Australia's Water Rights

The Flow of Australia’s Water Rights

I Introduction

Issues regarding the use and availability of water in Australia have long been contested. Land owners that have a river or natural watercourse on their property are sometimes called a riparian owner. Centuries ago in England under common law, a riparian owner had various rights to how the water that flowed through their land was used. These laws are still functional and landowners can use water that falls on their land for ordinary purposes. Australia however, has a completely different water situation and the laws regarding usage are much stricter than those at common law. The harsher climate and the impact of severe drought are arguable factors as to why the respective state and commonwealth

Parts of the current Australian legal system, specifically the water rights are still partly based around old common law. Victoria led the way introducing the Water and Conservation Act 1880 (Vic) and the Irrigation Act 1886 (Vic) . This was the first instance of Australia beginning to turn away from the common-law riparian rights. The Water Act 1905 (Vic) outlined that the right to the flow and control of the water lay with the crown. This act was the first to essentially severe rights to water from the ownership of the land. Thus, making water a separate property right to land, where a license was often required to use it. The introduction of legislation continued and different states began establishing their own legislation with the aim of regulating the use of water in their rivers and watercourses. By the turn of the 21st century all the Australian states had essentially severed the rights of rivers and natural watercourses on property from the landowner, and given these property rights to the respective governments . For a landowner in Queensland, Section 26 of the Water Act 2000 (Qld) imposes possibly the most significant legislation regarding water rights, that is, ‘’all rights to the use, flow and control of all water in Queensland are vested in the state’’. The laws regarding water usage by landowners is outlined in s96(2)

This massive population boom quickly made it obvious that the common-law water rights did not work in Australia. This was mainly due to the harsher climate and the impact of severe drought. Australia was a country described as ‘’no part of which is free from drought and most of which suffers from frequent drought.’’ These environmental conditions and the climate are arguable factors as to why the respective state and commonwealth governments have imposed legislation to strictly control the usage of water. The effectiveness of state based legislation was strained by the issues regarding water shortage in the Murray-Darling system which runs through four different states. Overuse by the land-owners along the system was recognised as a primary cause of a shortage of water. Severe drought and major flooding also had an extreme environmental impact on the Murray-Darling system. The massive overuse of water in conjunction with the severe impact of climate and environmental conditions led to the major disruption of the natural flow of the system and water production. The limitations of state-based legislation were quickly made apparent as states struggled immensely to regulate water use and create solutions to the ongoing water crisis due to the respective legislation only having jurisdiction in one state. A federal level response to the crisis was required and thus the Water Act 2007 (Cth)