The Act casts a wide net. Every occupier of land in the Territory is potentially affected by the Crown’s rights under s 9(2) and the residual common-law rights preserved by s 17. Landowners and occupiers immediately adjacent to waterways or overlying aquifers enjoy the basic taking rights in ss 10, 11 and 14, but those rights are curtailed in Restricted Water Extraction Areas (ss 14A–14E) and cannot be multiplied by subdivision without nominating which new titles retain the right (s 14C).

Any person proposing to interfere with a waterway (s 40), take more than domestic or stock quantities of surface water (s 44) or groundwater (s 59), drill or alter a bore (ss 48 and 56), dispose of waste underground (s 62), recharge an aquifer (s 66), or discharge waste into water (s 73) requires authorisation and is subject to the offence provisions. This captures irrigators, pastoralists, horticulturalists, aquaculture operators, industrial users, miners and petroleum companies.

Mining and petroleum operators receive specific transitional treatment. Part 6C phases out the previous exemption for mining and petroleum activities that existed before 1 July 2019, requiring them to obtain water extraction licences within two years of the 2023 amendments (ss 71Q and 71R). Licences for hydraulic fracturing are subject to additional consent or modelling hurdles (s 60A). Waste discharge from mining is largely carved out of s 16 where an environmental (mining) licence exists under the Environment Protection Act 2019 (s 7(1)).

Developers undertaking large-scale subdivisions that will generate multiple water users fall under Part 6B. They may obtain a head licence on condition that entitlements are later transferred only to participants in the approved development (ss 71F–71H). Aboriginal land holders, native-title holders and certain corporations or trusts holding land granted for Aboriginal benefit are “eligible Aboriginal people” entitled to an Aboriginal water reserve in water allocation plans (ss 4B, 22B(7) and 22C). Any applicant seeking to take water from such a reserve must either be an eligible Aboriginal person or have their agreement (s 71BA).

Public authorities, including local government councils, may exercise functions only in accordance with the Act or a ministerial direction (s 8). Authorised officers, the Controller, the Minister and NTCAT members all exercise statutory powers and are protected from liability when acting in good faith (s 33).

Finally, any person whose land is affected by water-resource investigations (Part 4), development works (Part 8), or emergency restrictions (s 96) may claim compensation or face directions. Executive officers of corporate licensees face personal criminal liability (ss 102B and 102C), while joint holders of approvals are each liable for contraventions by any one of them (s 102D).

Rights:

• Crown rights to use, flow and control of all water (s 9(2)).
• Public right to take water for domestic and stock purposes from waterways (s 10), subject to s 99.
• Adjacent owners’ rights to take limited quantities for domestic, stock and garden use (ss 11 and 14), subject to Restricted Water Extraction Area declarations (s 14A).
• Right to drain land or construct conservation works provided flow is not materially altered (s 15).
• Right to apply for permits and licences (ss 36, 41, 45, 49, 57, 60, 63, 67, 74, 71F).
• Right to transfer water entitlements within the same water resource (s 71AA).
• Right to apply for NTCAT review of listed decisions (s 105D and Schedule 2).
• Right to just compensation for acquisition of property (s 107) and for damage caused by investigation works (s 87(1)).

Duties:

• Duty not to pollute (s 16) or allow hydraulic fracturing waste to contact water (s 17A).
• Duty to hold and comply with all required permits and licences (ss 40, 44, 48, 56, 59, 62, 66).
• Duty to comply with licence conditions, remediation notices (s 33C), action notices (s 88B), directions under s 70, and emergency notices (s 96(3)).
• Duty of occupiers to prevent offences on their land (s 102) and of owners to prove they are not occupiers if prosecuted (s 102A).
• Executive officers’ duty to take reasonable steps to prevent corporate contraventions (ss 102B and 102C).
• Duty to provide information, samples and records when required (ss 53, 55, 88, 88D).
• Duty to decommission bores that lose s 14 rights after subdivision in a Restricted Water Extraction Area (s 14D).
• Duty to nominate titles that retain or lose restricted water rights on subdivision documents (s 14C).
• Duty to pay fees and charges; unpaid amounts trigger suspension and cost-recovery powers (ss 84 and 84A).

