Water trading along the Murray: A South Australian perspective

Environmental and Planning Law Journal

Volumn 23, Issue 2, 2006, Pages 131-147

  Pye, Anne ^a  

^a UNIVERSITY OF ADELAIDE   (Australia)

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[No Author keywords available]

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EID: 84867021145     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (159)

1. River Murray Catchment Water Management Board, Water Allocation Plan for the River Murray Prescribed Watercourse (South Australia, July 2002) online at http://www.rivermurray.sa.gov.au/about/pdfs/wap_final_lowres.pdf (viewed 30 May 2005).
2. National Competition Council, Assessment of Governments' Progress in Implementing the National Competition Policy and Related Reforms: 2004 (National Competition Council, 2004) Vol 2, Ch 6, "Water". Available online at http://www.ncc.gov.au/articleZone.asp?articleZoneID=525 (viewed 4 June 2005).
3. South Australia, Department of Environment and Heritage, Inland Waters, available online at http://www.dehaa.sa.gov.au/reporting/inland/murray.html (viewed 30 May 2005).
4. Fullerton T, Watershed: Deciding Our Water Future (ABC Books, 2001) p 145.
5. Bates G, Environmental Law in Australia (5th ed, Butterworths, 2002) p 22.
6. Murray-Darling Basin Commission, A Brief History of the Murray-Darling Basin Agreement online at http://www.mdbc.gov.au/about/governance/agreementhistory.htm (viewed 4 June 2005).
7. Fullerton, n 4, p 76.
8. Melville F and Broughton P, "Trading in Water Rights", in Committee for Economic Development of Australia Growth 52: Water and the Australian Economy (CEDA, 2004) p 40.
9. Murray-Darling Basin Commission, n 6.
10. Fullerton, n 4, p 195.
11. High Level Steering Group on Water, Progress in implementation of the COAG water reform framework: 1999 Report to COAG, Occasional Paper No 1 (Canberra, 1999) p 65. Available online at http://www.daff.gov.au/corporate_docs/publications/pdf/nrm/water_reform/coag.pdf (viewed 4 June 2005).
12. Melville and Broughton, n 8, p 40.
13. Melville and Broughton, n 8, p 40.
14. Murray-Darling Basin Commission, n 6.
15. National Competition Council, n 2, Ch 10.
16. Murray-Darling Basin Commission The Murray-Darling Basin Agreement available online at http://www.mdbc.gov.au/about/governance/agreement.htm (viewed 4 June 2005).
17. Murray-Darling Basin Commission, The Pilot Interstate Water Trading Project available online at http://www.mdbc.gov.au/naturalresources/watertrade/pilot-watertrade.htm#info (viewed 4 June 2005).
18. Queensland joined in 1996 and the ACT in 1998.
19. See, Murray-Darling Basin Commission, n 16.
20. Council of Australian Governments, Communique (25 February 1994) available online at http://www.coag.gov.au/meetings/250294/index.htm (viewed 20 June 2005).
21. Council of Australian Governments, n 19.
22. See Fullerton, above n 4, p 237.
23. Breckwoldt R, Boden R and Andrew J (eds) The Darling (Murray-Darling Basin Commission, 2004) p 419.
24. Council of Australian Governments, n 19, Attachment A, s 4(a) available online at http://www.coag.gov.au/meetings/250294/attachment_a.htm (viewed 4 June 2005).
25. Shadwick M, "A Viable and Sustainable Water Industry" (National Competition Council, Staff Discussion Paper) p 29 available online at http://www.ncc.gov.au/pdf/PIReViWa-001.pdf (viewed 4 June 2005).
26. The author has disregarded the 1995 and subsequent guidelines published by the Agriculture and Resource Management Council of Australia and New Zealand for water entitlements, and other papers, as these have been fully incorporated into later proposals.
27. Fullerton, n 4, p 143.
28. National Competition Council, Water: NCP Water Reforms available online at http://www.ncc.gov.au/sector.asp?sectorID=8&archive (viewed 4 June 2005).
29. Fullerton, n 4, p 143.
30. Breckwoldtet al, n 22, p 438.
31. Independent Audit Group, Review of Cap Implementation 2003/04 (Murray-Darling Basin Commission, March 2005) p 6 available online at http://www.mdbc.gov.au/__data/page/46/IAG_Report2003-04.PDF (viewed 4 June 2005).
32. Independent Audit Group, n 30, p 6.
33. Independent Audit Group, n 30, p 7.
34. Blackmore DJ, "Water Trading- A Strategic Overview" (Paper delivered to the Committee for Economic Development of Australia Water conference, Adelaide 16 March 2004).
