Bartlett's Blog

Senator Bartlett (Queensland) asked the Minister representing the Minister for the Environment and Water Resources, upon notice, on 29 January 2007:

With reference to the Government’s water policy—

(1)
In Australia, is the water that falls on a person’s roof, the property of that person or the property of government.
(2)
If it is not the property of the individual person, under what legislation in Australia, are rights to water that falls on a person’s roof vested in governments, as claimed under clause 2 of the National Water Initiative (NWI) agreement.
(3)
Under clause 2 of the NWI agreement, can governments, at their discretion, set entitlement regimes for the use of water that falls on a person’s roof in Australia; if so, under what circumstances would state and federal governments issue a specific entitlement to persons who capture water from their roof and what would that entitlement be.
(4)
What magnitude of rainwater collected from roofs would be sufficient to warrant the issuing of specific entitlements to use this class of water as has been proposed by the National Water Commission.
(5)
Does the Government rule out setting an entitlement regime for persons to use water collected from roofs in rainwater tanks; if so, will the Federal Government ask the state governments to amend the NWI agreement to make clear that no rights to water that falls on a persons roof are vested in governments.
(6)
Is it correct that section 7 of the Victorian Water Act 1989 states, ‘The Crown has the right to the use, flow and control of all water in a waterway and all groundwater’; if so, is it the Commonwealth’s view that, for the purposes of the NWI, water from a person’s roof comes under this definition.
(7)
Is it correct that section 392 of the New South Wales Water Management Act 2000 states, ‘the rights to the control, use and flow of…all water occurring naturally on or below the surface of the ground, are States water rights’; if so, does water from a person’s roof come under this definition.
(8)
Is it correct that section 19 of the Queensland Water Act 2000 states, ‘All rights to the use, flow and control of all water in Queensland are vested in the State’, where: (a) ‘water means … (a) water in a watercourse, lake or spring; (b) underground water; (c) overland flow water; (d) water that has been collected in a dam’; and (b) ‘Overland flow water does not include … water collected from roofs for rainwater tanks’; if so, does water from a person’s roof come under this definition.
(9)
Is it correct that section 124 of the South Australian Natural Resources Management Act 2004 states, ‘the occupier of land is entitled to take surface water from the land for any purpose’ and does surface water mean ‘water flowing over land’.
(10)
Is surface water in South Australia: (a) water that is not captured and controlled; and (b) no-one’s property.
(11)
Can water that falls on a person’s roof in South Australia be surface water.
Answer
Senator Abetz (Tasmania—Minister for Fisheries, Forestry and Conservation)—The Minister for the Environment and Water Resources has provided to the following answer to the honourable senator’s question:

(1)
It is difficult to apply the concept of ‘property’ to naturally occurring water. It is better to look to the various ‘legal rights’ which arise in relation to that water. All states and territories have passed legislation which provides that the state or territory has primary rights of access to water, though these primary rights vary from state to state.
Subject to these state and territory primary rights, and other relevant laws, the owner of the land will have certain rights in relation to water which falls on their land, including roof water.

(2)
Historically, under the common law, rights to water were incidental to owning land (riparian rights and other related rights). Over time laws have been enacted by states and territories to vest the water in the Crown and provide for sensible water sharing in an arid continent.
The reference in clause 2 of the NWI is to these concepts in the state and territory regimes.

(3)
State and territory governments could establish entitlement regimes in order to regulate the use of water that falls on a person’s roof. These entitlements to use the water would be issued pursuant to legislation in each jurisdiction.
The circumstances under which state or territory governments might issue specific entitlements in relation to the capture of water from roofs, and the nature of that entitlement would be a matter for those governments.

(4)
This decision is a matter for each of the states and territories. It has not been proposed by the National Water Commission.
(5)
The Government sees no need for such an entitlement regime but as stated in response to part (4) of your question above, this is a matter for each of the states and territories.
(6) (7)
, (8), (9), (10) and (11) These questions go to the legal interpretation of state legislation. The Commonwealth is not in a position to provide an interpretation of these provisions for the purpose of answering these questions as these are not matters which are currently the subject of Commonwealth responsibility or policy development.