The Controller must consider a statutory checklist before granting or amending authorisations (s 90(1)), including sustainable yield, existing demand, environmental values, interstate agreements, and any water allocation plan. The Minister must ensure continuous water-resource assessment (s 34) and may declare beneficial uses and water quality standards (s 73).

Penalties are graduated. Environmental offences under ss 16, 17A and 62 are classified into four levels. Level 1 (intentional conduct causing serious environmental harm with knowledge) carries the highest penalty; level 4 (simple causation) the lowest. Maximum default penalties of 4 penalty units (individuals) or 20 (corporates) apply to continuing contraventions (s 104). Continuing offences after conviction attract further daily penalties up to one-tenth of the maximum (s 104A).

Specific maximum penalties include:

• Interfering with a waterway or taking water without authorisation: 500 penalty units or, where intent and recklessness are proved, 1 000 penalty units or 2 years imprisonment (ss 40(3), 44(2), 59(2)).
• Unauthorised bore work or breach of drilling licence: 500 penalty units (ss 48, 50, 56, 58).
• Breach of waste-discharge licence: environmental offence level 3 (s 76).
• Misleading information to officials: 200 penalty units or 2 years imprisonment (s 89).
• Obstruction of authorised officers: 200 penalty units or 2 years imprisonment (s 101).
• Destruction of works or interference with rights: 100 penalty units (ss 98, 99).
• Wasting water: 50 penalty units (s 100).

Enforcement tools are extensive. Authorised officers may enter land (s 27), issue remediation notices (s 33A), seize things (s 32), and commence proceedings with Controller approval for listed offences (s 105(1A)). The Minister may take remedial action and recover costs as a debt (ss 33D, 88C). Emergency powers allow immediate restriction or prohibition (ss 96 and 97). Courts may order rectification, cessation of harm, or payment of financial benefits gained (s 105B) and must consider sentencing matters listed in s 105C (impact on other rights, market value of lost water, foreseeability, control, etc.).

Evidentiary aids include presumptions arising from the presence of drains, ponds or pumping equipment (ss 16(3), 17C, 44(6), 59(6), 66(6)). Strict liability applies to many base offences; absolute liability to some executive-officer provisions (s 102C(2)). Defences of reasonable steps and due diligence are available but the defendant bears the legal burden (e.g. ss 33C(4), 37(4), 102(4)).

The Act is deliberately interwoven with cognate Northern Territory and Commonwealth legislation. Section 7 excludes authorised mining activity under an environmental (mining) licence and confined petroleum-site pollution from s 16. Part 6C and s 71S give water extraction licences primacy over mining management plans and environment management plans where extraction volumes conflict. Access to confidential drilling data from mineral titles, environmental (mining) licences and petroleum titles is preserved notwithstanding confidentiality provisions in those Acts (s 39).

Planning controls intersect at several points. Subdivision in a Restricted Water Extraction Area must nominate titles retaining water rights and lodge memoranda under s 35 of the Land Title Act 2000 (s 14C(4)). Development permits under the Planning Act 1999 are prerequisites for certain subdivision-related licence applications (ss 45(6)(e), 60(6)(e)). Water allocation plans must consider planning schemes (s 90(1)(j)).

The Waste Management and Pollution Control Act 1998 operates in parallel; actions under an environment protection approval or licence do not constitute an offence under s 73 (s 74A). The Soil Conservation and Land Utilisation Act 1969 and Pastoral Land Act 1992 qualify rights of access to banks (s 13) and drainage rights (s 15).

Commonwealth statutes are referenced for native-title and Aboriginal land rights purposes. Eligible land for Aboriginal water reserves includes Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and land where exclusive native title has been determined (s 4B). Coastal waters are aligned with the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) (s 5(6)).

