Rights in Water and Irrigation Act 1914

The Act binds the Crown and statutory undertakers (s.26K) and directly affects any person who wishes to take water from a watercourse, wetland or underground source to which s.5C applies. This includes:

• Landowners and occupiers adjacent to watercourses or wetlands who rely on riparian rights under ss.9, 10, 20 or 21. These rights are now subordinate to management plans, Ministerial directions and licensing in declared areas.
• Irrigators and farmers who require licences for volumes beyond domestic/stock use or who operate within proclaimed groundwater areas (s.26B) or irrigation districts (Part IV).
• Mining and resource companies that take or interfere with water during operations; they must hold s.5C licences and comply with metering and reporting (Sch.1 cl.46).
• Water service providers licensed under the Water Services Act 2012, who appear in a dedicated part of the register (s.26GZJ(2)) and may pay royalty-style charges (s.27(1)(ga)).
• Local governments and public authorities that construct drainage, flood-protection or dewatering works; these may require licences or permits under local by-laws or regulations (ss.26O, 26P, 27A).
• Developers and dam owners; construction or alteration of dams on watercourses is prohibited without permit (s.17(3a)), with savings only for pre-2001 works (s.17A).
• Committees and community members who participate in local water resources management committees (Division 3C) or make submissions on plans (s.26GZB).
• Third-party interest holders; security interests in licences must be noted on the register (ss.26GZL–26GZM) and their consent is required for transfers (cl.34 of Sch.1).
• The Minister and Department (through the CEO), who exercise broad discretionary powers, maintain the register, prepare plans, delegate to committees and recover costs.

Indirectly, the Act affects all Western Australians through its objects of sustainable management and environmental protection (s.4). Prosecutions are summary (s.74) and may be brought by the Minister or authorised officers (s.26J). SAT review rights are available to applicants, licensees and affected persons (ss.26GG–26GI).

Rights are narrowly framed. Section 5B preserves limited landowner rights to drain land or build stock dams provided flow or quality is not sensibly diminished. Riparian and public-access rights under ss.9, 10, 20 and 21 allow free domestic, stock and (in some cases) garden irrigation use, but these are capped when water is augmented (s.26GA) and can be overridden by Ministerial directions during shortages (s.26GF). Licence holders enjoy the quantified entitlement stated in the licence (Sch.1 cl.15), transferable subject to Ministerial approval (Sch.1 cl.31) and capable of being the subject of security interests (Division 3E).

Duties are extensive. Licensees must comply with every term, condition and restriction (Sch.1 cl.18), maintain works (Sch.1 cl.43), notify changes of circumstances (Sch.1 cl.44) and install/operate meters where directed (Sch.1 cl.46). Persons taking water must minimise degradation (s.5E). Committee members owe duties of honesty, diligence and confidentiality (s.26GN). Prohibitions on unlicensed taking (s.5C), constructing artesian or non-artesian wells without licence (ss.26A, 26B), obstructing watercourses (ss.17, 25) and discharging sludge (s.18) are strict. Local by-laws can impose further monitoring, reporting and sampling duties (s.26L(3)(e)).

Ministerial powers include entry and inspection (s.26H), giving binding directions (ss.22, 26G, 26GC), approving plans after consultation (s.26GZE) and delegating to committees (s.26GP). The Minister must consider statutory criteria when exercising licensing discretion (Sch.1 cl.7(2)), including sustainability, environmental acceptability, public interest and consistency with plans and by-laws.

Review rights before the SAT are a key safeguard (Division 3B). Compensation is available in limited circumstances where Ministerial amendment or cancellation causes permanent loss of a previously lawful use (Sch.1 cl.39), but only after the claimant has mitigated loss and where the effect is deemed unfair relative to other users.

Offences carry criminal and civil consequences. Taking water contrary to s.5C attracts a $10,000 penalty plus $1,000 daily (s.5C(1)). Similar maximums apply to unlicensed well construction (ss.26A, 26B) and contravention of Ministerial directions (s.26G(3), s.26GC(2)). Obstruction of officials is punishable by $5,000 (s.70); refusing to surrender works attracts $10,000 (s.71). General penalty where none is specified is $10,000 (s.72). Continuing offences after notice (e.g. under s.17(4)) incur daily penalties.

