The River Murray Dispute is one that has defined the Australian federation since its inception, although its nature has changed as the River’s use for navigation and trade has receded and its importance as a water source for irrigation and drinking has increased. Nowhere is the dispute felt more strongly than in the downstream State of South Australia. Adam Webster ponders the issues behind, and the outcome of, any legal challenge launched by the South Australian over this ongoing dispute.
Since Federation the allocation of water from the River Murray has been determined by a series of political agreements between the States and the Commonwealth. However, what would happen if one State refused to negotiate and demanded a greater share of the water? Worse still, could an upstream State dam the river completely leaving South Australia without a drop of water?
It has been reported that the South Australian Government has received legal advice as to potential constitutional challenges regarding the allocation of water from the River Murray. This is not the first time that the South Australian Government has threatened to take this dispute to the High Court. Before examining some of those current legal arguments it is important to understand the history of this dispute.
The River, Navigation and Droughts
During the late 19th century the use of water from the River Murray became an increasingly important issue for the colonies, especially South Australia. The River Murray was, for South Australia, a vital interstate trade route and maintaining adequate water levels for navigation was crucial.
Navigation of the Murray commenced during the 1850s. By the 1860s there were almost 20 steamers transporting goods up and down the river and during the 1870s there were literally hundreds of steamers along the river. A navigable river made it easier to transport the wool clip from rural New South Wales and Victoria to port in South Australia, and to deliver goods to the inland towns along the river.
The steamers were, however, not only competing against each other but also with the unpredictable Australian climate. South Eastern Australia was affected by drought in 1864-6, 1880-6 and again in 1895-1903. During these periods river levels dropped significantly and sections of the rivers were not navigable to the steamers. Some sections of the river were so low that they were nothing more than a series of water holes. This resulted in substantial delays in transporting goods. It was, at least in part, the drought during the early 1880s that caused the colonies to consider the question of how best to utilise the waters of the River Murray. (It is interesting to note that even in recent times it appears that the question of water rights receives greatest attention in times of drought. One does wonder whether attempting to resolve these matters in times of crisis leads to the optimum solution. History would seem to suggest that it might not.)
Water Conservation, Irrigation and the Royal Commissions
Navigation was not the only issue of interest to the colonies, which were also eager to develop conservation (water storage) and irrigation schemes along the River. In 1884 the New South Wales Government appointed a Royal Commission on the Conservation of Water. The purpose of the Commission was to investigate water conservation and distribution within that colony.
Victoria was keen to pursue irrigation along the River Murray and, like New South Wales, appointed a Royal Commission in 1885 to investigate the use of water within its colony. In 1887 the Victorian Parliament passed legislation granting the Chaffey Brothers (George and William) 250,000 acres of Crown land for the development of an irrigation scheme at Mildura. The brothers also established a similar scheme in South Australia at Renmark, obtaining a further 250,000 acres in that state.
It was perhaps during the 1880s that the importance of the waters of the River Murray and its regulation were truly realised. Navigation was flourishing and irrigation schemes were being developed. Maintaining adequate water levels was critical for navigation, while it was essential for water to be taken from the river if the irrigation schemes were to succeed. However, for control or regulation of water levels and limits on volumes of extraction to be fully effective it would be necessary to regulate across the entire river system. Regulation across the entire system would require agreement from all three colonies. Unfortunately, reaching such agreement proved impossible.
South Australia was anxious that irrigation in the eastern states did not prejudice its river trade. During a series of correspondence between the Premiers of South Australia and Victoria, the Victorian Premier suggested that South Australia also appoint a Royal Commission so that the members of the three Commissions could meet and discuss the issue of inter-colonial water rights. Eager for the three colonies to meet, the South Australian Royal Commission was established to ‘confer and consult with any Commission appointed, or to be appointed, by the Governments of New South Wales and Victoria.’
Despite the encouraging signs prior to the appointment of the South Australian Royal Commission, a meeting with representatives from all three colonies proved impossible – primarily due to the position taken by New South Wales. The Colonial Secretary of New South Wales, Henry Parkes, told the South Australians that east of the South Australian boundary the River Murray was in New South Wales and his colony could do with the water whatever it saw fit. Parkes relied upon clause 5 of the New South Wales Constitution Act 1855 (Imp) 18 & 19 Vict, c 54 which stated that ‘the whole Watercourse of the said River Murray, from its Source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales. New South Wales claimed that the grant of the whole watercourse included the water and a right to do with it as it saw fit. The Act made no mention as to how to allocate the water between the three colonies.
Unfortunately, attempts to have the Commissions of each of the three colonies meet failed. However, by the time the South Australian Royal Commission had delivered its final report in 1894, attention had turned to the Federal Conventions and the drafting of Australia’s Constitution. It was hoped by South Australia that the Federal Conventions would provide an appropriate forum for the resolution of this matter.