The Northern Territory (Self-Government) Act 1978 (Cth) s 50 guarantees just terms for any acquisition of property effected by the Act (s 107). The Criminal Code (NT) Part IIAA applies to most offences except those listed in s 8A. NTCAT review procedure is governed by the Northern Territory Civil and Administrative Tribunal Act 2014.

The Act has been amended almost annually since 2018 to address specific policy gaps. The Water Legislation Amendment Act 2018 introduced the four-tier environmental-offence structure, remediation notices, authorised-officer powers, and the statutory checklist in s 90. It also inserted Part 6A to require public notification and comment before water extraction licence decisions, responding to concerns about opaque allocation processes.

The Water Amendment Act 2019 and Water Legislation Miscellaneous Amendments Act 2019 added strict liability offences for hydraulic fracturing waste (s 17A), the s 60A consent or modelling requirement for fracking licences, and the Aboriginal water reserve provisions (ss 22B(7), 22C and 71BA). These changes reflected community and Indigenous pressure to protect groundwater from fracking contamination and to deliver economic benefits to Aboriginal landowners.

The Water Further Amendment Act 2019 and Environment Protection Legislation Amendment Act 2023 refined transitional arrangements for mining and petroleum activities that previously operated under exemptions. Part 6C now requires former exempt operators to obtain licences within two years, with the water extraction licence prevailing over mining or petroleum plans (s 71S). The Parks and Water Legislation Amendment Act 2024 transferred certain ministerial powers from the Controller, expanded authorised-officer provisions, and aligned review rights with NTCAT (Part 20 transitional provisions).

The Petroleum, Planning and Water Legislation Amendment Act 2025 inserted Part 6AA to permit trading of water entitlements within the same resource and amended Schedule 2 to remove review rights for certain pre-commencement decisions. These changes were driven by the need to create water markets, improve allocative efficiency, give certainty to investors, and integrate water decisions with contemporary planning and petroleum regulation. Each round of amendments has increased regulatory granularity while preserving existing rights through extensive transitional savings (Parts 12–21).

Although the Act contains no reported superior-court challenges to its core validity, several provisions have generated controversy in practice. The introduction of Restricted Water Extraction Areas (inserted 2023) has been criticised by rural subdividers who argue that freezing the number of entitled parcels interferes with ordinary land-development rights. The requirement to nominate titles that retain or lose the s 14 right at the planning-application stage (s 14C) has led to disputes before the Northern Territory Civil and Administrative Tribunal about whether a particular subdivision increases overall take.

Hydraulic-fracturing provisions (ss 17A–17C and 60A) remain contentious. Industry has questioned the evidentiary presumptions in s 17C and the practical difficulty of obtaining consents from every owner of a designated bore within 1 km. Conversely, environmental groups argue that the “produced water or flowback fluid” exemption in s 17B(1) creates a loophole if the target formation already contains saline water.

The phasing-out of mining and petroleum exemptions via Part 6C has produced tension between the resources sector and the water regulator. Questions have arisen about the precise meaning of “routinely took” water before 1 July 2019 (s 71R(1)(b)) and whether a water extraction licence can lawfully reduce volumes below those historically used. Section 71S’s primacy rule has yet to be tested in a contested hearing.

Administrative decisions under s 90 have been challenged on the basis that the Controller failed to give adequate weight to an existing water allocation plan or to interstate sharing agreements. NTCAT’s jurisdiction under the new s 105D (inserted 2024) is still being explored; early decisions have emphasised that the statutory checklist in s 90 is mandatory and that reasons must demonstrate how each relevant factor was weighed.

Controversy also surrounds the breadth of executive-officer liability (ss 102B and 102C). Corporate defendants have argued that the legal burden placed on the officer to prove reasonable steps is overly onerous, particularly where the officer sits on a large board with limited operational involvement.

