Dividing the waters: a critical analysis of law reform in water allocation and management in Australia from 1989-1999

Abstract

The end of the 1980’s marked the close of development of public dams in most Australian states. It was the start of an era which recognised scarcity of water resources, economic issues related to water supply for irrigation and concerns over use on the environment. Water needed to be reallocated from inefficient to ‘high-value’ use, and degraded land needed to be retired from irrigation. To do so, policy-makers gave a key role to market mechanisms. Water needed to be specified as a commodity fro markets to work properly. Following policy made by the Council of Australian Governments in the mid 1990s, state governments started the reform of legislation to implement this radical policy change. Based on a critical analysis of water law reform from 1989 to 1999, this thesis argues that a suite of legal mechanisms should be adopted in a new legal regime to guard against a failure to provide water for ecosystems. Three case studies were carried out in Queensland’s Lower Balonne sub-catchment, the Goulburn and Murray catchments in Victoria and NSW’S Lachlan catchment. The studies describe the role irrigation played in shaping water law, analyse conflict over sharing of floodplain flows, chart the specifications of new property rights in water, and examine the formulation of environmental flows. My research reveals that there were fundamental flaws in the pre-reform regulatory framework which allocated water through administrative means. First, the adoption of English common law concepts of water was inappropriate. Secondly, water bureaucrats failed to use their powers to protect consumptive use. Thirdly, provision of water for ecosystems needs was completely ignored. Finally the findings suggest the law was poorly implemented partly because of a culture of non-enforcement engendered by the influence of powerful groups over water allocation and management. This thesis also reveals shortcomings in the reform measures. The concept of ‘property’ has not been well understood by policy-makers. While other legal systems have emphasised public property in rivers, Australian policy does not expressly address the issue. Hence setting up a market in water entrenches the interests of consumptive users who already consider their administrative rights de facto private property rights. Legal provisions elevate the concept of private property while water for ecosystems are public rights which are vague and difficult to enforce. Other findings relate to inappropriate specifications of bulk water property rights; inadequate provisions for restoring aquatic ecosystems; and incomplete organisational reform. Types of environmental allocations and the place of public involvement in water planning are discussed. Several recommendations are made in the light of these findings. A framework of property rights should include express recognition of public property, legal concepts should be relevant to Australian hydrological conditions, and legislation should expressly provide for restoration of ecosystems. The necessity of ongoing reform in the structure of state water is debated. Finally, to overcome the culture of non-enforcement of law, the thesis calls for reform to include a range of substantive and procedural mechanisms to close the gap between the law and its implementation.