Managing wetlands sustainably as ecosystems : The contribution of the law (part 1)

The ways in which a society set standards of behaviour and of conduct for its members vary hugely. For example, accepted practices, recognised customs, spiritually or morally inspired norms, judicially declared rules, executively formulated edicts, formal legislative enactments or constitutionally embedded rights and duties. Whatever form they assume, these standards are the artificial construction of the human mind. Accordingly the law - whatever its form - can do no more and no less than regulate or set standards for human behaviour, human conduct, and human decision-making. The law cannot regulate the environment. It can only regulate human activities that impact directly or indirectly upon the environment. This applies as much to wetlands as components of the environment as it does to any other components of the environment or the environment at large. The capacity of the law to protect the environment and therefore wetlands is thus totally dependent upon the capacity of the law to regulate human behaviour, human conduct and human decision-making. At the same time the law needs to reflect the specific nature, functions and locations of wetlands. A wetland is an ecosystem by itself; it comprises a range of ecosystems within it; and it is part of a wider set of ecosystems. Hence, the significant ecological functions performed by wetlands. Then there are the benefits flowing to humans from wetlands. These may be social, economic, cultural, aesthetic, or a combination of some or of all of these. It is a challenge for a society acting through its legal system to find the appropriate balance between these ecological and these human values. But that is what sustainability requires.The ways in which a society set standards of behaviour and of conduct for its members vary hugely. For example, accepted practices, recognised customs, spiritually or morally inspired norms, judicially declared rules, executively formulated edicts, formal legislative enactments or constitutionally embedded rights and duties. Whatever form they assume, these standards are the artificial construction of the human mind. Accordingly the law - whatever its form - can do no more and no less than regulate or set standards for human behaviour, human conduct, and human decision-making. The law cannot regulate the environment. It can only regulate human activities that impact directly or indirectly upon the environment. This applies as much to wetlands as components of the environment as it does to any other components of the environment or the environment at large. The capacity of the law to protect the environment and therefore wetlands is thus totally dependent upon the capacity of the law to regulate human behaviour, human conduct and human decision-making. At the same time the law needs to reflect the specific nature, functions and locations of wetlands. A wetland is an ecosystem by itself; it comprises a range of ecosystems within it; and it is part of a wider set of ecosystems. Hence, the significant ecological functions performed by wetlands. Then there are the benefits flowing to humans from wetlands. These may be social, economic, cultural, aesthetic, or a combination of some or of all of these. It is a challenge for a society acting through its legal system to find the appropriate balance between these ecological and these human values. But that is what sustainability requires.

Managing Wetlands Sustainably as Ecosystems: The Contribution of the Law (Part 2)

In this Part 2 attention is turned towards the legal arrangements in nation states for managing wetlands. These national arrangements have effect within the international arrangements already mentioned and any regional arrangements that are relevant. However, each national system is a reflection of its own historical, cultural, political and constitutional background. It is the purpose of this Part 2 to review and assess the national approaches to wetlands management. This involves an analysis of a range of instruments. These are: constitutional rules; strategic rules; regulatory rules; and management rules. Each of these sets of rules performs different functions, assumes different forms and is differentially capable of enforcement.

Murray-Darling basin governance : the focus of the law

The legal arrangements for the management of the Murray-Darling Basin in Australia have changed significantly over the years. The Constitution of the Commonwealth has led to the legal arrangements for the management of the Murray-Darling Basin. The Water Act 2000 of Queensland aimed at advancing sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water. The Water Management Act 2000 of New South Wales ensures the sustainable and integrated management of the water resources of the state benefiting the present and future generations. The Natural Resources Management Act 2004 of South Australia applies to water resources and to other natural resources. The Act aimed at assisting the achievement of ecologically sustainable development in the state.

A jurisprudential model for sustainable water resources governance

The legal arrangements for the management of water resources are currently a complex matrix of rules of various kinds. These rules perform a diverse range of functions. Some are part of what may be described as the macro-legal system for the governance of water resources. This includes paralegal rules in the form of statements of value, objective, outcome or principles . Others are part of the micro-legal system for the governance of water resources. This includes traditional legal rules in the form of statements of standards in relation to individual conduct, behaviour or decision making. These legal arrangements may be international, regional, national or local. Accordingly some apply to nation states within the international community. Others apply to the regulatory agencies making decisions about water resources within nation states. Ultimately most of these legal arrangements apply to those who use and develop water resources for particular purposes and in particular locations. In accordance with this framework, rules explain how water resources should be used in particular circumstances and how decisions should be made to ensure the effective planning and regulation of water resources.

