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ARTICLES
ONE HUNDRED YEARS + OF RIPARIAN LEGISLATION IN NEW SOUTH WALES
by D. Patrick James1 and Hubert Chanson12.
1
Introduction
The lack of a suitable water supply caused Governor Philip to relocate from Botany Bay to Port
Jackson within the first week of settlement in January 1788. Since then the supply, management
and equitable distribution of water resources have been a recurring problem in Australia. At
present management of the waters of the Murray-Darling is still unresolved after one hundred
and twenty years of discussion and debate. A more recent problem, also unresolved, is that of
water flows in the Snowy River. At present a new “Water Act” in New South Wales is in
preparation to replace the current Water Act of 1912.
Water is essential for every aspect of human endeavour; without water, human life is measured in
days. As rain, water has little value. Only when water reaches the earth does it becomes a
valuable resource to produce industrial wealth, to be jealously hoarded from one’s neighbours,
to bicker and fight over. The right to water, riparian rights, developed no doubt in parallel with
the development of agriculture. Many European countries codified their body of common riparian
law. The Spanish Law of Water was passed in 13663. This paper gives a brief summary of
riparian legislation albeit from a New South Wales perspective.
Up to 1896 riparian rights in New South Wales were based on British common law riparian
rights. It is one of the ironies offate that the (riparian rights) common law of Great Britain
. ..should have. ..been the law ofarid Australia4. Great Britain is a small European island and
Australia is commonly described as the driest continent on earth. Table 1 gives some area and
rainfall data. Average rainfall for England (London and York) is half that of Sydney and equal to
that of Central West Slopes of New South Wales (Forbes, Molong, Parkes, Wellington). Inter
alia, lower ambient temperatures in England ensures low evaporation loss and more effective use
of the rainfall. Average rainfall data however does not reflect the wide variability of Australian
rainfall, which is the average between the extremes of drought and flood oftem associated with El
Nino and La Nina events respectively.
1 Environmental Consultant, Patrick James & Associates, 5/2 Hardie Street, Neutral Bay NSW 2089.
2 Senior Lecturer, Department of Civil Engineering, The University of Queensland, Brisbane QLD 4072.
3 McKinney H G (1887) Notes on the experience of other Countries in the Administration of their Water Supplies, J.
Pro. Roy. Soc. NSW, 21, pp 60-73. The Visigoths, who ruled Spain during the 5th century, practised irrigation and
their book of laws, Liber Judiciorum, prescribed penalities for the theft of water (Smith 1971, p. 89). Smith (1971)
mentioned that there was a water law in the Moslem world during the period 7th century to 13th century. Near
Valencia, Spain, Moslem rules were instituted early in AD 9661 and are still in use (Smith 1971, p. 93). It is believed
that the Spanish water law was derived from the Moslem precident. Smith N.(1971) A History of Dams, The
Chaucer Press, Peter Davies, London, UK.
4 Wade LAB (1909) Irrigation from the Murrumbidgee River, New South Wales, paper read before the Sydney
University Engineering Society, 17 November 1909.
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Table 1
Area and Rainfall details for Great Britain and New South Wales
Location
surface area
Australia
7,682,300 sq. km
New South Wales
801,600 sq. km
Great Britain
229,900 sq. km
average annual rainfall
Sydney, N.S.W.
1,213mm
Molong, N.S.W.
705 mm
Wellington, N.S.W.
614 mm
Parkes, N.S.W.
579 mm
Forbes, N.S.W.
523 mm
London, U.K.
593 mm
York, U.K.
639 mm
Edinburgh, U.K.
676 mm
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2
Existing Common Law
In his memorandum contained in the first Report of the Royal Commission, Oliver’ describes
riparian rights as existing by the Common Law of England. In basic terms, owners of land
adjoining non-tidal rivers or streams had rights to the water flowing past their land. They had the
right to use the water for power, for irrigation and for stock watering, provided they did not
impact on the use of the river for navigation as well as the rights enjoyed by similar owners further
downstream.
Oliver stated “m England if a private river is subject to the right of public navigation the
owners of the bed may do what they like with the water and the bed of the river, provided
they do not obstruct the navigation. That is a case which I do not think can occur in
...(New South Wales, because)...a large number of rivers are navigable only at certain
seasons of the year, and some are only navigable afterfloods or exceptionally wet seasons ”.
