The Judicial Contribution to Water Justice: The Australian Experience
| Date | 01 July 2018 |
| Author |
48 ELR 10580 ENVIRONMENTAL LAW REPORTER 7-2018
The Brasilia Declaration of Judges on Water Justice,1
adopted at the eighth World Water Forum in
Brasilia on March 21, 2018, recognizes that water
justice involves environmental stewardship, intergen-
erational equity, sustainable ecological systems, custom-
ary rig hts, the pre vention and pre cautionary principles,
the in dubio pro natura principle, the inter nalization of
external environmental costs (including the polluter-pays
and the user-pays principles), good governance, holist ic
approaches involving integration of environmental fac-
tors, and procedural water justice. In this Comment, I
examine each of these a spects of water justice, illustrated
by examples of cases in Aust ralia where courts can be seen
to have upheld them.
I. Environmental Stewardship
Principle 1 of the Brasilia Declaration supports the notion
that water is a public good and that governments should
exercise stewardship over water resources for the benet
of the public. It provides: “e State should exercise stew-
ardship over all water resources, and protect them, in con-
junction with their associated ecological f unctions, for the
benet of current and future generations, and the Earth
community of life.”2 is principle has been upheld in
Australia in t wo types of ca ses. e rst concerns whether
water is a public good so that there are not private property
rights in water resources.
In ICM Agriculture Pty. Ltd. v. Commonwealth,3 three
farmers had their bore licenses under the Water Act 1912
(NSW) to extract groundwater from the Lower Lachlan
Groundwater System by bores, replaced by a new system of
aquifer access licenses under the Water Management Act
2000 (NSW). ese new licenses permitted the farmers
1. Brasília Declaration of Judges on Water Justice (2018), available at https://
www.iucn.org/sites/dev/les/content/documents/brasilia_declaration_of_
judges_on_water_justice_21_march_2018_nal_as_approved.pdf.
2. Id.
3. ICM Agric. Pty. Ltd. v. Commonwealth (2009) 240 CLR 140; [2009] HCA
51.
to take less water than had been allowed under the bore
licenses. e farmers brought proceedings in the High
Court of Australia in its original jurisdiction contending
that the steps taken to replace the bore license s and reduce
their access to groundwater amounted to an acquisition of
their property otherwise t han on just terms, contrary to
the constitutional guara ntee under s 51(xxxi) of the Con-
stitution. e High Court by majority (6:1) rejected the
farmers’ claims.4
Chief Justice Robert French and Justices William Gu m-
mow and Susan Crennan held that additions made to the
Water Act 1912 (NSW) in 1966 had the eect of divest-
ing any common-law rights to extract the groundwater.5
ey found that the plaintis did not have any other pri-
vate rights to the groundwater because “it was a natural
resource, and the State always had the power to limit the
volume of water to be taken from that resource.”6 Justices
Kenneth Hayne, Susan Kiefel, and Virginia Bell agreed
that any common-law rights to extract the groundwa-
ter “had disappeared a ltogether in 1966 with the vesting
of sub-surface water in the State,” if not before.7 Justices
Hayne, Kiefel, and Bell found that t he plaintis’ licenses to
extract groundwater may readily be accepted as a “species
of property right,” referring to Sir William Blackstone’s
Commentaries on the Laws of England8: “water is a move-
able, wandering thing, and must of necessity continue
common by the law of nature; so that I can only have a
temporary, transient, usufructu ary property therein.”9
However, Justices Hayne, Kiefel, and Bell concluded that
there had been no acquisition of property because the state
4. is discussion is drawn from Brian J. Preston, Water and Ecologically Sus-
tainable Development in the Courts, 6 M J. I’ C. E.
L. 129, 142 (2009).
6. Id. at [84].
7. Id. at [144].
8. W B, C L E (B
2) 18 (1766).
9. ICM Agric. Pty. Ltd. (2009) 240 CLR 140; [2009] HCA 51 at [145]-[147].
The Judicial Contribution to Water
Justice: The Australian Experience
by Brian J. Preston
Brian J. Preston is the Chief Judge of the Land and Environment Court in New South Wales, Australia.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
7-2018 NEWS & ANALYSIS 48 ELR 10581
had not gained a measurable advantage from reducing the
plaint is’ entitlements.10
e High Court applied these ndings in its decision
in Arnold v. Minister Administering the Water Management
Act 2000.11 is case concerned similar facts to ICM Agri-
culture, where the applicants’ groundwater extraction enti-
tlements under the Water Act 1912 (NSW) in the Lower
Murray Groundwater System had been reduced pursuant
to the Water Management Act 2000 (NSW). e major-
ity of the High Court (Chief Justice French and Justices
Gummow, Hayne, Crennan, Kiefel, and Bell, with Jus-
tice Hayne dissenting) dismissed the applicants’ conten-
tion that the replacement of the applicants’ groundwater
licenses with licenses perm itting lower entitlements was an
acquisition of their property otherwise than on just terms
in contravention of s 51(xxxi) of the Constitution. In their
decisions, Chief Justice French and Justices Gummow,
Hayne, Crennan, Kiefel, and Bell each referred to their
respective reasons set out in ICM Agriculture.12
e second type of case concerns t he power of state and
territory governments to charge companies license fees for
access to water or sh resources. Under s 90 of the Aus-
tralian Constitution, the power to charge excise duties,
or taxes on the production or distribution of goods, is
reserved to the commonwealth government, so that state
and territory governments are prohibited from imposing
these duties.