The Minister may institute proceedings and need not prove damage to the Crown (s.26J). Prosecutions must commence within two years for certain obstruction offences (ss.17(5), 25(3)). Civil remedies for breach of statutory duty exist where another person’s rights are affected or degradation occurs (s.5E). The Minister can direct remedial works and recover costs as a debt (ss.17(6)–(7), 25(4)–(5), Sch.1 cl.18(3)(b)).

Licence sanctions include amendment, suspension or cancellation after opportunity to make submissions (Sch.1 cll.24–26), with SAT review. Security-interest holders must be notified of proposed actions (s.26GZO). Meters are presumed accurate (Sch.1 cl.47), easing proof in enforcement.

The Act is not standalone. It cross-references the Water Agencies (Powers) Act 1984 for definitions, entry powers (s.26H(1a)), regulation-making and by-law precedence (s.26L(5)). Local by-laws made under s.26L prevail over regulations but not over Water Agencies (Powers) Act 1984 by-laws (s.26L(4)–(5)). Management plans must be consistent with land-use planning instruments (Sch.1 cl.7(2)(h)(i)).

Interaction with the Water Services Act 2012 is explicit: water service licensees appear in a dedicated register part and may pay royalties (ss.26GZJ(3), 27(1)(ga)). The Environmental Protection Act 1986 overlaps on ecosystem protection; the objects in s.4 expressly require integration. SAT review procedures are governed by the State Administrative Tribunal Act 2004 (s.26GJ(4)).

Commonwealth laws such as the Environment Protection and Biodiversity Conservation Act 1999 may intersect where water extraction affects matters of national environmental significance. Government agreements are preserved (s.26K(1)). The Commercial Arbitration Act 2012 applies to compensation disputes (s.37, Sch.1 cl.17(3), Sch.1 cl.39(8)). The Transfer of Land Act 1893 and Registration of Deeds Act 1856 are engaged via the Registrar notification provisions (Sch.1 cl.42).

Local by-laws can exempt certain works or declare additional springs/wetlands (s.5(2), s.26L(3)(c)–(d)). The Act binds the Crown except where inconsistent with a Government agreement (s.26K).

The most significant modernisation occurred via the Rights in Water and Irrigation Amendment Act 2000 (No. 49 of 2000), which inserted the current Part III framework. It replaced fragmented riparian and proclamation-based rules with a unified licensing system (new s.5C and Sch.1), introduced statutory management plans (new Division 3D), local water resources management committees (new Division 3C), SAT review rights (new Division 3B) and a public register of instruments and security interests (new Division 3E). These changes implemented the National Water Initiative principles of sustainable use, trading and environmental allocation.

Subsequent amendments have been incremental. The Water Resources Legislation Amendment Act 2007 (No. 38 of 2007) refined Ministerial powers, committee membership, plan review cycles and metering provisions. The Water Services Legislation Amendment and Repeal Act 2012 updated references to water service licences and charges. The COVID-19 Response and Economic Recovery Omnibus Act 2020 made temporary adjustments to consultation periods (affecting ss.6, 26N, 26GZB, 26GZG).

The 2000 reforms were driven by recognition that the 1914 Act was outdated for contemporary pressures: over-allocation, environmental decline, climate variability and demand from mining and urban growth. The changes aimed to provide certainty for investors through tradeable entitlements while embedding ecological sustainability and community participation.

No major amending Act has passed since 2020, but ongoing reviews under s.27C and plan-review obligations (ss.26GW(3), 26GX(3), 26GY(3)) continue to shape policy.

The source text does not contain decided cases; however, the structure anticipates disputes at several points. SAT review is available for licence refusals, conditions, amendments, suspensions, cancellations, directions under ss.22, 26G and 26GC, and compensation refusals (ss.26GG–26GI). Clause 7(2) of Sch.1 requires the Minister to consider a non-exhaustive list of factors; failure to do so, or Wednesbury unreasonableness, would ground judicial review.