35. The ACT's involvement in River Murray machinations has been ignored because virtually none of the water diverted to it is used by agricultural irrigators and its entitlement is almost exclusively for urban use. Figure comes from Independent Audit Group, n 30, p 50.
36. Independent Audit Group, n 30, p 2.
37. Independent Audit Group, n 30, p 50.
38. Cullen P, "The Challenges of Water Policy for Australia", in Committee for Economic Development of Australia, Growth 52: Water and the Australian Economy (CEDA, 2004) p8
39. Water Resources Act 1997 (SA), Pt 7.
40. This has become an important distinction when it comes to delays in environmental assessments of proposed transfers.
41. New South Wales passed the Water Management Act 2000 (NSW), which separated water rights from land but it was not enacted until 2004. Victoria is still looking at this.
42. Melville and Broughton, n 8, p 44.
43. Simes v Minister for Environment & Conservation (2004) 88 SASR 175; 132 LGERA 430; [2004] SASC 84
44. Michelmore v Minister for Environment & Conservation (2004) 137 LGERA 306; [2004] SASC 415.
45. Lymberopolous v Minister for Environment & Conservation (2005) 137 LGERA 96; [2005] SASC 2.
46. Minister for Environment & Conservation v Wylie Group Pty Ltd (2005) 91 SASR 242; [2005] SASC 127.
47. Murray-Darling Basin Commission, n 17.
48. Murray-Darling Basin Commission, Water Trading available online at http://www.mdbc.gov.au/nrm/water_management/water_issues/water_trade (viewed 22 March 2006)
49. It should be noted that the Pilot Project has not stopped the different States still issuing varying forms of entitlements, despite increasing calls for consistent arrangements between the States by COAG.
50. Murray-Darling Basin Commission, n 17.
51. Cullen, n 37, p 12.
52. In 2005 the differing levels of security licences between States still cause problems, however the bulk of interstate trade is now temporary, extends to group irrigation schemes and extends beyond the physical limitations set out in the Project.
53. Apart from South Australia, the States have more than one licensing authority (ie more than one set of rules).
54. Murray-Darling Basin Commission, n 17.
55. National Competition Council, n 2, Ch 10.
56. For water taking allocations, South Australia has indicated that the time taken to approve a permanent trade varies considerably, depending upon the complexity of the technical assessment required. Generally, the assessment needs to consider both the seller's and buyer's points of extraction and use. The South Australia Department of Water, Land and Biodiversity Conservation aims to assess applications to trade water taking allocations within 8 to 10 weeks. Increasingly for the River Murray, where salinity impacts need to be assessed, the process can take up to 6 months. For water holding allocations, the department generally processes trades within 10-15 days, because a technical assessment is not required.
57. National Competition Council, n 2, Ch 6.
58. At present all licensing authorities in the Murray-Darling Basin meet every six months to attempt to reconcile pertinent issues.
59. National Competition Council, n 2, Ch 10.
60. Murray-Darling Basin Commission, n 17.
61. Munroe C, "The National Water Initiative", in Committee for Economic Development of Australia, n 8, p 18.
62. Murray-Darling Basin Commission, The Pilot Interstate Water Trading Project: Two year review available online at http://www.mdbc.gov.au/nrm/water_management/water_issues/water_trade/pilot_interstate_water_trading_project/pilot_interstate_trading_2_yr_review (viewed 4 June 2005).
63. Murray-Darling Basin Commission, n 17.
64. National Competition Council, n 2, Ch 6.
65. Fullerton, n 4, p 152.
66. Bond M and Farrier D, "Transferable Water Allocations - Property Right or Shimmering Mirage?" (1996) 13 EPLJ 213 at 217.
67. Fullerton, n 4, p 163.
68. Murray-Darling Basin Commission, n 17.
69. Murray-Darling Basin Commission, n 17.
70. Cullen P, Water Challenges for South Australia in the 21st Century (State of South Australia, 2004) p 25, available online at http://www.thinkers.sa.gov.au/images/Cullen_final_report.pdf (viewed 30 May 2005).
71. Murray-Darling Basin Commission, n 17.
72. See River Murray Catchment Water Management Board, n 1, Principles 22, 53 and 54.
73. Murray-Darling Basin Commission, n 58.
74. Lyster R "(De)regulating the Rural Environment" (2001) 18 EPLJ 445 at 467.
