Future Strategy (EPA Bulletin 903, August 1998) and on Harvey Basin Surface Water Allocation Plan (EPA Bulletin 910, November 1998).
90. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
91. Re Drake (No 2) (1979) 2 ALD 634 at 640-1, per Brennan J (as he then was, as President of the Administrative Appeals Tribunal).
92. This issue is considered further below.
93. This issue is considered further below.
94. This section is adapted from an earlier commentary on the same provisions of the Bill: A Gardner, "Developments in the Whole-of-Government Management of Terrestrial Water Resources" (2000) 29 UWAL Rev 116 at 128-133.
95. RiWIA Pt III, Div 3D.
96. RiWIA s 26GW(2).
97. RiWIA s 26GX(2).
98. RiWIA s 26GY(2).
99. RiWIA ss 26GW(3), 26GX(3) and 26GY(3).
100. The Policy can be found at the Water and Rivers Commission's website on Water Law Reform http://www.wrc.wa.gov.au/about/reform.html.
101. RiWIA ss 26GZ-26GZF.
102. RiWIA s 26GZC.
103. RiWIA ss 26GZD & 26CZE.
104. RiWIA s 26GZE. The Minister may also delegate to the Commission the power to approve plans.
105. RiWIA s 26GZF.
106. RiWIA s 26L(3)(e).
107. A Gardner, "Planning for Integrated Natural Resources Management, " (1996) 26(2) UWA L Rev 427.
108. Advice to the Minister for Environment from the Environmental Protection Authority of WA on Water Allocation and Perth's Water Future Strategy (EPA Bulletin 903, August 1998) pp. i-ii.
109. The informal advice is provided under s 16(e) of the Environmental Protection Act 1986 (WA). Section 16 states the functions of the EPA. Paragraph (e) lists the function of advising the Minister on environmental matters generally and on any matter that the Minister may refer to the EPA. Section 16 prescribes no procedure for the provision of this type of advice. Presently, the EPA produces the informal advice without public consultation but publishes the report of the advice. An example of such advice is the EPA's report on its assessment of the "Draft Interim Water Allocation Plan, Ord River, " Bulletin 965, December 1999. Interestingly, the EPA states there that it intends to assess the "Final Water Allocation Plan, Ord River" formally under Pt IV of the Act.
110. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
111. RiWIA Sch 1, cl 7(2)(g).
112. Environmental Protection Act 1986 (WA) s 47(1).
113. Environmental Protection Act 1986 (WA) s 114.
114. Bridgetown-Greenbushes Friends of the Forest (Inc) v Department of Conservation and Land Management (1997) 94 LGERA 381.
115. Water Management Act 2000 (NSW) s 48.
116. Water Management Act 2000 (NSW) s 63.
117. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
118. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
119. RiWIA Sch 1, cl 7(2)(h).
120. RiWIA s 26L(2).
121. RiWIA s 26L(3).
122. See article discussions above.
123. RiWIA ss 26O and 26P.
124. Interpretation Act 1984 (WA) s 42.
125. See article discussions above.
126. The basic rights to take water are entitlements that are prescribed by the statute rather than determined by administrative grant.
127. RiWIA Sch 1, cl 7(1).
128. The delegations would be made under Water and Rivers Commission Act 1995 (WA) s 13.
129. Water and Rivers Commission Act 1995 (WA) s 14.
130. For example, Statewide Policy No 3, Policy Statement on Water Sharing, May 2000, to be reviewed in June 2001.
131. RiWIA Sch 1, cll 3-5. Rights in Water and Irrigation Regulations 2000 Part 3.
132. See, for example, Water Management Act 2000 (NSW) ch 3, pt 2, div 7.
133. RiWIA Sch 1, cll 6-10.
134. The matters to which the Commission must have regard are listed in Sch 1, cl 7(2). That clause is set out in Appendix 3.
135. Nevertheless, it is difficult to see a court being quite so deferential to the Commission as the High Court was in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 493, where the relevant legislation expressed the decision to approve or refuse the transfer of an irrigation farm lease to be "entirely in the discretion of the Commission. "
136. L Pearson, "Jurisdictional Fact: a Dilemma for the Courts"(2000) 17(5) Environmental and Planning Law Journal 453.
137. See article discussions above.
138. Statewide Policy No 3, Policy Statement on Water Sharing, May 2000, to be reviewed in June 2001.
139. Per Brennan J in Re Drake (No 2) (1979) 2 ALD 634 at 640-641.
140. M Aronson and B Dwyer, Judicial Review of Administrative Action, LBC Information Services, 2000, 72-77.
141. RiWIA Sch 1, cll 7(5) and 15(3), and the Appendix to Sch 1.
142. Water Management Act 2000 (NSW) Ch 3, Pts 2 and 3.
143. Tuna Boat Owners' Association of SA Inc v Development Assessment Commission [2000] SASC 238 25; 110 LGERA 1-13 As discussed above, adaptive management is the practice of monitoring the effects of a resource development and evaluating the outcomes against objectives for the development, then varying the conditions of the development to avoid or alleviate unacceptable emerging impacts.
