Page 2870 - Week 09 - Thursday, 18 August 2005
I just want to refer again to Mrs Dunne’s comments. There was a challenge in the tail end of her speech. It just does seem to me that in a small Assembly like this, and especially amongst an opposition and a crossbench, there is a lot of scope for conversation. I would have really appreciated having a conversation with Mrs Dunne beforehand because I think I would have benefited from the detailed work that she has done. Perhaps we might have been able to work together a bit on this one because I actually think that we do have quite a few common interests.
MR MULCAHY (Molonglo) (11.00): I would like to make a few comments following on from what Mrs Dunne has had to say, focusing particularly on the issue of the moratorium about which I have had representations from constituents and people affected by the plan. The bill, as amended, will create a moratorium on the issuing of licences to extract and it would appear from the advices that it will be for a period of two years, commencing with the enactment of this bill.
The concerns that have been raised relate to the level of consultation that should have occurred. I understand that the response that Environment ACT have given to the opposition was that they consider that the media release that was issued when the bill was introduced in May suffices in that regard. I think that, on a matter as significant as this, a greater level of consultation should have occurred. Other issues that Mrs Dunne alluded to in relation to a matter before the courts, which I will make mention of briefly, suggests that a wait and see approach would be appropriate for the time being.
Obviously, the creation of a moratorium impacts not only on environmental issues, but also issues surrounding property law, and indeed constitutional law. It would seem from this legislation that it is the clear intention of the government to circumscribe people’s access to ground and surface water. The moratorium is so the government can decide the size of the water resource and then work out a new scheme for access to the resource. But the long and short of it is that people’s access to water will be curtailed. I guess what has troubled me through much of this debate, and we had discussions at estimates, is that I am concerned to try to feel comfortable that good science is behind the approach that is being taken in a number of these cases.
I am also concerned as to what the legal position will be in terms of people’s rights, their property rights in particular, and I think that is an issue that warrants further consideration. Making particular mention of the case of Rashleigh v Environment Protection Authority, the ACT Supreme Court has found that the denial of licensing rights is an unlawful interference with property rights. Indeed, the court found during this case that pre-1998 leaseholders have an irrevocable right to use the bore water under their property. This is recognised by the act, which provides to the government:
The right to the use, flow and control of all water of the territory, other than groundwater, under the land, the subject of a lease of territory land granted before the commencement of this section, is vested in the Territory.
The position of the law at the present time is that these residents have a right to use the water under their land. However, I should note that, while acknowledging this right, Justice Crispin also recognised the need for the use of bore water to be licensed, and this is in recognition of the environmental interests that are tied to this issue.