75. Lyster, n 70 at 460.
76. National Competition Council, n 2, Ch 10.
77. National Competition Council, n 2, Ch 10.
78. Shadwick, n 24, p 22.
79. Shadwick, n 24, p 22.
80. Melville and Broughton, n 8, p 40.
81. Shadwick, n 24, p 23.
82. Department of Water, Land and Biodiversity Conservation, Trade History - River Murray available online at http://www.test.dwlbc.sa.gov.au/licensing/trading/rivermurray/index.html#Trade_History (viewed 9 March 2006)
83. High Level Steering Group on Water, n 11, p 6.
84. High Level Steering Group on Water, n 11, p 30.
85. Breckwoldt et al, n 22, p 419.
86. Breckwoldt et al, n 22, p 420.
87. Fullerton, n 4 p153.
88. Breckwoldt et al, n 22, p 428.
89. Tan PL, "Water Law Reform in NSW - 1995 to 1999" (2003) 20 EPLJ 165 at 169.
90. Nevill J, "Managing the Cumulative Effects of Incremental Development in Freshwater Resources" (2003) 20 EPLJ 85 at 86.
91. Fullerton, n 4, p 192.
92. Melville and Broughton, n 8, p 38.
93. Blackmore, n 33.
94. River Murray Catchment Water Management Board, n 1.
95. Breckwoldt et al, n 22, p 438.
96. South Australia, Department of Environment and Heritage, n 3.
97. Lyster, n 70 at 451.
98. Fullerton, n 4, p 93.
99. This being the World Health Organisation's standard for the desirable upper limit of drinking water.
100. Fullerton, n 4, p 102.
101. Murray-Darling Basin Commission, Review of the Operation of the Cap August 2000: Overview Report of the Murray-Darling Basin Commission (Murray-Darling Basin Commission, 2000) p 17, available online at http://www.mdbc.gov.au/__data/page/102/FINAL_Report-Nov_00.pdf (viewed 4 June 2005).
102. Murray-Darling Basin Commission, n 97, p 13.
103. Murray-Darling Basin Commission, n 97, p 37.
104. Blumer M, "In Search of the Common Bunyip: A Commonsense Approach to Water Property Rights in NSW" (2000) 17 EPLJ 334.
105. Gordon S, Kemp A and Mues C, Irrigation in the Murray Darling Basin and the Impact of Water Policy Reforms (ABARE, Canberra, 2000).
106. To be matched by the States.
107. Fullerton, n 4, p 104.
108. Council of Australian Governments, Communique (3 November 2000) available online at http://www.coag.gov.au/meetings/031100/index.htm (viewed 20 June 2005).
109. Council of Australian Governments, Our Vital Resources: A National Action Plan for Salinity & Water Quality (Council of Australian Governments, 2000) available online at http://www.napswq.gov.au/publications/vital-resources.html (viewed 30 May 2005).
110. Council of Australian Governments, Communique, (5 April 2002) available online at http://www.coag.gov.au/meetings/050402/index.htm#actionplan (viewed 20 June 2005).
111. Goesch T and Hanna N, "Efficient Use of Water: Role of Secure Property Rights" (2002) 9(2) Australian Commodities 374 at 382.
112. In most irrigation areas in South Australia, the irrigation trust holds the water taking allocation and provides a share of this allocation to individual irrigators. This entitlement is freely transferable within the scheme and can be traded outside the scheme through the trust. In addition to fears of the potential "stranding" of irrigation infrastructure, some irrigation trusts have imposed limits on trading outside their schemes (eg Central Irrigation Trust in Barmera has a 2% cumulative limit on permanent trade out) in response to concerns that net trade out may have negative impacts on the local economy, result in loss of economies of scale, as well as reflecting uncertainty about the amount of water available for environmental flows.
113. See, National Competition Council, n 2, Ch 6.
114. Heaney A and Beare S, "Property Rights and Externalities in Water Trade" (paper delivered at the ACIAR Water Policy Workshop, Thailand, 8-9 June 2001) available online at http://abareonlineshop.com/product.asp?prodid=11983 (viewed 20 June 2005).
115. River Murray Catchment Water Management Board, n 1, s 5.1.
116. River Murray Catchment Water Management Board, n 1, s 6.7.
117. River Murray Catchment Water Management Board, n 1, s 8.
118. Shadwick, n 24, p 2.
119. Shadwick, n 24, p 11.
120. Shadwick, n 24, p 30.
121. South Australia, Department of Environment and Heritage, n 3
122. National Competition Council, Assessment of governments' progress in implementing the National Competition Policy and related reforms: August 2003 - Volume three: Water reform (National Competition Council, 2003) s 6.13, available online at http://www.ncc.gov.au/publication.asp?publicationID=183§orID=9 (viewed 4 June 2005).
