By Professor DE Fisher*
The status of rights and interests in relation to water has never been unambiguous. Are they rights of access, of use or of property? Is the status of individual rights the same as the status of the statutory rights of the State to the use and control of water? Much depends upon which stage of the hydrological cycle is relevant: water in its natural state, water stored in a reservoir, water piped to a distant destination, or water contained in a receptacle. The High Court has recently addressed some of these issues in the context of s 51(xxxi) of the Commonwealth Constitution restricting acquisition of property to acquisition on just terms. In undertaking this analysis the High Court has revealed an interesting range of approaches to legal reasoning. This article seeks to review some of these issues.
The full article can be accessed here: “Water law, the High Court and techniques of judicial reasoning” (2010) 27 EPLJ 85.
*Professor of Law. Queensland University of Technology.