Part 4Determination of portions of ownership of water shares

Part 4—Determination of portions of ownership of water shares 17 Determination of portions generally (1) For the purposes of Part 2, the ownership of the persons' water share is deemed to be the same as the ownership of the land that comprised the holding unless— (a) parcels of land in the holding are owned by different persons or in a different manner; or (b) different mortgages apply to different parcels of land in the holding; or (c) in the opinion of the Minister, ownership of the whole or a part of the water share cannot be clearly established. (2) Subject to Part 2, where subclause (1)(a) or (b) applies, the ownership of the water share is to be determined as agreed between all entitled persons. (3) If— (a) an agreement has not been reached under subclause (2); and (b) 18 calendar months have expired since the appointed day for the water system and an application for arbitration under clause 19 has not been made— ownership of the water share is to be determined as follows— (c) the owner of each parcel of land that comprised the holding— (i) is deemed, in respect of the ownership of that parcel, to hold the water share as a tenant in common, in equal undivided portions with the owner of each other parcel of the land that comprised the holding; and (ii) if there is more than one owner for a portion of the water share those persons own that portion in the same manner as that in which, they hold the parcel of land that entitles them to ownership of that portion of the share. (4) Where subclause (1)(c) applies ownership of the water share is to be determined— (a) as agreed between all entitled parties; or (b) if agreement cannot be reached under paragraph (a), in accordance with the conversion rules. (5) For the purposes of this section, ***mortgage*** in relation to land under the **Transfer of Land Act 1958**, means a recorded mortgage under that Act. 18 Determination of portions on conversion of take and use licences (1) If a take and use licence to which clause 13 applies is held by more than one person, the holders of the licence are deemed to own the water share as tenants in common in equal undivided portions (unless subclause (2) applies). (2) If a take and use licence to which clause 13 applies is held by an unincorporated association, the ownership of the share is to be determined as agreed between all persons who are members of the association. 19 Arbitration Sch. 15 cl. 19(1) amended by No. 50/2011 s. 46(Sch. item 15.1). (1) If, within— (a) a period of 6 calendar months from the appointed day for a water system; or (b) where the conversion rules so provide, any later date determined in accordance with the rules— the entitled persons have not reached agreement under clause 17 on the proportions of ownership, any of the entitled persons may refer the matter to arbitration in accordance with the **Commercial Arbitration Act 2011**. Sch. 15 cl. 19(2) amended by No. 50/2011 s. 46(Sch. item 15.2). (a) within a period of 6 calendar months from the appointed day for a water system; or (b) where the conversion rules so provide, any later date determined in accordance with the rules— the members of an unincorporated association have not reached agreement under clause 18(2), any member of the association may refer the matter to arbitration in accordance with the **Commercial Arbitration Act 2011**. Sch. 15 cl. 19(3) amended by No. 50/2011 s. 46(Sch. item 15.3). (3) An arbitration under this section must be conducted before a sole arbitrator selected by agreement by all the entitled persons, or, in the absence of such an agreement, by the Secretary-General of the Australian Centre for International Commercial Arbitration Limited ACN 006 404 664. (4) The costs of the arbitration are to be borne by all the entitled persons equally, unless otherwise awarded by the arbitrator. 20 Procedure and findings of arbitration (1) The arbitrator must make an award in the matter within 9 calendar months of his or her appointment, unless— (a) the arbitrator believes there are exceptional circumstances which require a longer period; or (b) all the entitled persons agree to a longer period. (2) The arbitrator may determine the procedures that apply to the arbitration, having regard to the commercial value of the subject matter of the dispute. 21 Matters to be taken into account in making finding In making an award the arbitrator must— (a) in the case of a dispute under clause 17(3), relating to an amalgamated holding that comprises several parcels of land, have regard to the volume of prior water rights and prior domestic and stock rights of each parcel of land in the holding, before the parcels became part of the holding, and, if the arbitrator considers that the consideration set out above would lead to an unfair or unjust result, have regard to— (i) any relevant agreements; and (ii) any transfers under section 226 (as in force before the appointed day), entered into after the parcels of land were amalgamated; and (iii) any other relevant matters; (b) in any other case, have regard to— (i) any relevant agreements; and (ii) any transfers under section 226 (as in force before the appointed day); and (iii) any other relevant matters.