Editorial : Federal developments

On 10 May 2011, Federal Treasurer Wayne Swan MP delivered the Federal Budget for the 2011–2012 financial year. The Budget contains a number of new initiatives, financial redistributions and reductions that relate to Australia's current regulatory framework governing the environment, climate change and renewable energy. These are set out below...

Eco-crime and freshwater

The unsustainable and exploitative use of one of the most important but scarce resources on the planet - freshwater - continues to create conflict and human dislocation on a grand scale. Instead of witnessing nation-states adopting more equitable and efficient conservation strategies, powerful corporations are permitted to privatise and monopolise diminishing water reservoirs based on flawed neo-liberal assumptions and market models of the ‘global good’. The commodification of water has enabled corporate monopolies and corrupt states to exploit a fundamental human right, and in the process have created new forms of criminality. In recent years, affluent industrialised nations have experienced violent rioting as protestors express opposition to government ‘freshwater taxes’ and to corporate investors seeking to privatise drinking water. These water conflicts have included unprecedented clashes with police and deaths of innocent civilians in South Africa (BBC News, 2014a); the United Nations intervention in Detroit USA after weeks of public protest (Burns, 2014); and the hundreds of thousands of people protesting in Ireland (BBC News, 2014,b; Irish Times 2015). Subsequently, the commodification of freshwater has become a criminological issue for water-abundant rich states, as well as for the highly indebted water-scarce nations.

The Law and Governance of Water Resources : The Challenge of Sustainability

To achieve the sustainable use and development of water resources is a daunting challenge for both the global and local communities. It requires commitments by all groups within the international, national and local communities from their own particular, possibly conflicting, perspectives. Without a set of coherent legal arrangements designed to ensure effective governance of water resources, their sustainable use and development are unlikely to be achieved. This study looks at how the legal arrangements for managing water resources have evolved across the continents over hundreds of years; their relevance for contemporary society; how the norms of current international and national legal regimes are responding; and, most importantly, how legal rights and duties should be structured so as to achieve sustainability in the future.

Water rights and water governance : a cautionary tale and the case for interdisciplinary governance

Although Australia is the world’s driest continent without the complication of international borders and a generally good governance reputation, its record of water governance is very poor. This chapter considers some of the potentially general lessons that might be derived for water governance. These include: the difficulties of delineatingwater rights; the apparent preference for creating property rights in unsustainable uses of water while failing to deliver basic water rights; the inter twining of carbon and water crises; the dangers of privatising networks that form natural monopolies; the dangers of disciplinary hubris where interdisciplinary understanding is critical. It concludes by starting to address some of the water governance issues raised by globalisation.

To have your caveat and claim it, too : steps to take to protect an interest in land or water allocation

Caveats as protection for unregistered interests - lapsing and non-lapsing caveats - caveator - use only in appropriate circumstances

Interjurisdictional water issues in Australia : Challenges for the future

For more than a hundred years water rights were granted in accordance with the legislation of the states and territories. Until recently, this legislation conferred a relatively unlimited discretion on the relevant regulatory institutions. Over the past 15 years, the Commonwealth has taken a greater interest in how water resources should be managed: first by formulating and funding policies and strategies through COAG, and then by enacting the Water Act 2007. This Act has created a much more prescriptive regime for planning and managing Australia’s water resources while at the same time entrusting its operational implementation to the states and territories. This has the potential to create tensions between the legal regimes of the Commonwealth and those of the states and territories. This article seeks to examine some of these issues.

'Water view' from cyberspace : building resilient communities by identifying water risks

The perceived desirability of water views continues to lead to increasing numbers relocating to coastal regions. Proximity to coastal water brings with it unique risks from rising sea levels; however, water can present a risk in any area, whether or not you have water views. Recent Australian and international disasters show that even inland populations not located in traditional flood areas are not immune from water risks. The author examines the nature of these risks and shows how the internet can be used as a tool in identifying risk areas. The author also highlights the need to ensure accuracy of the data for valuation and planning purposes and identifies flaws in the current data provision.