77Payments to water access entitlement holders

77  Payments to water access entitlement holders Qualification for payment under this section  (1) A person (the entitlement holder) qualifies for a payment under this section if:  (a) the entitlement holder holds a water access entitlement in relation to a water resource plan area; and  (b) one of the following subparagraphs is satisfied:  (i) the water access entitlement was granted, issued or authorised before 25 January 2007;  (ii) the water access entitlement is granted, issued or authorised in accordance with a transitional water resource plan;  (iii) the water access entitlement is granted, issued or authorised on or after 25 January 2007, and before the Basin Plan first takes effect, and the Minister determines in writing that the entitlement relates to a water resource that was not overallocated at the time of, or because of, the grant, issue or authorisation;  (iv) the water access entitlement is granted, issued or authorised after the Basin Plan first takes effect and is granted, issued or authorised in accordance with the Basin Plan and the water resource plan for the water resources of the water resource plan area, or for the particular part of the water resources of the area; and  (c) there is:  (i) a reduction in the water allocations to be made in relation to the water access entitlement; or  (ii) a change in the reliability of those water allocations; and  (d) the reduction in the water allocations, or the change in the reliability of the water allocations, occurs because of a reduction (the diversion limit reduction) in the long‑term average sustainable diversion limit for the water resources of the water resource plan area, or for the particular part of those water resources; and  (e) the whole, or a part, of the reduction in the water allocations, or the change in the reliability of the water allocations, is reasonably attributable to the Commonwealth’s share of the reduction. A determination under subparagraph (b)(iii) is not a legislative instrument.  (2) In applying paragraph (1)(e), regard is to be had to:  (a) any steps taken by the Commonwealth to ensure that holders of water access entitlements do not suffer a reduction in their water allocations, or a change in the reliability of their water allocations, as a result of the diversion limit reduction; and  (b) the effect of those steps on the water allocations, or the reliability of the water allocations, made to the holders of water access entitlements; and Minister to decide claim  (3) If the entitlement holder makes a claim for a payment under this section in relation to the diversion limit reduction, the Minister must:  (a) if the Minister is satisfied that the entitlement holder qualifies for a payment under this section in relation to the reduction:  (i) determine that a payment under this section is to be made to the entitlement holder in relation to the reduction; and  (ii) determine the amount of the payment under this section to be made to the entitlement holder; and  (b) if the Minister is not satisfied that the entitlement holder qualifies for a payment under this section in relation to the reduction—determine that a payment under this section is not to be made to the entitlement holder in relation to the reduction. Amount of payment under this section  (4) Subject to subsection (6), the amount of the payment under this section is worked out as follows:  (a) first work out the amount of the reduction in the market value of the entitlement holder’s water access entitlement that occurred because of the reduction in, or the change in the reliability of, the entitlement holder’s water allocations;  (b) then work out how much of that reduction in market value is reasonably attributable to the Commonwealth’s share of the diversion limit reduction.  (5) In applying paragraph (4)(b), regard is to be had to:  (a) any steps taken by the Commonwealth to ensure that holders of water access entitlements do not suffer a reduction in, or a change in the reliability of, their water allocations as a result of the diversion limit reduction; and  (b) the effect of those steps on the water allocations made to the holders of water access entitlements; and  (6) The amount of the payment under this section must not exceed the amount worked out as follows:  (a) first work out the percentage of the diversion limit reduction represented by the Commonwealth share of the reduction;  (b) then apply that percentage to the amount worked out under paragraph (4)(a). Administrative Review Tribunal review  (7) An application may be made to the Administrative Review Tribunal for the review of:  (a) a determination of the Minister under paragraph (3)(b); or  (b) a determination of the Minister under subparagraph (3)(a)(ii). Substitute entitlements  (a) a water access entitlement (the substitute entitlement) is granted, issued or authorised; and  (b) the substitute entitlement is granted, issued or authorised in substitution for an equivalent water access right (the earlier right) that was previously granted, issued or authorised at a particular time; the substitute entitlement is taken, for the purposes of applying paragraph (1)(b), to have been granted, issued or authorised at the time when the earlier right was granted, issued or authorised. Note: This means, for example, that if the earlier right was granted, issued or authorised before 25 January 2007, the substitute entitlement is also taken to have been granted, issued or authorised before 25 January 2007.  (9) For the purposes of subsection (8), the substitute entitlement is not equivalent to the earlier right if the amount of water that can be taken under the substitute entitlement is more than the amount of water that could be taken under the earlier right.