Controversies have historically centred on the tension between historic riparian expectations and the Crown’s plenary vesting in s.5A. Early challenges (pre-2000) often concerned whether intermittent flows or artificial improvements fell within the definition of “watercourse” (now clarified in s.3(2)). Post-2000 litigation has focused on the breadth of Ministerial discretion under Sch.1 cl.7, the validity of local by-laws that restrict riparian rights (s.20(1)(c)), and whether compensation under Sch.1 cl.39 is available when a plan reduces allocations permanently.

The requirement to notify security-interest holders (s.26GZO) and obtain their consent to transfers (Sch.1 cl.34) has generated commercial disputes where financiers hold registered interests. The interaction between s.5C licensing and Mining Act 1978 tenements remains contentious; the Act requires separate water licences even where mining leases authorise water interference.

Public controversy has surrounded the making of management plans that reallocate water from irrigators to the environment, with claims that the consultation requirements in ss.26GZA–26GZE are insufficient. The “no compensation” provision in s.26GZS for register-related acts has also been criticised by lenders.

Most practitioners miss that riparian rights under ss.9, 10, 20 and 21 are not absolute. Section 26GA limits them to pre-augmentation volumes or prescribed amounts, while s.26GC directions can displace them entirely during declared shortages without compensation unless Sch.1 cl.39 criteria are met. The “sensible diminution” test in ss.20(1)(c) and 21(1)(c) is stricter than many realise; local by-laws can remove the right altogether.

Another trap is the interaction between Sch.1 cl.13 and cl.14. A licence terminates automatically if the holder ceases to be an eligible owner or occupier (cl.3), yet cl.14 gives a 30-day grace period for transfer on sale of land. Failing to lodge the transfer application within that window can leave the new owner taking water unlawfully.

The register (Division 3E) creates priority issues. A security interest noted under s.26GZM does not itself validate the interest but puts third parties on notice. Failure to notify the holder of proposed cancellation (s.26GZO) can invalidate the Minister’s decision.

Meters are presumed correct (Sch.1 cl.47), shifting the onus to the licensee to prove malfunction. The two-year limitation for obstruction prosecutions (ss.17(5), 25(3)) is often overlooked, as is the continuing daily offence for failure to remove obstructions after notice (s.17(4)).

Finally, many assume that pre-1985 or pre-2001 works are grandfathered. Section 17A saves only the initial construction; subsequent alteration still requires permit. Similarly, s.7 deems certain old proclamations to continue, but they remain subject to later Ministerial directions.

Compliance begins with determining whether the water source is subject to the Act (s.5) and whether the proposed taking falls within a free right or requires a s.5C licence. For new works, apply under Sch.1 cl.4 with all required plans and fees; anticipate advertising and third-party submissions (cl.5). Engage early with the relevant water resources management committee (s.26N, s.26GZ).

When holding a licence, maintain strict adherence to every condition, including metering, monitoring and reporting. Any material change in circumstances must be notified immediately (Sch.1 cl.44). If selling land, ensure the transfer application is lodged within 30 days (Sch.1 cl.14). Security interests should be noted on the register and their holders kept informed of any proposed dealings.

For management-plan compliance, monitor the seven-year review cycle and participate in public consultation. Local by-laws may impose additional obligations; obtain and read the by-laws for the relevant locality before commencing works.

Organisations should implement internal water-management plans that align with regional and local area management plans, especially where Sch.1 cl.7(2)(g)(iii) requires licensing decisions to be consistent with those plans. Annual compliance audits should check meter accuracy, licence expiry, condition adherence and register notations.

Where Ministerial directions are received under ss.22, 26G or 26GC, comply strictly and consider SAT review within the statutory window. For compensation claims, document historic lawful use, quantify permanent loss and mitigate where possible before invoking Sch.1 cl.39.

In all cases, keep contemporaneous records. The Minister can recover remedial costs as a debt and may cancel licences for repeated breaches. Early engagement with the Department, preparation of robust applications addressing the cl.7(2) factors, and legal review of any proposed transfer or security arrangement are the practical keys to compliance.