123. South Australia, Department of Environment and Heritage, n 3.
124. Wentworth Group of Concerned Scientists Blueprint for a National Water Plan (World Wildlife Fund, 2003) p 7, available online at http://www.wwf.org.au/publications/blueprint_national_water_plan/ (viewed 22 March 2006).
125. Wentworth Group of Concerned Scientists, n 119, p 15.
126. Wentworth Group of Concerned Scientists, n 119, p 13.
127. Wentworth Group of Concerned Scientists, n 119, p 13.
128. Council of Australian Governments, Communique (29 August 2003) available online at http://www.coag.gov.au/meetings/290803/index.html (viewed 20 June 2005).
129. Council of Australian Governments, Communique (29 August 2003) Attachment A, available online at http://www.coag.gov.au/meetings/290803/attachment.htm (viewed 20 June 2005).
130. National Competition Council, n 117, s 1.9.
131. Melville and Broughton, n 8, p 39.
132. National Competition Council, n 117, s 10.2.
133. National Competition Council, n 117, s 10.2.
134. Cullen, n 37, p 20.
135. See also, Independent Audit Group, n 30, p 12.
136. Murray-Darling Basin Commission, Annual Report 2004-2005 available online at http://www.mdbc.gov.au/ar0405/2_river_murray_water.htm#wat (viewed 9 March 2006).
137. The National Water Commission was established in December 2004 under the National Water Commission Act 2004 (Cth). The Commission took over the National Competition Council's function of reviewing the progress of implementation of water reform.
138. Council of Australian Governments, Communique (25 June 2004) available online at http://www.coag.gov.au/meetings/250604/index#nwi (viewed 20 June 2005).
139. Council of Australian Governments, Intergovernmental Agreement on a National Water Initiative (25 June 2004) s 31, available online at http://www.coag.gov.au/meetings/250604/iga_national_water_initiative.pdf (viewed 20 June 2005).
140. Council of Australian Governments, n 133, s 32.
141. Council of Australian Governments, Communique (25 June 2004) Attachment A, available online at http://www.coag.gov.au/meetings/250604/attachments_a.pdf (viewed 20 June 2005). Where traded water is tagged to the original source of the water, water would retain the characteristics, and be subject to the regulation, of its State of origin (eg levels of authorisation). This would establish entitlements to extract and use water in one State (the State of destination) but with the share of water available for extraction determined by the State of origin. However existing State legislation is not sufficiently flexible to accommodate the legal and administrative requirements of a tagged system.
142. National Competition Council, n 2, Ch 10.
143. Council of Australian Governments, n 133, s 62.
144. Council of Australian Governments, n 133, s 55.
145. Council of Australian Governments, n 133, Schedule E, s 5(iii).
146. Cullen, n 37, p 13.
147. See, Council of Australian Governments, Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the MDB (Council of Australian Governments, 2004) available online at http://www.coag.gov.au/meetings/250604/iga_water_overallocation_murray_darling.pdf (viewed 22 March 2006).
148. Council of Australian Governments, n 140.
149. See "Winter Weather Damages Coorong's Ecology", 7.30 Report, ABC TV, 15 August 2005. A transcript is available at http://www.abc.net.au/7.30/content/2005/s1438169.htm (viewed 4 October 2005).
150. Evidently this was delayed until the end of September.
151. Council of Australian Governments, Communique, (3 June 2005) available online at http://www.coag.gov.au/meetings/030605/index#nwi (viewed 20 June 2005).
152. ABC TV, n 142
153. Morton A, "Salinity 'Killing Murray Wetlands'", The Age (29 September 2005) available online at http://www.theage.com.au/news/national/salinity-killing-murray-river-wetlands/2005/09/28/1127804547936.html (viewed 4 October 2005).
154. Morton, n 146.
155. Hodge A, "Water Trading On Way", The Weekend Australian October 1 2005, p 11.
156. Hodge, n 148.
157. Murray-Darling Basin Ministerial Council, Communique (30 September 2005) available online at http://www.mdbc.gov.au/__data/page/915/MC38_Communique_30Sept_2005.pdf (viewed 22 March 2006).
158. Murray-Darling Basin Ministerial Council, n 150.
159. Tan, n 85 at 191.