McLeod v Chief Executive, Department of Natural Resources and Water
[2007] QLC 16
•12 March 2007
LAND COURT OF QUEENSLAND
CITATION: McLeod v Chief Executive, Department of Natural Resources and Water [2007] QLC 0016 PARTIES: Ian McLeod
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: A2007/0007 DIVISION: Land Court of Queensland PROCEEDING: Appeal under Water Act 2000 for renewal of two water licences DELIVERED ON: 12 March 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane – by teleconference MEMBER Mr BR O'Connor, Judicial Registrar ORDER: (1) The Court has no jurisdiction to hear the appeal on the licence application as presently progressed.
(2) Assuming power to make a declaration, it is within the power of the Queensland Parliament to enact laws which govern the use, flow and control of all water in Queensland and to impose all applicable licence fees.
CATCHWORDS: Jurisdiction – Water Act 2000 – power to make declaration APPEARANCES: Mr I McLeod for appellant
Mr B Vanderwolf for the respondent
The issue for determination in this matter is whether the Land Court has jurisdiction to hear an appeal lodged by Mr McLeod regarding the renewal of two water licences.
The background to this appeal is conveniently outlined in the evidence at the telephone hearing given by Mr Bevan Vanderwolf, senior project officer for the respondent. Mr Vanderwolf states
Mr McLeod holds two licences. Their expiry date was on 31/10/2006. On 6 September 2006 expiry notices were sent to Mr McLeod stating that the annual renewal fee on these were $54.30 per year. On the 27 September 2006 the department received application for renewal of those licences from Mr McLeod. On 11 October 2006 the department sent a letter back to Mr McLeod stating that the applications were not accompanied by the prescribed fee and that the renewal applications could not be dealt with unless they were accompanied by the fee. There was then some correspondence received by the department from Mr McLeod. Mr McLeod subsequently paid the required annual licence fee and the process of dealing with the renewal of those licences is still under way. On 13 December 2006 the department received an application for internal review of the decision imposed on the fee. On the same date a letter was sent back to Mr McLeod indicating there was no case for an application for internal review because the decision had not been made by the Chief Executive at that stage. The next correspondence received by the department was an appeal that had been lodged with the Land Court.
The question of licence reinstatement has not been decided on by the respondent either at first instance (original decision) or in subsequent internal review. The respondent's attitude to Mr McLeod's present appeal is that the Court has no jurisdiction to hear the matter. They state that it is only after the respondent has made a review decision of the original decision that the Land Court is vested with jurisdiction in a matter of this nature, and then only as to whether the licence should be granted and if so, under what conditions.
Mr McLeod's basis for appealing to the Land Court appears essentially to relate to the issue of the validity of the fee imposition and also to wider questions of the power of the State to control the use of water by private landholders. He also argues there is nothing in his Certificate of Title to the subject land granting him title from the Crown whereby his rights to use water are reserved to the Crown. He further refers to s.100 of the Commonwealth Constitution as to constraints on the authority of Government to deal with wider water issues.
Statutory appeal rights
The Water Act 2000 (the Act) provides for the renewing of water licences and an appeal system where necessary. The key provisions are:
· Section 220(7) - within 30 business days after the application for renewal, the chief executive must, if the application is refused or approved with variation, give the applicant an "information notice".
· Chapter 6 of the Act deals with Reviews, Appeals and Arbitration.
· Within Chapter 6, s.851(1) provides - a person who has been given an "information notice" is an interested person.
· Section 851(6) provides - the decision for which a notice has been given under ss.(1) is an original decision.
· Section 861 provides - every review against an original decision must at first instance be by way of internal review.
· Section 877 provides - an interested person who has applied for review of an original decision may subsequently appeal to the Land Court after their review decision.
As no original decision has been made by the chief executive at this stage on the initial application for licence renewal (and no "information notice" issued to Mr McLeod), it seems clear that the appellant is not in a position to lodge an appeal to the Land Court. The Court thus has no jurisdiction to hear the "appeal" so lodged.
Declaration
Mr McLeod also raised the question of there is some more general power of the Land Court to provide a ruling on the issues raised by him. Section 33 of the Land Court Act gives the Court a limited power to make declarations on certain matters. It states:
"33.(1) Any person may bring proceedings in the Land Court for a declaration about -
(a) a matter done, to be done, or that should have been done under this Act or another Act giving jurisdiction to the court; and
(b)the construction of any legislation for the purpose of proceedings in which the court has exclusive jurisdiction."
While the Act confers jurisdiction on the Land Court for certain purposes, this jurisdiction does not extend to deciding on the power to levy licence fees or wider powers of the State to control use. The imposition of fees is covered in the Act and relevant amounts prescribed by regulation. Section 19 of the Act vests all rights to the use, flow and control of all water in Queensland in the State. Section 20 authorises the taking of water without entitlement in limited situations which did not appear to be relevant in current circumstances.
Even if Mr McLeod's "appeal" could be in some way construed as an application for a declaration and what was sought came within the scope of s.33, there is still an insurmountable problem for the appellant.
The challenge by the appellant is to the power of the State Parliament (via the Water Act) to control access to and usage of water and licence fees relating to such. This challenge is to the very scope of the power of State Parliaments to legislate, particularly in relation to perceived property (water) rights.
This fundamental issue was considered relatively recently by the High Court in the decision of Durham Holdings v The State of New South Wales (2001) 2005 CLR 399. The background facts to that case were that, by special legislation in 1981, the New South Wales government vested all coal in its natural state in the Crown. Durham previously owned very extensive deposits of coal valued at some $93,000,000. The legislation imposed a cap on compensation to specified parties, effectively limiting Durham's claim to $27,000,000. One of the issues raised by Durham related to the power of State Parliament to enact such legislation, taking away existing property rights. Durham argued the Act was outside the powers of the State Parliament and therefore were unconstitutional; that the right to just compensation was such a fundamental right deeply rooted in common law that Parliament could not enact the Act in question.
The High Court decided that it was within the powers of the State Parliaments to make such laws. The powers to make laws for the peace, welfare and good government of the State were to provide as wide as possible an operation. The Act was not inconsistent with the express terms of the constitution or any applicable Federal law (s.109 of the Constitution). It was not invalid as incompatible with the State constitution.
The Court decided that decisions about the appropriateness or otherwise of the law (and the compensation provided) were matters for the elected Parliament and the Government of the State. The complaints of discrimination and injustice were thus complaints of a political and not a legal character. They should be addressed to Members of Parliament and ultimately to the electors. The political process should ultimately produce just laws on significant topics.
The reasoning in the Durham decision provides sufficient judicial authority for the Queensland Parliament to enact the provisions of the Water Act challenged by Mr McLeod. The exceptions mentioned by the High Court on State powers to legislate do not apply to the challenged provisions of the Water Act.
Reference was also made by Mr McLeod to s.100 of the Commonwealth Constitution. This states:
"The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the rights of a State or of the residents therein to the reasonable use of the waters or rivers for conservation or irrigation."
This provision limits the power of the Commonwealth to legislate in relation to certain water issues; however it does not restrict the rights of the State Parliament to legislate.
My conclusion then is that, even if a given declaration is within the power of the Land Court in the present case, the declaration would be that it is within the power of the Queensland Parliament to regulate the use, flow and control of all water within Queensland and to impose applicable licence fees.
Order
(1)The Court has no jurisdiction to hear the appeal on the licence application as presently progressed.
(2)Assuming power to make a declaration, it is within the power of the Queensland Parliament to enact laws which govern the use, flow and control of all water in Queensland and to impose applicable licence fees.
BR O'CONNOR
JUDICIAL REGISTRAR
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