144. RiWIA Pt 3, Div 3A, especially ss 26GC to 26GF.
145. RiWIA s 26GD(1).
146. RiWIA ss 26GD(1)(b) and 26GE(1).
147. RiWIA s 26GD(2).
148. RiWIA s 26CE(2) & (3).
149. RiWIA Sch 1, Div 6.
150. RiWIA Sch 1, cll 23, 24(2)(a) and 27.
151. Some of the grounds for the variation of licences that I will not discuss are: conviction for an offence, compliance with another written law of the State or the Commonwealth, the licence confers the authority on the Commission to do so, or prescribed circumstance apply.
152. RiWIA Sch 1, cl 1.
153. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
154. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 143-145A.
155. These National Principles are discussed elsewhere in article.
156. Rights in Water and Irrigation Regulations 2000 (WA) reg 20 and Schedule 1. Modest annual licence fees are charged on four surface water sources that are subject to public water supply works.
157. RiWIA s 27 and the Water Agencies (Powers) Act 1984 (WA) ss 36(4)(d) and 37.
158. The legal analysis will need to consider cases like: Marsh v Shire of Serpentine Jarrahdale (1966) 120 CLR 572.
159. Harper v Minister for Sea Fisheries (1989) 168 CLR 314
160. Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62.
161. Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62.
162. RiWIA Sch 1, cl 3.
163. RiWIA Sch 1, Division 7.
164. RiWIA Pt III, Div 3E. Rights in Water and Irrigation Regulations 2000 Pt 5.
165. 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 October 1995, 4. This framework is still being largely used by the National Competition Council in its ongoing assessment of the implementation of the COAG reforms: see Water Property Rights, a paper prepared by the Department of Agriculture, Fisheries and Forestry Australia and the Australian Bureau of Agricultural and Resource Economics in consultation with State and Territory agencies, and published on the website of the National Competition Council, Background Papers on Aspects of CoAG Water Reforms: http://www.ncc.gov.au/.
166. RiWIA Sch 1, cl 12.
167. RiWIA Sch 1, cl 22. There are also other reasons specified in cl 22 for which a renewal may not be made.
168. Supreme Court of California (1983) 33 Cal 3d 419 [189 Cal Rptr 346].
169. RiWIA Sch 1, Div 9, especially cl 39(1), (2) and (5).
170. A Gardner, "Water Resources Law Reform, " (1998) 15(6) Environmental and Planning Law Journal 377-400
171. Discussed above.
172. Water Property Rights, a paper prepared by the Department of Agriculture, Fisheries and Forestry Australia and the Australian Bureau of Agricultural and Resource Economics in consultation with State and Territory agencies, and published on bythe website of the National Competition Council, Background Papers on Aspects of CoAG Water Reforms: http://www.ncc.gov.au/, 8.
173. RiWIA Sch 1, cll 7(5) and 15(1), and Appendix.
174. This contrasts starkly with the statutory prescription of the entitlement under an access licence under the Water Management Act 2000 (NSW) s 56.
175. This is true of the report Water Property Rights, a paper prepared by the Department of Agriculture, Fisheries and Forestry Australia and the Australian Bureau of Agricultural and Resource Economics in consultation with State and Territory agencies, and published on the website of the National Competition Council, Background Papers on Aspects of CoAG Water Reforms: http://www.ncc.gov.au/, 12. See also, paper prepared by Environment Australia, Environmental Requirements of the CoAG Water Reforms, at the same website. One significant assessment of the environmental impact of water trading is that done for the Murray-Darling Basin Commission's pilot interstate water trading project: see the Commission's website-natural resources management at http://www.mdbc.gov.au/naturalresources/natural.htm> and search "water trading": site visited 29 October 2001.
176. RiWIA Sch 1, cl 33.
177. RiWIA Sch 1, cl 35.
178. Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62.
179. Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62.
180. National Water Quality Management Strategy: from Natural Resources Management webpage of the Department of Agriculture, Fisheries and Forestry. http://www.affa.gov.au/docs/nrm/water/water_reform/nwqms/nw qms_toc.html and http://www.ea.gov.au/water/quality/nwqms/index.html#quality National Action Plan for Salinity and Water Quality: < http://www.affa.gov.au/docs/nrm/actionplan/index.html>.
181. Australian and New Zealand Guidelines for Fresh and Marine Water Quality, 2000, ch 2, "A Framework for Applying the Guidelines, " pp 1-2.
182. Australian and New Zealand Guidelines for Fresh and Marine Water Quality, 2000, ch 2, "A Framework for Applying the Guidelines, " pp 1-2.
183. Parliament of Australia, House of Representatives, Standing Committee on Environment and Heritage, Report Coordinating Catchment Management-Inquiry into catchment management, tabled in February 2001, available at:
184. Catchment Management Act 1989 (NSW), Catchment and Land Protection Act 1994 (Vic) and the Catchment and Land Protection Board regime under the Water Resources Act 1997 (SA).
185. RiWIA Pt 3, Div 3C.