Sharing Water from Transboundary Rivers: Limits on State Power
| Author | Adam Webster |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | 10.1177/0067205X1604400102 |
| Subject Matter | Article |
SHARING WATER FROM TRANSBOUNDARY RIVERS:
LIMITS ON STATE POWER
Adam Webster*
ABSTRACT
Disputes between States of Australia over the sharing of the waters of rivers that flow
through or form the boundary between two or more States (‘transboundary rivers’) have
frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe
the resolution of these disputes in terms of limits on State legislative and executive
power. After refra ming the problem in this way, the article first examines the scope of
State legislative and executive power and its extraterritorial eff ect with respec t to the
regulation of transboundary rivers. Secondly, the article considers inconsistencies
between the laws and regulations of two States with respect to transboundary rivers.
Finally, constitutional implications and limits on State power are examined, with
particular focus on whether there may be scope for the extension of the Melbourne
Corporation principle to assist in the resolution of some transboundary river disputes .
I INTRODUCTION
During the Australasian Federal Conventions in the 1890s the claim made by the South
Australian delegates that each of the colonies had a ‘right’ to a share of the water of the
River Murray was as much a moral claim as it was legal.
1
The South Australians were
keen to ensure that the upstream colonies (a nd later States) did not retain too mu ch of
the Murray’s water.
2
Muddying the waters by failing to draw a clear distinction between
moral and legal rights did not, from a practical perspective, harm the So uth Australian
cause. It ultimately provided South Australia with sufficient grounds to enter into
negotiations with the other colonies (which in turn meant close examination of the legal
issues was avoided).
3
* Lecturer, Adelaide Law School, The University of Adelaide.
1
At the 1897 Adelaide Convention, South Australian delegate John Gordon stated that any
‘rights’ to water should be based upon ‘principles of n atural justice’: Official Report of the
National Australasian Convention Debates, Adelaide, 17 April 1897, 801 (John Gordon).
2
South Australian Josiah Symon declared ‘[w]e only want as much water as will maintain the
navigability of the river’: ibid 801 (Josiah Symon). Fellow South Australian John Gordon was
quick to qualify the statement and added ‘[w]e want a little more. We make a claim for a fair
proportion of the water of the Murray for irrigation’: at 801 (John Gordon).
3
While this issue was not fully resolved during the drafting of the Australian Constitution in
the 1890s, agreement was reached on 9 September 1914 when the Prime Minister and the
Premiers of New South Wales, Victoria and South Australia signed the River Murray Waters
26 Federal Law Review Volume 44
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Understanding what are the ‘rights’ of the States to the waters of the Murray is still
an important issue today. With some dissatisfaction currently being expressed over the
operation of the Murray Darling Basin Plan,
4
those affected by the Plan might look to
the courts to define their ‘rights’ and the ‘rights’ of the States. Furthermore, if climate
change increases the frequency of droughts (and reduces the volume of water within the
River Murray), discontent over the sharing of the waters of the Murray might well cause
States to reconsider litigation as a means of redefining the allocation of the Murray’s
waters between the States.
5
To the extent that the legal questions surr ounding the sharing of the waters of the
River Murray were examined prior to Federation and in the first decade after it, framing
the issue in terms of the ‘rights’ of the States shaped t he legal analysis of the problem.
Arguments were made that an analogy could be drawn between the ‘rights’ of the States
and the riparian rights doctrine at common law.
6
However, these claims were not
coupled with any detailed consideration of the fundamental differences between the
riparian rights of individual proprietors and the ‘rights’ of the Stat es.
7
Agreement. The agreement was implemented by the Commonwealth and the relevant States
passing separate but substantially similar legislation: see River Murray Waters Act 1915 (Cth),
River Murray Waters Act 1915 (NSW), River Murray Waters Act 1915 (Vic), River Murray Waters
Act 1915 (SA). The legal issues were given some consideration during the hearings of the
Interstate Royal Commission on the River Mu rray in 1902. However, very little analysis of
the legal issues can be found in the Royal Commission’s final report: see New South Wales,
South Australia and Victoria, Interstate Royal Commission on the River Murray, Report of the
Commissioners (1902).
4
Australian Broadcasting Corporation, Member for Farrer to raise concerns about Basin Plan with
MDBA's new Chief Executive (5 January 2016) <http://www.abc.net.au/news/2016-01-
04/irrigators-ley/7065550>.
5
During the millennium drought there were threats by South Australia to take this legal
question to the High Court: see, eg, Lucille Keen, ‘Canberra Expects River Writs’, The
Australian Financial Review (Sydney), 4 April 2012, 10; Lucille Keen, ‘SA Mulls Legal Redress’,
The Australian Financial Review (Sydney), 2 9 May 2012, 11; Michael Owen, ‘Murray Brawl
“Easier in Court”’, The Australian (Sydney), 27 May 2011, 6; Michael Owen, ‘Rann’s Murray
Warning to States’, The Australian (Sydney), 15 June 2011, 10.
6
Official Record of the Debates of the Australasian Federal Convention, Melbourne, 24
January 1898, 76 (Josiah Symon); Official Record of the Debates of the Australasian Federal
Convention, Melbourne, 25 January 1898, 131 (Frederick Holder). See also Isaac Isaacs, Re
Waters of the Murray River and its Tributaries and Interstate Rights to Divert Them (Opinion,
22 March 1906) 1. A copy of the legal opinion can be found in the South Australian
Parliamentary Library. In the period immediately after Federation reference was also made
to the United States jurispr udence dealing with transboundary river disputes: John Quick
and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth
(Angus & Robertson, 1901) 887; W Harrison Moore, The Constitution of the Commonwealth
of Australia (Maxwell, 2 nd ed, 1910 ) 494, 564; A Ing lis Clark, Studies in Australian
Constitutional Law (Maxwell, 1901) 107-17.
7
One obvious difference was the geographical operation of the ‘right’. Riparian rights were
associated with the use of the water on the riparian tenement. See Attwood v Llay Main
Collieries Ltd [1926] 1 Ch 444, 459; Swindon Waterworks Co Ltd v Wiltshire & Berkshire Canal
Navigation Co (1875) LR 7 HL 697, 704. In the formation of these arguments, no consideration
was given to how or why the ‘State’s right to water’ extended beyond the riparian tenement.
The issue has since been given some consideration: Ian A Renard, ‘The River Murray
Question: Part III – New Doctrines for Old Problems’ (1972) 8 Melbourne University Law
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