The Federal Conventions: Drafting the Constitution
It was not the purpose of the Federal Conventions to debate the existing position of the law with respect to inter-colonial water rights. However, in determining what role any future Federal Government or Federal Court should have in resolving this issue, the delegates’ arguments were informed by their understanding of the current state of the rights of the colonies to water from inter-colonial rivers. (By ‘inter-colonial’ or ‘interstate’ rivers I mean a river that flows through more than one colony or State respectively.)
The primary concern of the South Australian delegates was to ensure that the River Murray and its tributaries remained open to navigation. By the time of the Federal Conventions in Adelaide in 1897 and Melbourne in 1898 river boat numbers had started to decline as the railways expanded inland and drought had again hit large parts of south-eastern Australia. The South Australians were keen to ensure that any draft Constitution did not favour the railways over river navigation and thereby place further pressure on the already struggling river trade.
Navigability of the rivers, was not South Australia’s only concern. During the Adelaide Convention when Josiah Symon declared that ‘we only want as much water as will maintain the navigability of the river,’ fellow South Australian John Gordon was quick to qualify the statement and added, ‘[W]e want a little more. We make a claim for a fair proportion of the water of the Murray for irrigation.’ Irrigation along the River Murray had commenced within South Australia at places such as Renmark and the colony was eager to ensure that it would continue. These desires also shaped the colony’s arguments regarding existing rights, for they were keen to demonstrate not just an existing right to navigation, but an existing claim to a ‘fair share’ of the water from the rivers. Unlike today, the environmental needs of the River played no part in the discussions.
There were two grounds upon which the South Australian delegates argued that each colony had a right to water from inter-colonial rivers. Both arguments were made by analogy. First, South Australia claimed that there existed a right at international law to navigation of rivers flowing through two or more nation states and that the same principle applied between the colonies. This, they argued, granted South Australians the right to navigate the River Murray and its tributaries. However, this ‘right’ that South Australia claimed was arguably not a legal right, but a moral right. The South Australians remarked that many countries in a similar position to the Australian colonies had been able to reach agreement and sign a treaty to regulate the sharing of water. South Australia contended that agreement should also be possible between the colonies and that such an agreement should be reflected in the Constitution. As we now know, no such agreement was reached.
The second argument put forward was that an analogy could be drawn between the private law riparian rights doctrine and the rights of the colonies. South Australia contended that if the colonies were instead individual riparian proprietors they would have rights to water and that, if those rights were available to individuals, they ought equally to be available to the colonies. Both of these arguments were contested by the delegates of New South Wales and Victoria. In rejecting South Australia’s claims, the delegates of New South Wales repeated their earlier argument that the Imperial Parliament had granted the water within its borders to New South Wales.
The Constitution and Section 100
Federation and Australia’s newly drafted Constitution did not resolve the issue of interstate water rights. Reaching agreement on the wording of a provision proved extremely difficult and the delegates from New South Wales and Victoria were unwilling to hand control of the rivers over to the Commonwealth. The final wording of the Constitution remained silent on the issue of a State’s right to water from interstate rivers. The only section directly addressing the regulation of the ‘waters of rivers’ is section 100 which states: ‘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.’
In the case of Arnold Justices Gummow and Crennan noted that one further issue with regard to water rights which may require consideration in the future was ‘whether as between riparian States and their residents section 100 guarantees access to the use of the waters for the purposes mentioned, or does no more than impose a restriction upon the exercise of the power of the Commonwealth. However, a review of the history of the drafting of section 100 would suggest it was only ever intended to be a limitation on Commonwealth power.
Federation and Interstate Water Rights
If section 100 of the Constitution does not provide a solution, then what about South Australia’s argument that there existed an ‘interstate riparian right’? Could an argument first raised before Federation hold the answer to the River Murray dispute? When the argument was first raised the water rights of individuals was governed by the common law riparian rights doctrine. The common law riparian rights doctrine was based on notions of reasonableness and developed to ensure that upstream users did not significantly diminish the flow of the river. However, that doctrine has since been superseded by legislation within each of the States.
One difficultly might be in how the analogy between the rights of individuals and the rights of the States is drawn. How would a Court determine what a reasonable share of the water is between the States? Should it be divided equally? Should the division be proportionate to the population of each of those States? What if one State is more efficient with its water use? Should that State get more or less water? Whilst it might be easy to show that damming the River and stopping to flow completely is unreasonable, it is more difficult to determine where to draw the line between a reasonable and an unreasonable share of the water.
However, is there something about the very nature of a federal system which must permit for the resolution of the River Murray dispute? As Tasmanian Andrew Inglis Clark noted just after Federation, when two countries are unable to resolve a dispute between each other the ultimate solution may be a declaration of war. However, within a federation States have agreed to come together to form one nation and surely there must be some internal legal mechanism within the federation which can provide a solution to such disputes – the alternative would otherwise seem to be secession.
Whilst war with Victoria might seem appealing to a small minority of South Australians (we could reclaim the Grand Prix at the same time), a legal solution is perhaps preferable. However, as I have explained, determining the nature of an interstate water right may be a difficult task for any court.
Adam Webster is a PhD candidate at the University of Adelaide and 2012 Fulbright Scholar.