In 2003 an application by the nature Conservation Council of New South Wales Inc (NCC) challenged the cogency of the water sharing management plan for the Gwydir regulated River water Source, made by the Minister for Sustainable Natural Resources (Minister) under the Water Management Act 2000 (Cth). The NCC disputed the plan as it did not address environmental obligations. It did not identify performance indicates or develop environment water rules concerned with environmental health water and supplementary environmental water. The Land and Environment Court dismissed the appeal in 2004, ruling the plan was justifiably made. Special leave was granted to appeal to the High Court in 2005. However, the NSW Government then passed legislation to retrospectively substantiate all water sharing plans made under the Water Management Act 2000, including plans that may have been invalidly made. As a result, the Nature Conservation Council (NCC) was forced to abandon its High Court challenge to the Gwydir Water Sharing Plan.1
Chief Justice Spigelman found that the intention of sections 5 and 9 of the Water Management Act 2000 (NSW), when read together, meant that decisions about water sharing should give priority to protecting the water source and its dependent ecosystems. The Water Management Act 2000 (NSW) regulates the water resources in NSW, aimed towards ecological sustainable development, where it protects and conserves the water resources of the State.2 Ecological sustainable development is “…using, conserving and enhancing the community’s resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased.”3Prior to the legislative changes in the 1880’s water law was based on English common Law.4 The ordinary and reasonable use of water is part of the common law riparian rights doctrine that linked riparian land ownership with access, use and management of water. 5 Consumptive water use is water available without return its water resource system. For example those used in manufacturing, agriculture that is not returned to a stream, river, or water treatment plan.6
This essay will assess whether consumptive water use rights granted under the Water Management Act 2000 (NSW) provide for ordinary and reasonable use of water that is ecologically sustainable. This essay will discuss how the Water Management Act 2000 (NSW):
1. Prioritizes environmental conservation
2. Legislation Impact on Planning and management
3. Sustainable Management v Consumptive Use
4. Legislation errors in Consumptive Use from River systems
Prioritizing Environmental Conservation
The New South Wales Water Management Act 2000, for the first time created a legislative provision for ‘environmental water’. It is prioritized according to levels of risk stress and conservation value. The act lists principles to guide water management, provision for 15 year trade label water license and the development of a 10 year water management plan. The three fundamental aims of this act is to improve environmental health, accomplish a sharing of government and community responsibility and achieve greater economic benefits for individuals and communities. The act identifies the representation on communities responsible for developing water managements plans consisting of an extensive number of stakeholders and importance on local membership. The water management plans will be legal documents that direct how water must be places on public exhibitions an resulting comments and objections must be received and considered. The conclusive approval is up to the Minister for Land and Water Conservation. The Water Management Act 2000 (NSW) is therefore concerned with both the processes and the outcome of river managements. The act has two goals. The first is statutory plans developed by locally represented water management communities with broad community input, and secondly for local communities balancing environmental, social, cultural and economic outcomes through the planning process.7
Legislation Impact on Planning, Management and Water for consumptive use
The Agricultural and Resource Management Council of Australia and New Zealand (ARMCANZ) framework suggests that comprehensive planning should take place before allocating tradeable rights in water for consumptive use. NSW accepts that planning is the foundation of the shift forwards in the new generation of water legislation. The NSW provisions have embraced a planning model. This model consists of a 10 year planning process designed around the issuing access licenses.8 These licenses will be connected to water arrangements plans based on a 10 year period and a review of the plan after 5 years.9 Management committees in each catchment area carry out precise planning responsibilities. In comparison to the other states of Australia NSW has the clearest provisions for monitoring and accountability. This means the Minister is responsible for making sure that audit of the plan takes place at intervals of not more than 5 years to ascertain whether the provisions of the plan have been given effect.10 Additionally, in setting out the conditions of the plan the Minister must have regard to the results of the latest audit. In practice, a scientist or an expert panel is made available to communities with making water management plans. However this Act does not make this a legislative requirement, even if these management committees are implemented to reflect the local community interests including one person selected by the Minister for the environment. 11
