The justiciability of the sustainability objective in Australian

The justiciability of the sustainability objective in Australian regional water allocation plans Professor Jennifer Mc. Kay Commissioner ERD Court Part time South Australia Centre for Comparative Water Policies and Laws, School of Commerce

Thank you for the invitation They hang the man and flog the woman That steal the goose from the common, But let the greater villain loose That steal the common from the goose. English folk poem, 1764

Four elements of sustainable development 1. Sustainable use. 2. Inter-generational equity. 3. Equitable use or intra-generational equity, and 4. Integration principle integration of environmental concerns into development decisions. Rio 1992 and various Australian government publications and State laws such as the NWI State laws and international treaties

Sustainable development law • if individual members of the judiciary each work towards the common goal of achieving an environmentally sustainable future, the law on sustainable development will gain strength and through collective effort the goal will be reached. . it is clear the time for sustainable development has come, and it is essential that individual judges and national judiciaries seize the opportunity". . . Preston CJ NSW

Framework of the talk

Justiciability • Should judges ask how should I interpret this text ? • or • how should certain institutions with their distinctive abilities and limitations interpret certain texts? • judges if they are formalist are more likely to say the issue of SD is non justiciable

Justiciability • Eskridge advocates dynamic statutory interpretation, judges cannot stick to the original legislative intention. • Dworkin TVA v Hill integrity approach • put existing legal materials and assume coherent structure of fairness. • Q could the Endangered species act block a dam because of the ecologically

justiciability • uninteresting fish? • Does the application of the Act voilate reasonable social • In conflicts between economic and environmental goals judicial unreliabilities might well be taken to argue in favour of formalism.

5 epochs of water law 1 1788 -1901 - Only State colonial laws and these were highly introspective to the particular colony. 2 Federation 1901 to 1983 - fiscal federalism (CCAC) sections 96 and section 100 prohibition on Commonwealth powers.

SA and Victoria Political Challenges in Water Allocation

5 epochs of water laws 3 Treaties power 1983 - 1994 - (CCAC) enhanced Federal intervention Tasmanian dam’s case, MDBC agreement (weak) and ESD principles. 4 1994 - 2007 state power but federal incentives Council of Australian Governments reforms, ESD and competition law reforms hence enhanced section 51 (xx) Trade Practices powers State litigation on State water plans and allocation reductions. Regional delivery, NWI

Australia up to 2007 Mc. Kay Chapter Freshwater book 2007 COPYRIGHT UNISA

Epoch 5 water markets but also Commonwealth and State intervention in the water market buybacks for environmental purposes reinstatement of federal subsidization of irrigation infrastructure but also private infrastructure facilitated use of PPP and alliance processes for infrastructure in cities especially desalination plants

113 Regional water plans(to date) • set up under different State laws but with a statement of sustainability which mirrors Rio. • Includes precaution, intra and inter generational equity. • no compensation for reductions in water allocations based on new science • Compensation if change in policy • cases here will be reviewed

Principal water management agencies and laws applicable to each state and territory State or territory Australian Capital Territory Lead jurisdictional body for water management / Principal legislation Environment ACT/ Water Resources Act 1998 Name of the Plan Water Resources Management Plan No of plans as on 30 June 2010 1 New South Wales Department of Natural Resources/Water Management Act 2000; Water Act 1912 Water sharing plan 54 Northern Territory Department of Natural Resources, Environment and the Arts/Water Act 1992 Water allocation plan 3 Queensland Department of Natural Resources, Mines and Water / Water Act 2000; Wild Rivers Act 2005; Integrated Planning Act 1997 Water resource plan 21 South Australia Department of Water/Natural Resources Management Act 2004; Groundwater (Border Agreement) Act 1985 Water allocation plans 15 Tasmania Department of Primary Industries and Water/ Water Management Act 1999 Water management plans 6 Victoria Department of Sustainability and Environment /Water Act 1989; Groundwater (Border Agreement) Act 1985 Regional sustainable water strategies 2 Water management plans/Water Allocation Plans 11 Western Australia Department of Water /Rights in Water and Irrigation Act 1914

56 NRM regions

State Court interpretations of Water Plans • Water Plans interpreted strictly: no discretion in Minister or court to vary a Plan. • ESD used to reduce water allocations by up to 50%. • Pro-rata reductions seen as fair. • Normal administrative law rules apply, so there must be procedural fairness.

Elandes Epoch 4 • under Water Resources Act SA 1997 • Willunga basin prescribed wells area. • Water allocation plan adopted by Minister in 2000. • most landholders had allocation reduced as aquifer over allocated. • Elandes sought to get additional water based on hardship provisions

Elandes- Epoch 4 • held reduction up held • there is no provision in the Water allocation plan for businesses that cannot adapt to reduced water usage. • RESULTS • many almond ventures have closed in the area with the loss of the festival. recycled water is being used from Christies beach and Aldinga waste water plants in the amount of 2200 ML/annum or about 1/3 of the groundwater resource.

Backstory- Elandes • The judge on the case was accustomed to finding procedural irregularities to render other applications of the plans as void against a particular plaintiff. • for example we produced several decisions about the Minister and failings ie, lack of notice, failure to advertise widely about the plan, failure to hold public meetings

State Courts • Upholding of plenary power of State to change water laws and reduce allocations. • Also to require licences for storing water in a dam. • In summary, rigorous.

Alliances • There is a prohibition on litigation, except in the case of wilful default or fraud. As projects come to be tested, it remains to be seen whether the no litigation principle will prevail in the manner it was intended

• alliances employ a no blame: no suit approach, which establishes a relationship intended to encourage the participants to find solutions to problems rather than assigning blame. A fundamental feature of the alliance is that it does not assign the responsibility for tasks to any one participant, but to all participants (including the off-taker).

5 Water Act 2007 • Commonwealth (under multiple powers in section 51, including the referral of powers from the States) enacts the Water Act • arose out of frustration of Howard Government with States on water reforms in NWI and water allocation • Commonwealth accreditation of all State Water Plans which must aim to achieve ESD , gives a role to Australian competition and Consumer Commission to regulate process and enhances the

Water Act 2007 very wide • These are stated in a long list in section 5 which starts with the national interest and relevant international agreements and subject to the above, to promote the use and management of basin water resources to optimise economic, social and environmental outcomes

Optimizing environmental outcomes • Environmental outcomes are defined as including: • (a) ecosystem function; and • (b) biodiversity; and • (c) water quality; and • (d) water resource health, and to • (e) improve water security for all users of the basin As defined Biodiversity Convention" means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992

Justiciability of terms • These are stated in a long list in Section 5 which starts with the national interest and relevant international agreements. • Subject to the above, promote the use and management of basin water resources to optimise economic, social and environmental outcomes. • Indeterminate.

National interest term Ramsar convention Article 2. 5 has the term urgent national interest use this to guide some Judges would say yes There is a High court challenge at present on this issue and the State regimes that try to limit transfers out of a State Vic 10% limit on transfers just been knocked out

The Present-Water Act 2007 copyright Uni. SA Copyright unisa

Federal govt should take over WATER 45. 00% 40. 00% City of Salisbury, South Australia 35. 00% 30. 00% City of Charles Sturt, South Australia 25. 00% City of Gold Coast, Queensland 20. 00% 15. 00% 10. 00% 5. 00% 0. 00% strongly disagree neutral agree strongly agree

Thank You