From natural flow to engineered resource : history of conflict over water access rights in new south wales (1825 - 1944)
Creators: name: Jean, Elinor
Publisher: name: The Australian National University
Year: 2015

description: Australia has a rich history of water law and conflict. This thesis examines water disputes and regulation in New South Wales from the early nineteenth century until the turn of the twentieth century. The decades leading to the 1850s were a formative era for New South Wales water law. From the 1850s onwards, the challenges facing the law multiplied, as water use intensity increased and water users sought greater development. This research explores the resulting conflicts over water through the lenses of relationships between water users and the natural environment, other water users and the state. This analysis is assisted by James Linton's theory that modern, Western society has re defined water as an abstract resource, dissociated from ecological and social meanings. The operation of the common law riparian doctrine within the Australian landscape was a key challenge for nineteenth-century water law. In particular, riparianism's focus on 'natual flow' placed major limits on the development of watercourses. At the turn of the twentieth century, the riparian doctrine was replaced with a statutory public administration regime. The removal of water access constrained by riparian landownership and concepts such as 'natural flow' enabled human transformation of watercourses on a landscape scale. This qualitatively changed the nature of end user rights to access the waters of rivers and streams, causing multiple separations in the relationships between water, water users and the natural landscape. Twentieth-century water management was characterised by the construction of major storages on the headwaters, the regulation of riverflow and the diversion of water to irrigation settlements. The vesting of flowing water in the Crown and state investment in water development assisted the evolution of water as an 'engineered resource', altering the relationship between water use, and the geography of the landscape and rhythms of the seasons. The centralisation of water resources allowed the state to manage water as a unified and homogeneous yet divisible resource, and water access rights came to express an increasingly abstract relationship between water and its natural ecology. The state's monopoly control over the major watercourses also allowed the Crown to become the arbiter of end user access to water. As a result, water sharing relationships between water users shifted from disputes between individuals or among communities of users, to public debates centred around state management, planning and allocation decisions. Water disputes also evidence scattered claims by water users for use-based, decentralised, and public water access regimes. While none of these categories has had a defining influence on the structure of the general water law, they provide further insights into the shifting relationships between water users, the natural world and the state - in particular, reiterating the tendency of New South Wales water law to define water use independently from social and ecological meanings. These patterns from New South Wales' water law history provide valuable insights into modern-day water law doctrines and can assist to better understand the foundations of today's water conflicts.