A Summary Report Of Rights In Water And Irrigation Act 1914 (WA)

1.Analyse the following legal act: Rights in Water and Irrigation Act 1914 (WA).

2.Write a summary report of your legal act, thereby identifying and discussing the following elements:

a) The purpose, subject matter, and scope of the legal act. The object clause (if any) is a good starting point, but do not stop here. In order to learn more about the purpose, subject matter and scope, you must read the entire document; however, the object clause may provide guidance and may structure your reading. The ‘dictionary’ of your legal act may help here as well.

b) Rights, duties, powers, and liabilites as set out in your legal act. In other words, explain who may or must do what according to your legal act – and what are the consequences in cases of non-compliance.

c) Key approaches to environmental policy making to be found in your legal act (where appropriate), including regulation (command and control), economic instruments (ecological taxes, tradeable permits, various fee systems), and public participation/consultation.

Purpose, Subject Matter and Scope of RIWI Act

The importance of environmental protection has grown substantially as the threat of climate change become prominent. The governments across the globe are focused on introducing new policies which are targeted towards protecting environmental resources and establishing a sustainable environment. In the case of Australia, the government has introduced various laws in order to ensure that parties properly use scarce resources to ensure that they are protected in the future. The Australian Government plays a crucial role as a regulator to ensure that companies did not misuse their powers while using environmental resources and they did not cause pollution in the environment. A good example is implementation of the Rights in Water and Irrigation Act 1914 (RIWI). This legislation is focused on providing provisions relating to rights in water resources and make provisions in order to regulate, manage, use and protect water resources while providing for irrigation schemes and for related purposes (O’Donnell, 2013). The objective of this report is to evaluate this legislation in order to understand its purpose, subject matter, and scope. The objective of this act will be evaluated thoroughly after evaluating the entire document to understand its structure. Various rights, duties, powers, and liabilities which are included in this act will be analysed in this report along with evaluation of legal consequences which parties can face in case of non-compliance. The key approach of environmental policy making found in RIWI act will be discussed including regulations, economic instruments, and public participation/consultation.

The purpose of RIWI Act is to provide the legislative basis for the planning, regulations, protection, management, protection, and allocation of water resources. This aim of this act is to provide guidelines for effective management of water resources in the country to ensure that appropriate resources are available for everyone. Moreover, this act focuses on providing policies for sustainable use and development of water resources in the countries. These policies are included in this act in order to ensure that appropriate water resources are available in the country in order to meet the needs of current and future users (Huntjens et al., 2012). The subject matter of this act provides provisions regarding providing licenses to land users and issuing guidelines for them to ensure that they properly use water resources. These regulations also guide them to ensure that they sustainably use their water resources so that they are available for future generations as well. Provisions are included in this act regarding five stages which parties have to follow in order to complete water licensing process. Steps are also provided for companies to make changes in an existing license owned by a landowner in the country.

The object of the RIWI Act is given under section 4 which is included in Part III Division 1. As per section 4, the objects of this act are divided into four subsections. Section 4 (1) (a) (i) provides that this act aims to manage the water resources in a particular manner in order to ensure that they are sustainability used and developed in order to meet the current and future requirements of users (Legislation, 2018). Moreover, subsection 1 (a) (ii) provides that this act also focuses on protecting the ecosystem of the country and the environment in which water resources are situated by providing provisions for regulations of activities which have detrimental impact on them (Legislation, 2018). Subsection 1 (b) of this act provides that this act aims to promote the orderly, equitable and efficient user of water resources in Australia. Provisions are also included in this act in order to foster local communities which come within the administration of local authorities (subsection 1 (b)).

Rights, duties, powers, and liabilities set out in the RIWI Act

This section also provides that this act aims to increase the engagement or participation of local communities in the administration process. Lastly, subsection 1 (d) of this act provides that this act is focused on aligning the national policies which are implemented by the government for the management of other natural resources with policies for management of water resources. Section 4 (2) of this act provides that the term ‘use and development’ used under subsection 1 (a) (i) include provisions which guide the operations for use and development of cultural, commercial, domestic, navigational and recreational purposes (Saxer, 2010). Subsection 3 of this act provides that the Minister seeks to ensure that the objectives which are mentioned under subsection 1 of this act are achieved and other persons who are responsible for carrying out the activities of this act have relevant functions in this part.

