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Type: Thesis
Title: Defining rights, powers and limits in transboundary river disputes: a legal analysis of the River Murray
Author: Webster, Adam Lyall
Issue Date: 2014
School/Discipline: Adelaide Law School
Abstract: Since Federation, the allocation of water from the River Murray between States of Australia has always been determined by political agreement. In 1914, the first formal agreement between New South Wales, South Australia, Victoria and the Commonwealth was reached. Subsequent agreements as to the allocation and regulation of the water of the River Murray have never been easy to reach and have caused tension between the States. As a consequence, there have been occasions when a State – most commonly South Australia – has considered its legal position (and the possibility of litigation) in the absence of an intergovernmental agreement. That, of course, has only added to the tensions associated with creating an intergovernmental agreement. The uncertainty of how the waters of the Murray might be shared in the absence of an intergovernmental agreement has led to many assertions that the States have a ‘right’ to a share of the waters of the River and, moreover, that these ‘rights’ are enforceable by the High Court. This thesis examines the allocation of water between States from a river that flows through or forms the border between two or more States (a ‘transboundary river’) in the absence of an intergovernmental agreement, with reference to the current known state of the law. To put it another way, the thesis tries to anticipate how the High Court might approach this problem if faced with litigating State parties agitating these legal questions. In this thesis I demonstrate that arguments contending that a State has, for example, a common law ‘right’ to a ‘reasonable share’ or ‘fair share’ of the water from the Murray may not provide the best solution. Instead, the solution to the problem lies in examining the limits on State legislative and executive power. However, such a conclusion does not leave one State at the mercy of its upstream counterpart. I contend that there are limits on a State’s legislative and executive power with respect to regulating a transboundary river that ensure each State has, at a minimum, access to sufficient water from transboundary rivers to meet the critical human water needs of the communities within the State.
Advisor: Williams, John Matthew
Hinton, Martin
Dissertation Note: Thesis (Ph.D.) -- University of Adelaide, Law School, 2014
Keywords: River Murray; water rights; transboundary rivers; interstate rivers; interstate disputes
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