The British law implied that navigation of a river was of primary importance and other uses of a
river (eg hydro-power, irrigation, stock watering) were secondary. In New South Wales rivers
are either coastal, tidal and navigable or inland, non-tidal and unnavigable. Thus the prime
aspect of the British law was of little value. Agricultural use of water in Australia was, and is, of
prime importance but a use severely limited by a small irregular supply and a demand based on
the ‘good’ years of rainfall.
The Commissioners stated in their first report that “the doctrine of riparian rights as enunciated
(by Oliver) appears better adapted to England, where the people are more concerned to
drain off the water as quickly as possible than to New South Wales, where the all-important
question is how best to retain it”.
3
Lyne Royal Commission
The New South Wales Royal Commission on the Conservation of Water56, which sat between
1885 and 1887, was the first attempt in the State to address riparian rights. The Commissioners
reported that “we are of opinion that the doctrine of riparian rights which obtains under
the common law of England is not applicable to the conditions of Australia”. The
Commissioners published a draft of proposed water rights legislation in the first of their three
reports.
The evidence of W A Brodribb7 to the Commission gave a graphic description of the vagaries of
water supply on Billabong Creek8 near Wanganella in the Central Riverina district of New South
Wales. Broadribb described an incident in 1858, when a party of twelve men destroyed about
twenty three dams on Billabong Creek hoping to restore water supplies downstream. The released
water flowed only a short distance to form a series of water holes and did not reach their runs.
Broadribb’s own dam was similarly destroyed in November 1857, and a neighbour’s dam,
rebuilt after being destroyed, was guarded by armed men. In this instance some landowners
provided for their own water supplies by constructing dams, whereas others did not. Without
the dams the creek would have reverted to a series of billabongs in time of drought, as the
destruction of the dams demonstrated. The argument disclaiming common law riparian rights
and the introduction of statute law was presented in the Commissions’ First Report9 which
5 Oliver, A. (1885Memorandum on Riparian Rights contained in First Report of the Royal Commission on
Conservation of Water, Sydney.
6 Known as the Lyne Royal Commission, after its president William Lyne. Victoria had a similar Royal Commission
at the same time.
7 Brodribb, W A (1884) Royal Commission on Conservation of Water, Minutes of Evidence, (witness No. 1908),
examined 16 October 1884.
x Billabong Creek, about 50 KM north of Deniliquin, Billabong Creek rises south of Urana and flows SE to NW, joins
with the Edwards River near Moulamein, which in turn joins with the Wakool River near Kyalite. Wakol River flows
into the Murray River near Kenley.
Royal Commission (1885) First Report, New South Wales Royal Commission on the Conservation of Water.
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included the memorandum by Alexander Oliver10 11
referred to above.
Prior to federation, McKinney noted that the only provision for riparian rights was in Section 100
of the Australian Constitution11. Section 100: The Commonwealth shall not, by any law or
regulation of trade or commerce, abridge the right of a State or of the residents therein to
the reasonable use of the waters of rivers for conservation or irrigation. Navigation of
rivers was not specifically addressed in the Constitution. At the time of federation, navigation of
the Murray was of concern only to South Australia. Victoria and New South Wales had railways
systems to compete with the mainly South Australian river boat transport12. The “reasonable
use ... of waters” was undefined at the time of federation and still remains undefined after 100
years of ‘cooperation’ between the States. The concept of “reasonable use” of the waters, as
applied to the Murray and Snowy Rivers at federation, was and still remains a contemporary
issue. The perceived need for environmental water flows13 in the Snowy River puts in question
the concept of the Snowy Mountains Scheme. Environmental flows can only be achieved at the
expense of water flows inland.
4
Legislation.
The chronology of riparian and associated legislation and events for the period 1867 to 1913
leading up to and including the current Water Act, is summarised in Table 2. Table 2 includes the
associated issues of water conservation, irrigation, water rights and water supply because such
issues are at times inextricably linked.
The chronology (Table 2) shows the evolution of water management. The first report of the Lyne
Royal Commission of 1885 contained argument against the use of British riparian common law
and draft riparian legislation for New South Wales. A decade passed before the draft legislation
become the Water Rights Act 1896.