The scope of this act is provided under section 5 of this Act. This section provides waters to which this Act did not apply. As per subsection 1 (a) of this section, the water of any spring which is flowing and rise to the surface which has been granted or demised by the Crown until such water pass beyond the boundaries of the land that belongs to the occupier or owner of the land. Subsection 1 (b) of this section provides that the water which is in the wetland the best of which the land has been granted or demised by the Crown and such water which comes wholly within the boundaries of the land which belongs to the owner or occupier of the land (Haehnlein, Bayer & Blum, 2010). Both these water sources did not come within the scope of the RIWI Act unless such spring or wetland is prescribed by local by-laws as the spring or wetland in which the provisions of this act apply. Subsection 2 of this section provides provisions regarding a spring or wetland which may not be prescribed as a spring or wetland on which the provisions of this act did not apply. Subsection 2 (a) of this section provides that taking water from a spring or wetland is in the opinion of the water resources management committee which is established under Division 3C used for locality or localities in which by-law intended to apply and have a significant impact on the flow or level of a water source or wetland (Legislation, 2018). Moreover, subsection 2 (b) provides that the committee recommends to the Minister regarding which spring or wetland will this act applies or not.

Landowners and occupiers have certain rights available based on which they can control and use water resources located on, below or adjoining their land. The water rights grants to these landowners allow them to reasonably use the water flowing or adjoining their land. This right is present in the common law which extends to the use of static groundwater and surface water which is present on a particular land. Although the rights of landowners regarding the use of water still exist and still relevant in the common law rights, however, they have become limited as per statute-based water control and management regulations (Olszewska, 2018). In the case of Western Australia, the RIWI Act governs the rights of landowners regarding the resources on or adjoining their land. As per this act, a landowner or occupier has a right to take surface water or water from waterways which are above or adjoining their lands for three purposes which include domestic use, watering stocks or irrigation of small gardens. These rights are subject to various restrictions in the act. The rights which are vested for landowners or occupiers are subject to local by-laws. Section 9 (1) of this act recognises the rights of landowners or occupiers in order to use the water for domestic purpose or watering cattle or other stock.

Moreover, rights are recognised under section 10 of the RIWI Act which provides that parties have the right to take water for domestic and ordinary use which is accessible by a public road or reserve. Moreover, section 20 and 21 provides the rights of landowners and occupiers regarding other surface waters (Legislation, 2018). Under section 20 of the act, riparian owners (owner or occupier) have the right to use the water free of charge for domestic and ordinary use and for the use of watering cattle or other stock. Section 21 also recognised the rights towards the use of water to which there is access by public road for domestic and ordinary use, fire-fighting, watering cattle and extends the flow of water. A statutory duty is recognised under subsection (1) (a) of this act based on which parties have to ensure that they use water resources through sustainable ways. Liability can be imposed on the party for violating this duty under section 5E (2) (a) of this act (Austlii, 2018). Moreover, liability can be imposed on a party under section 5E (2) (a) of this act for violating the duty recognised under subsection (1) (b) of this Act. Moreover, the license holders have the duty to ensure that they comply with the guidelines in order to avoid legal consequences.

Powers of the Minister are recognised under section 17 of the act regarding obstruction of the water which is not possible without the approval of the Minister. Similarly, section 22 provides that the Minister may as per his/her opinion has the power to give written notice to the person who is diverted, taken or used the water in the manner which is not right. Section 26GA provides that in case the volume of water is augmented due to construction work, then the rights recognised under section 9, 10, 20 and 21 are subject to the limitations, and they must exercise in accordance with the subsection and the regulations (Legislation, 2018). The Minister also has the power given under section 26GC of the act in order to restrict the amount, rate or purpose for this the water is taken out of the water resources. Moreover, the Minister also has the power given under this section to prohibit a party from taking the water from the water resource or the purpose for which the water by the person can be used. Under section 26H of this Act, the Minister has the right to enter any land and inspects the land which is in the control of the Crown (Austlii, 2018). The Minister can also provide provisions for protection of the water and its resources by removing obstacles and cleaning, deepening or straightening the source. These powers can be used in order to prevent any illegal diversion of the water or preventing unwanted interventions. The RIWI Act also provides various regulations in order to impose legal consequences on parties that violate these provisions. Section 72 provides provisions for general penalty imposed on the party. As per this section, any person that commits an offence against this act shall be liable for a penalty not exceeding $10,000.