In Harper v. Minister for Sea Fisheries,13 the High Court
of Australia held that Tasmanian legislation imposing a
license fee on abalone shing was not invalid by virtue of
s 90 of the Constitution because the license fee was not a
tax and thus not an excise duty. Justice Gerard Brennan,
with Justices Daryl Dawson, John Toohey, and Michael
McHugh agreeing, held that the eect of the legislation
was to abrogate the public right to abalone shing and to
vest this right in license holders for the purpose of prevent-
ing uncontrolled exploitation of a limited resource.14 He
found that the license confers a privilege “ana logous to a
prot à prendre” over property, and that since the license
fee is similar to a charge over property, it is not a tax.15
Chief Justice Anthony Mason and Justices William Deane
and Mary Gaudron agreed with Justice Brennan; however,
they noted while the privilege “can be compared to a prot
à prendre,” it is in truth
an entitlement of a new kind created a s part of a system
for preserving a lim ited public natural resou rce in a soci-
ety which is comi ng to recognize t hat, in so far as suc h
10. Id. at [147], [153]-[154].
11. Arnold v. Minister Administering the Water Mgmt. Act 2000 (2010) 240 CLR
242; [2010] HCA 3.
12. Id. at [11], [31], [60].
14. Id. at 334, 335.
15. Id. at 335, 336.
resources are concerne d, to fail to protect may destroy and
to preserve the right of ever yone to take what he or she will
may eventually deprive t hat right of all content.16
is reasoning was applied by the Federa l Court of Aus-
tralia in Australian Capital Territory v. Queanbeyan City
Council & Another.17 is case concerned a water licen se fee
and water network facilities tax t hat the Australian Capital
Territory (ACT) government charged ACTEW C orpora-
tion Ltd, a statutory corporation that held a license to take
water for urban water supply. AC TEW supplied water to
Queanbeyan City Counci l under an agreement and sought
to recover the cost of supplying the water, including the
water license fee and water network facilities ta x. e Fed-
eral Court of Austra lia held that whether or not the net-
work facilities tax was a t ax, it was not an excise duty under
s 90 of the Constitution.
e majority (Chief Justice Patrick Keane and Justice
Margaret Stone, with Justice Nye Perram not deciding)
held that the water license fee was not a tax, and, thus,
not an excise duty. In his reasoning, Chief Justice Kea ne
found that, as opposed to a tax on goods, t he water license
fee “can be seen to be a charge for the tran sfer by the ACT
to ACTEW of rights to a limited public natural resource
under the stewardship of the ACT.”18 Justice Stone agreed
with Chief Justice Keane’s conclusion, but disagreed on
the relevance of the analog y to property rights, prefer-
ring the expression “a fee for a privilege.”19 is case was
appealed to the High Court, wh ich upheld the Federal
Court’s decision on the basis of an additional ground
raised by the ACTEW.20
II. Intergenerational Equity
Principle 1 of the Brasilia Declaration also promotes the
importa nce of intergenerationa l equity. is principle
acknowledges that governments have the responsibility to
exercise stewardship over water resources for present and
future generations.
e principle of intergenerational equity was applied by
the Land Court of Queensland in New Acland Coal Pty.
Ltd. v. Ashman & Ors & Chief Executive, Department of
Environment & Heritage [No. 4].21 e Land Court consid-
ered the merits of the proposed New Acland Stage 3 coal
mine expansion, including the objections to the expan-
sion, and determined to make a recommendation that the
16. Id. at 325.
17. Australian Capital Territory v. Queanbeyan City Council & Another (2010)
188 FCR 541; [2010] FCAFC 124.
18. Id. at [65].
19. Id. at [168] (applying Air Caledonie Int’l v. Commonwealth (1988) 165 CLR
462; [1988] HCA 61, 467).
20. Queanbeyan City Council v. ACTEW Corp. Ltd. (2011) 244 CLR 530;
21. New Acland Coal Pty. Ltd. v. Ashman & Ors & Chief Executive, Dep’t of Env’t
& Heritage [No. 4] [2017] QLC 24.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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