Water resources, whether underground, on the surface, or rainwater resources, have significant importance in most legal systems and jurisdictions. Like other minerals (gold, silver, coal, iron ore, petroleum, etc.) ownership of waters and the nature of property in water is of significance in using and managing water resources. In Australia ownership of water, including groundwater, is based on the common law of England as entered and applied in Australia since the settlement as well as extensive State and Commonwealth statutory provisions. As water intensive activities (including agriculture, mining and industrial undertakings) are developing and as water resources, including underground water, are shrinking, traditional legal questions such as who owns the water and what is the nature of the ownership of the water is becoming important. Therefore, these types of issues are appearing in litigation in Australia.[1]
This paper uses a theoretical legal research method where existing legal principles (under common law and legislation) are analysed in light of available case law. It reviews and analyses the ownership of water under the common law of Australia. This is particularly significant given that common law, unlike like its approach to mineral resources, considered water to be common property instead of recognising water resources as private property.
Nevertheless, extensive legislation and policy initiatives, by the Commonwealth and States and Territories, have significantly altered the traditional position of common law in relation to property rights in water.
This paper identifies the possible gaps where reform of the relevant law may be necessary in relation to ownership of ground water in Australia and the extensive legal framework of licencing of groundwater resources in South Australia.
[1] A leading case on the issue of nature of property and ownership of groundwater was ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140