WATER RESOURCES GOVERNANCE AND THE LAW

 

D E FISHER

ABSTRACT:

The way in which water resources are managed is a matter of interest and of concern to a wide variety of persons and institutions in Australia. These include governments at all levels, participants in the water industry, and consumers of water such as irrigators, miners, industrial enterprises and householders. The expectation increasingly embedded in the legal system is that water resources will be managed sustainably. This introduces additional perspectives such as not only ecological or environmental sustainability but also economic and social sustainability. In other words, management is becoming increasingly complex. According to the National Water Initiative the management of water resources is to comprise a nationally-compatible, market, regulatory and planning based system of managing all waters. The trilogy of mechanisms thus comprises plans, regulations and a market. The achievement of ecologically sustainable development based upon these three mechanisms is a challenge for the legal system. This article considers the relationship between these three mechanisms as instruments of law through an analysis of the relevant legislation and of a number of recent judicial decisions that have had to confront these challenges. It is suggested that what is emerging through the system is a notion not simply of management of but rather of governance of water resources. Such a notion of governance seeks to bring together within a coherent framework the interests and concerns of everyone involved and at the same time to impose upon them a sense of responsibility - but perhaps not yet legal liability - for the way in which water resources are managed.