Most practitioners miss three critical features. First, the interaction between Restricted Water Extraction Area declarations and land-title registration (s 14C(4)) can create unregistered restrictions that bind subsequent purchasers even though the memorandum is lodged under the Land Title Act 2000. A title search alone is insufficient; the Gazette notice declaring the area must be examined.

Second, the Aboriginal water reserve operates as a mandatory allocation within every water allocation plan that covers eligible land (s 22B(7)). An applicant who is not an eligible Aboriginal person must obtain the “agreement” of the eligible Aboriginal people before the Controller can grant a licence from that reserve (s 71BA). The Act does not prescribe how that agreement is evidenced or whether it can be conditional, creating due-diligence risk for non-Aboriginal applicants.

Third, the transitional provisions in Part 6C do not preserve the volume of water historically taken; they merely preserve the ability to apply for a licence. Once granted, the licence is subject to the full s 90 checklist and may be issued for a lesser volume. Applicants relying on historical use therefore risk a material reduction in entitlement. Similarly, the “prevail” rule in s 71S operates only where an inconsistency exists; a mining management plan that is silent on volume does not create an inconsistency, leaving the water regulator free to impose tighter limits.

Another trap is the continuing-offence regime. Because an omission to decommission a bore (s 14D) or to comply with a remediation notice (s 33C) continues every day, the maximum default penalty can quickly exceed the head penalty. Courts have indicated they will treat each day as a separate offence for sentencing purposes once a complaint has issued (s 104).

Finally, the evidentiary presumptions (ss 16(3), 17C, 44(6), 59(6)) reverse the onus in a practical sense. Proof of the existence of a drain, pond or pumping equipment on land where hydraulic fracturing has occurred is prima facie evidence that waste contacted water. Defence practitioners must lead positive evidence of non-contact or of an applicable exemption (s 17B) at an early stage.

Compliance begins with a spatial and regulatory due-diligence checklist. Determine whether the land lies in a water control district, a Restricted Water Extraction Area, or an area covered by a water allocation plan. Search the Controller’s public register (s 95) and the Gazette for declarations under ss 5, 14A, 22, 22A and 22B. Identify all bores, waterways and existing licences on or adjacent to the land.

If a new authorisation is required, map the proposal against the s 90(1) factors and the relevant water allocation plan before lodging. For water extraction licence applications, prepare the detailed public-notice package required by s 71B, budget for publication costs, and allow at least 40 business days for the comment period plus 20 business days for the Controller’s decision. Where an Aboriginal water reserve is involved, obtain written agreement from the eligible Aboriginal people before submission.

For hydraulic-fracturing proposals, commission independent hydrogeological modelling addressing every designated bore within 1 km and secure consents or demonstrate no adverse effect (s 60A). Ensure all waste streams are characterised against the s 4A definition and that no hydraulic fracturing waste can migrate to waterways or groundwater.

Implement an environmental-management system that includes real-time metering, daily records, and annual reporting. Train staff on the strict-liability nature of most base offences and the personal exposure of executive officers. Schedule regular compliance audits against each licence condition, remediation notice, and direction. If a breach occurs, self-report promptly; courts treat early cooperation and remediation as powerful mitigating factors under s 105C.

Maintain a central register of all permits, licences, consents, directions and notices. Diary renewal dates (s 93A) and surrender formalities (s 94). When transferring land or entitlements, ensure the transferee is notified that licences run with the land (s 92) or that trading approval has been obtained (s 71AA). For developers under Part 6B, embed water-entitlement transfer conditions in every sale contract and obtain Controller approval before any transfer.

Finally, keep abreast of Gazette notices declaring new Restricted Water Extraction Areas, amending beneficial uses, or varying water allocation plans. A single missed notice can convert a previously compliant activity into a strict-liability offence overnight. Annual legal refresher training and subscription to the Controller’s register updates are prudent for any entity whose operations involve significant water take or potential pollution risk.