Between 1896 and 1902 four pieces of legislation were enacted to control the use of water.
These were the Water Rights Actl896, the Artesian Wells Act 1897, the Water Rights Act
1902 and the Water & Drainage Act 1902. Eventually the Water Act 1912 was enacted to
consolidate these various Acts. The Water Act 1912 (the current Act) when it came into force,
repealed the remaining parts of the Water & Drainage Act 1902, and the whole of Artesian
Wells Act 1897, Drainage Promotion Act 1901, Drainage Amendment Act 1902, Water
Rights Act 1902, Water Drainage and Artesian Wells (Amending) Act 1906 and Water and
Drainage (Amendment) Act 1911.
10 OLIVER, Alexander (1832-1904) Australian born, studied law at Oxford (BA 1860) and practised as a barrister in
England. In Australia in 1865 he was one of two parliamentary draftsmen, secretary to the Law Reform Commission in
1870-72 and in 1883 with Sir Alfred Stephen published the Criminal Law Manual, comprising the Criminal Law
Amendment Act, 1883. June 1878 he was appointed sole parliamentary draftsman. Oliver served on the royal commission
into the fisheries in 1880, and was appointed royal commissioner to inquire into the federal capital site and in 1903 into
land holdings and land use in Norfolk island. Among many legal works he published three volumes of Collection of
Statutes of Practical Utility, Colonial and Imperial, in force in New South Wales (Sydney, 1879-81). In 1892-1904 Oliver
was president of the Land Appeal Court. His tribunal dealt with water rights and land tenure problems. Extract from;
Nairn B and Serle G, eds (1981) Australian Dictionary of Biography, vol 5, Melbourne University Press, Melbourne.
11 At that stage, proposed Constitution.
12 Glynn P McM (1891) A Review of the River Murray Question, Riparian Rights, Etc. River Murray Royal
Commission, Adelaide, SA, 1891.
13 The concept of an environmental flow includes (but is not limited to): volume of water over some time base; velocity
of water in channel; duration of flow event; water level; natural and human induced variation flows on an annual and longer
time scale; need for pulses of high flows (eg. to stimulate fish breeding); and the rate of change of flow. Cullen, P(1994)
A rationale for environmental flows. Water and the Environment Newsletter No. 318 (Sep-Oct). From Nature Conservation
Council of NSW website: www.nccnsw.org.au/glossary.
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5
Application of the Water Rights Act 1896.
Up to the year 1900, some 700 applications for licences had been made under the Water Rights
Act 1896. Of these about 88% were for dams and weirs and 12% were for pumps in rivers
(McKinney14). Under the Act licensing, at the cost of a nominal licence fee, was not compulsory.
A licence however did give the licensee security over the water resource. The non-compulsory
licensing was perceived as a weakness of the Act15.
McKinney16 noted that public company landowners were “morefar-seeing.. .than the private
landowners", and in particular that “the Railway Commissioners have been more thorough
still (than public company landowners) in taking advantage of the security afforded by the
Act”. Between the introduction of the Railways in 1855 and 1896, all railway water supplies
were obtained under common law.
An example of the effect of the Act was protection of the riparian rights of downstream water
users. On completion of the Cataract Dam on the Nepean River in 1908, nine compensation
weirs17, were constructed across the Nepean River, between Menangle and Wallacia. The
construction of the dam interrupted the flow of water in the River and thus impacted on the
riparian rights of the downstream land users. The compensation weirs were/or the storing of
compensation water for farmers and others on the Nepean River below the intake works
of the Metropolitan water supply 18, 19
in order to safeguard the riparian rights of the
landowners affected by the interception of the flow of the (Nepean) river'9. In this instance
the riparian rights of the landowners subject to the vagaries of an unimpeded Nepean were
replaced by the more secure water supply of a series of weir pools.
6
Conclusions
The inappropriateness of British common law to regulate riparian rights in arid Australia was
apparent from at least the 1850s when drought affected owners and occupiers of land used force
to remove dams and weirs upstream of their properties. The protection of such structures by
armed guards was further proof of the inequity of the existing system. One Royal Commission
and a delay of 10 years were required before the first Water Rights Act was proclaimed in
1986. A further sixteen years, a second Water Rights Act 1902 and associated water, drainage
and artesian water legialtaion were required before the third and present Water Rights Act
1912was proclaimed.