Sustainable Management v Consumptive Use
In comparison to other states of Australia the Water Management Act 2000 (NSW) goes further in implementing the ARMCANZ Ecosystem principles in its objects clause. Its objects clause highlights long term sustainable management rather than consumptive use, and refers specifically to protection, enhancement and restoration of water sources, their associated ecosystems, ecological processes, biological diversity and water quality.12 Specifically the management principles for water sharing state indistinctly that:
(a)the sharing of water…must protect the water source and its dependent ecosystem; and
(b)…the basic landholder rights of owners of land; and
(c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b)
The Act has basic landholder rights defined to include domestic and stock rights, harvestable rights and native title rights. Water for other consumptive use for example for irrigated agriculture is provided through access licenses. These management principles provide a clear priority for water sharing between consumptive and non-consumptive use. 13
Legislation errors in Consumptive Use from River systems
The Rivers and Foreshores Improvement Act 1948 (NSW) was primarily
passed to assist in the removal of obstructions from rivers and foreshores and to
inhibit erosion produced by tidal and non-tidal water. The purpose of this development were disputed to certain degree by the objectives encapsulated within the Rivers and Foreshores (Amendment) Act 1991(NSW) which incorporated part 3a into the act necessitating a person or company to obtain a permit for an activity that may hinder or can harmful effects to the flow of a river. The NSW government introduced the Water Management Act 2000(NSW) as part of the social and political shift towards conserving and managing Australia’s resources. In comparison to the Rivers and Foreshores Improvement Act 1948 (NSW) targeted towards improvement of rivers and foreshores, frequently attained through the removal of obstructions the Water Management Act 2000 (NSW) is aimed at ecological sustainable development- where it intents to protect and conserve the water resources of the State. This newer act Water Management Act 2000 (NSW) reflects a fundamental change in attitudes towards the environment. Legislative definitions are often fraught with problems when used against the realities of local landscapes. Taylor and Stokes says for example this act states the definition of a bona fide river which should inter alia streams, creeks and brooks, only consists of streams with intermittent and perennial flow. However many of the watercourses in NSW are not automatically protected as they are in a very dry landscape and have an ephermal flow regime and falls outside of such legislative and common law definitions. Consequently this causes various issues covering unsuitable land use practices, loss of riparian zones and occasionally complete loss of the drainage network to urban development. This in turn results in a large number of arguments concerning the correct definition of a river and has to be settles by the Land and Environment Court. This usually is a great expense to local councils, developers or community groups. This legal ambiguity is an example where a lack of scientific involvement with the development of legislation has resulted in the failure of legislation to provide for the proper manage and protection of a system and its consumptive use rights for a sustainable ecologically environment. The legislative shortcomings mentioned above reveal the need to further integrate science, management and legislation.14
1 Nature Conservation Council of New South Wales Inc v Minister for Sustainable Natural Resources 2004 NSWLEC 33; NCC (NSW) Inc v Minister Administering the Water Management Act 2000 (2005) NSWCA 9.
2 Sophia Findlay and Mark Taylor, ‘Why Rehabilitate Urban Rover Systems?’, (2006) 38(3) Area Journal 38,14.
3 Australia’s National Strategy for Ecologically Sustainable Development (1992)
4 Poh-Ling Tan, Legal Issues Relating to Water Use, Issues Paper No 1 (2002), 3.
5Douglas Fisher, Water Law (LBC, 2000)78.
6 Congressional Research Service, Agriculture: A Glossary of Terms, Programs, and Laws, CRS Report for Congress (2005), 59.
7 Mick Hillman, Graeme Aplin and Gary Brierley, ‘The Importance of Process in Ecosystem Management: Lessons from the Lachlan Catchment, New South Wales, Australia,’ (2003) 46(2) Journal of Environmental Planning and Management, 222-223.
8 Water Management Act 2000 (NSW) s 56(5).
9 Water Management Act 2000 (NSW) s 43.
10 Water Management Act 2000 (NSW) s 44.
11 Poh-Ling Tan, Legal Issues Relating to Water Use, Issues Paper No 1 (2002), 18.
12 Water Management Act 2000 (NSW) s 3.
13 Water Management Act 2000 (NSW) s 5(3).
14 Sophia Findlay and Mark Taylor, ‘Why Rehabilitate Urban Rover Systems?’, (2006) 38(3) Area Journal 38,14