Water Journal : Water Journal February 2015
FEBRUARY 2015 water 51 Feature article and require difficult choices to be made about the division of water between competing water users. The history of the 2010 Guide to the Proposed Basin Plan, the Basin Plan, and the numerous water plans in New South Wales that have been legally challenged by irrigators, highlight that water plans can be controversial. Understandably, Governments may prefer to avoid that kind of controversy. The former Coalition Victorian Government’s stated position, according to the then Victorian Government’s (2012) Response to the Proposed Basin Plan, is that the WRPs contemplated by the Basin Plan would undermine the security of Victorian water entitlements: ‘The Victorian Water Act sets out an entitlement framework under which rights to take water are akin to (though not amounting to) property rights ... The arrangements under the Commonwealth Water Act impose the concept of a ‘water resource plan’ (WRP), which encompasses both an entitlement framework and the means by which entitlements can be adjusted by government in a directive manner. This approach directly contradicts arrangements in Victoria, where entitlement security fundamentally underpins investment in irrigated agriculture across the State. ... The Victorian Water Act does not currently recognise the concept of a WRP or its equivalent...’ According to Gardner et al. (2009, p 355–356), of the numerous water planning mechanisms under the Water Act 1989, those that are the most relevant to consider relate to water supply protection areas under Division 3 of Part 3 of the Water Act 1989. The provisions do not expressly specify the definition of a consumptive pool. Victoria does not have an adequate mechanism that defines the consumptive pool of water available on a catchment-by-catchment basis so that water for consumptive use may be allocated after water for environmental needs has been determined. This is contrary to the spirit of the NWI and the principles of ICM because it undermines the integration between Victorian legislation and the Basin Plan. reVieW of ViCToria’s WaTer laWs In 2013/14 the former Victorian Government carried out a review of Victoria’s water laws. According to the Office of Living Victoria’s (2013) Overview of the Water Bill Exposure Draft, objectives of the review included to: • ‘Better align... with requirements of the Water Act 2007 (Cth) and Murray-Darling Basin Plan’; and • ‘Facilitate... Victoria’s compliance with the Murray-Darling Basin Plan while maintaining the integrity of Victoria’s entitlement regime.’ Following the review, the Water Bill 2014 (Vic) was prepared and in June 2014 had its first and second reading speeches in the Victorian Legislative Assembly. The Bill proposes to introduce Water Resource Management Orders (WRMO). According to the Bill’s second reading speech, WRMOs will consolidate the existing water management arrangements as a kind of umbrella under which all entitlements in an area will sit, helping to simplify Victoria’s comparatively complex system of water planning instruments. WRMOs embody many of the principles of ICM. According to the Bill’s second reading speech, 10 to 15 WRMOs will be needed to cover the entire State, which will be based on ‘natural boundaries and cover multiple river basins’. WRMOs are to first be prepared in draft, submissions sought from the community and authorities, before a WRMO comes into effect following publication in the Victoria Government Gazette. To give effect to the requirements of the Basin Plan, specific provision is made for the incorporation of a ‘Basin Plan order’ in a WRMO. One anticipates that some of the WRMOs will be submitted for federal accreditation in accordance with the Water Act 2007 (Cth). WRMOs may also apply or adopt ‘any matter contained in any document’, which will presumably facilitate the use of some existing state instruments in WRMOs, thereby reducing some of the substantial work otherwise required by Victorian administrators in seeking to give effect to the Basin Plan. Proposed Regional Resource Assessments and Strategic Reviews will assess consumptive uses in particular regions, however, there is no proposed requirement that WRMOs or any other instruments must define the consumptive pool only after the environmental needs of the catchment are met. ConClusion This article has shown that Victoria has been out of step with other Basin States in integrating its legislative and policy framework with the Basin Plan. Recent proposed changes seek to address these issues to a degree. Victoria’s proposed WRMOs implement many of the principles of ICM and address a clear need for Victoria to have an instrument that better aligns with the needs of the Basin Plan. However, where the Water Bill 2014 (Vic) still departs from NWI policy is that there is no proposed requirement that WRMOs must define the consumptive pool after the environmental needs of the catchment are met. The Water Bill 2014 (Vic) is not law yet, and its future with a new Victorian Government remains unclear. With a recent change of Government, it is timely for the new Victorian Government to continue the law reform process to bring Victoria’s water laws into line with other Basin States and give full effect to NWI policy and the principles of ICM. WJ referenCes Nelson R (2005): Legislation for ICM: Advancing Water Resources Sustainability. 22 EPLJ 96. Matthews K (2014): Implementing Legislative and Governance Frameworks for Integrated Catchment Management: The Gap Between Theory and Practice. 31 EPLJ 385. Godden L & Peel J (2010): Environmental Law: Scientific Policy and Regulatory Dimensions, Oxford University Press, South Melbourne. National Water Commission (2013): The National Water Planning Report Card, released 30 June 2014, pp 207 and 211. Victorian Government (2012): Submission to the Proposed Basin Plan www. depi.vic.gov.au/__data/assets/pdf_file/0007/176578/Basin-Plan-Proposal- April2012.pdf (accessed 19 December 2014), p63. Gardner A, Bartlett R & Gray J (2009): Australian Water Resources Law, LexisNexis Butterworths. Office of Living Victoria (2013): Overview of the Water Bill Exposure Draft, Information Sheet. The auThor Joseph Monaghan (email joseph.monaghan@ holdingredlich.com) is Special Counsel at Holding Redlich, and practices extensively in water law. This article is drawn in part from his current doctoral thesis on law and policy of the Murray-Darling Basin.
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