The need for riparian legislation was foreshadowed in the first report of the Lyne Royal Commission.
The legislation when it was enacted gave security of supply to land owners and water users
which prior to the legislation was tenuous at best.
The issue of interstate water rights in particular remain as a problem. The Murray-Darling river
system impacts on Queensland, New South Wales, Victoria and South Australia and is an
unresolved issue today as it was in 1880s. After 120 years of debate and discussion, one would
conclude that there is no perfect solution and that a reasonable compromise is the best that can
be achieved.
14 McKinney H G (1900) Intercolonial Water Rights as Affected by Federation, Journal and Proceedings of the Royal
Society of New South Wales, pp 233-254.
15 The current Act requires licensing.
lf1 Ibid page 247.
17 The nine compensation weirs were Menangle, Bergin’s, Thurn’s, Camden, Sharpe’s, Cobbitty Village, Mt. Hunter,
Brownlow Hill and Wallacia.
IX Metropolitan Board of Water Supply and Sewerage, Annual Report 1909/1910, Section: Upper Canal, page 66.
19 Henry F J (1939) The Water Supply and Sewerage of Sydney, MBWSS, Sydney, 1939.
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Table 2 Chronology of riparian and associated legislation and events 1867 to 1913.
1867-1869 New South Wales Royal Commission into the Water Supply of Sydney and
suburbs
1875
Prevention of Water Pollution Act No. 7
1880
The Country Town Water Supply and Sewerage Act 1880 provided for water
supplies and sewerage to rural communities, subsequently absorbed into the
Local Government Act 1919.
1884
The Public Watering Places Act 1884 (No. 16), an Act to provide water for
travelling stock.
1885-1887 New South Wales Royal Commission on the Conservation of Water, William
Lyne, President, known as the Lyne Royal Commission
1885
First Report of the Commissioners on Water Conservation
1886
Second Report of the Commissioners jointly with Victorian.. .on the River
Murray
1887
third and final Report of the Commissioners
1892
Royal Commission on Water Conservation
1896
The Water Rights Act 1896 the first legislation to codify riparian rights in New
South Wales.
1897
The discovery of artesian water in 1892 led to the Artesian Wells Act 1897
(No.41) to control and regulate this resource.
1900
Public Watering Places Act 1900, enacted 22 September 1900, repealed the
Public Watering Places Act 1884 (No. 16). This Act was to consolidate the
Acts regulating public watering places and to protect certain reserves from tres
pass, to provide and regulate stock watering places, where reserves are places
declared to be travelling stock and camping reserves.
1901
Drainage Promotion Act 1901
1902
The Water Rights Act 1896 was replaced by the Water Rights Act No. 51,
1902
, enacted 26 August 1902, being an Act to consolidate the enactments relating
to water rights. Under this Act licences were not compulsory. Section 4
proclaimed the Crown as being the owner of water which flowed through or
past or within
the land of 2 or more occupiers.
1902
Drainage and irrigation by means of Drainage Promotion Act No. 31, 1901,
Water and Drainage Act, No. 93, 1902 (5 December 1902) and Drainage
Promotion Act Amendment Act, No. 28, 1902. These Acts provided funds
to carry out drainage and irrigation works.
1902
The Water and Drainage Act, No. 93, 1902 was to provide for the annual
expenditure of £200,000 for a period of 5 years on works of water supply,
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conservation, irrigation and drainage; for the constitution of trusts to administer
the same in certain cases; and to authorise the raising of said sums by loans.
1902
New South Wales Royal Commission into the Water Supply of Sydney and
suburbs ??
1906-1911 water issues were combined in the Water and Drainage and Artesian Wells
(Amending) Act, No. 59, 1906 and later in the Water and Drainage
(Amendment)
Act, No. 20, 1911.
1912
Finally the Water Act, No. 44,1912 was proclaimed, being an Act to consolidate
the Acts relating to Water Rights, Water and Drainage, Drainage Promotion,
and Artesian Wells. The Water Act 1912, and with amendments is still in force.
1913
Formation of the Water Conservation and Irrigation Commission
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