Legislative Assembly for the ACT: 1998 Week 10 Hansard (26 November) . . Page.. 3094 ..
MR KAINE (continuing):
would, at the very least, be mean-spirited. In New South Wales a rural land-holder may block a watercourse to store water in a dam with a capacity not exceeding seven megalitres. There is merit in rural land-holders in the Territory having assurances of a similar right without having to negotiate a morass of bureaucratic requirements to achieve it.
The Bill should make it clear that it confers no power for any authority to order modification of dams and bores already in place on rural land. Proposed section 28(1)(f) empowers the Minister to direct the modification of dams. This is a power capable of unjust application because if a rural land-holder at his own expense builds a farm dam, the time to modify the structure is in the design stage before the dam is built, not at some future time. To reduce the height of an existing dam wall that is already built to allow greater flow into a stream is, to say the least, bad engineering chasing bad water management, and it will negate capital investment made by prudent land-holders in good faith.
The Bill in several places provides power to remove water rights already enjoyed. It provides for cutting the total water pie into more and inevitably smaller slices and there is in this an uncomfortably large scope for injustice. Requiring the authority to consult with all of the folk whose interests a water usage proposal would affect and to take proper account of the outcome of those consultations when implementing the proposal would bring the injustice within acceptable dimensions. This process will not be easy, but I think it is essential.
Let me sketch some hypothetical examples. Land-holder A relies on a licensed bore for his livestock or to irrigate an orchard, vineyard or market garden. Land-holder B wants to sink a bore to draw water from the same aquifer for an equally valid rural purpose, but the authority assesses that the total draw-up cannot supply the needs of both without stressing the aquifer. Taking from A and giving to B, or denying B's application because it would diminish a prior right enjoyed by A, bristles with difficulties and the assessment could be wrong anyway. Or A might want to build a dam to store rain that falls on his land at the top of a chasm, but B opposes the project on the grounds that it will diminish the water flow into a dam on his land further down the hill. Both parties have legitimate reasons to have water storage.
The Bill would do a service by requiring the parties in either of these cases, or indeed any case, where A's proposal to take water has potential to affect B's interests, to consult with each other and with the authority to try to work out a compromise before final decisions are taken and by spelling out some user-friendly ground rules for both of these processes. The Bill is silent on such issues. And this situation to confer initial review of decision jurisdictions on the AAT is to plug the hole in the dam, if you like, after much of the water has leaked away. AAT jurisdiction proceeds from a bureaucratic decision already taken and I would like to see a more humane and less antagonistic approach in these matters. Consultation without confrontation before setting the decision in concrete has much in its favour and I rather fear a heavy-handed administration which has made up its mind and has the legal authority to turn that into a fait accompli.