Under this act, provisions regarding license holders are included who are those landowners who have the right to use the water on their land. The parties have to make an application for receiving the license in the nearest Department of Water and Environmental Regulation regional office. License is required to take water, construct wells or interfere with the bed and banks. Schedule 1 section 25 provides that the Minister has the right to suspend or cancel the license of a party in case the party causes damage to the water resources or fails to comply with relevant duties. Penalty of $10,000 and a daily penalty of $1,000 can be imposed for violation of section 5C of this act. The amount of penalties can be imposed based on the actions of the parties. In a recent example, a company used more than 34 million litres of bore water without getting a license. A fine of $45,000 was imposed on the company for violating the provisions of the RIWI Act (Philipps, 2017). All these penalties are imposed on parties in order to ensure that they did not violate the provisions given in the RIWI Act.

The RIWI Act focuses on implementing various environmental approaches which enable policy makers to make policies which are targeted towards protecting environmental resources. A good example is section 4 (1) (d) of this act which provides that this act focuses on aligning the objectives of protection of water resources along with protection of other natural resources. The Minister is authorised under this act to take decisions which he/she deemed necessary or appropriate to protect the water resources. Recent amendments made in this act also highlighted that key approach of this act which focused on protecting the environmental resources (Olszewska, 2018). Maintaining policies regarding protection of the water resources are important to ensure that these resources are secured for current and future generations. This act has clearly defined how water resources can be used by the parties in Western Australia to ensure that they did not waste them.

The recent amendments made in this act are focused on improving the role of this act as the key regulator to ensure that water resources in Western Australia are protected. For example, the grant of miscellaneous license in this act is subject to amendments or replacements made in this act. The mining register or the warden comes within the provisions given under section 42 (as read with section 92) of this act (Legislation, 2018). As per these laws, the application of a person which his make in respect of granting a miscellaneous license for any land can be issued for one or more purposes. The policies and amendments made in the RIWI Act goes along with the State-wide Environmental Water Provisions Policy and the EPA’s Public Environmental Review process to ensure that the decisions which are made aligned with each other rather than contravening each other. For example, section 7 (3) of the Petroleum and Geothermal Energy Resources Act 1967 (WA) requires that the parties taking or use the water for the purpose of any petroleum activity is subject to the provisions given by the RIWI Act (Malafeh & Sharp, 2015). This shows that approach of this act regarding economic instruments based on which the parties have to take tradable permits while using any water resources.

Conclusion

In conclusion, the Rights in Water and Irrigation Act is key legislation in Western Australia which focuses on governing the rights in water resources. In this case, the subject matter, scope, purpose, and object of this act are evaluated which provides that it is focused on providing provisions for regulation, management, and protection of water resources which are used for domestic, irrigation and related purposes. Various rights, duties, liabilities, and powers of parties are identified in this report which is included in the RIWI Act. Lastly, the key approaches which are included in this act relating to policy making are identified to understand who this act is used for forming new policies and aligning the policies of the act with other regulations. Conclusively, this act plays a crucial role in protecting the water resources in Western Australia which is important to address the issue of climate change to ensure that water is available to fulfil the needs of current and future generations.

References

Austlii. (2018). Rights in Water and Irrigation Act 1914. Retrieved from https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/riwaia1914305/

Haehnlein, S., Bayer, P., & Blum, P. (2010). International legal status of the use of shallow geothermal energy. Renewable and Sustainable Energy Reviews, 14(9), 2611-2625.

Huntjens, P., Lebel, L., Pahl-Wostl, C., Camkin, J., Schulze, R., & Kranz, N. (2012). Institutional design propositions for the governance of adaptation to climate change in the water sector. Global Environmental Change, 22(1), 67-81.

Legislation. (2018). Rights in Water and Irrigation Act 1914. Retrieved from https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_25444.pdf/$FILE/Rights%20in%20Water%20and%20Irrigation%20Act%201914%20-%20%5B09-c0-06%5D.pdf?OpenElement

Malafeh, S., & Sharp, B. (2015). Role of royalties in sustainable geothermal energy development. Energy Policy, 85, 235-242.

O'Donnell, M. (2013). The national water initiative, native title rights to water and the emergent recognition of indigenous specific commercial rights to water in northern Australia. Australasian Journal of Natural Resources Law and Policy, 16(1), 83.

Olszewska, J. (2018). Turning water into gold: water trading rights in Western Australia. Retrieved from https://findlawaustralia.com.au/articles/395/turning-water-into-gold-water-trading-rights-in-we.aspx

Petroleum and Geothermal Energy Resources Act 1967 (WA)

Philipps, M. (2017). Company fined for unlicenced water use. Retrieved from https://thewest.com.au/news/south-western-times/company-fined-for-unlicenced-water-use-ng-b88660684z

Rights in Water and Irrigation Act 1914 (WA)

Saxer, S. R. (2010). The fluid nature of property rights in water. Duke Envtl. L. & Pol'y F., 21, 49.