Nature Conservation Council of NSW Inc v Minister Administering the Water Management Act 2000

[2005] HCATrans 668

[2005] HCATrans 668

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S81 of 2005

B e t w e e n -

NATURE CONSERVATION COUNCIL OF NEW SOUTH WALES INC

Applicant

and

MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 10.36 AM

Copyright in the High Court of Australia

MR T.F. ROBERTSON, SC:   May it please the Court, I appear for the applicant with MS J.M. JAGOT.  (instructed by Environmental Defender’s Office)

MR N.C. HUTLEY, SC:   If the Court pleases, I appear for the respondent with my learned friend, MR N. PERRAM.  (instructed by Crown Solicitor for New South Wales)

GUMMOW J:   Yes, Mr Robertson.

MR ROBERTSON:   Your Honours, the special leave point that is urged is a misapplication of the principles of Project Blue Sky which, we respectfully submit, appears in the application book at page 140 of the Chief Justice’s judgment.  After finding that the relevant statutory instrument, the Water Management Plan, was invalidly made in two important, indeed, fundamental respects, his Honour moves to the next step which is determine whether the breaches of the Act spell invalidity ‑ ‑ ‑

GUMMOW J:   It is paragraphs 93 and 94.

MR ROBERTSON:   ‑ ‑ ‑ correct – after finding the textual indicators within the Act.  There are additional indicators in addition to those that his Honour referred to which we say support invalidity.

GUMMOW J:   Taking that on board, what are you going to say about Mr Hutley’s points on page 159 as to the appropriateness ‑ ‑ ‑

MR ROBERTSON:   We agree that they are special leave points.  We agree at least two of them are special leave points.

GUMMOW J:   No, paragraphs a and c on page 159.

MR ROBERTSON:   Yes.  The proposed notice of contention point is clearly of public importance.  The contest between the parties was that in Mr Hutley’s case the management planning provisions only required notional water to be committed for the environmental health of the river systems in inland New South Wales.  On the other hand, we submitted that it required an actual commitment of water at all times.

The Court of Appeal agreed with us on that question.  That is a point which – and I do not think there would be any contest about this – is fundamental to understanding the role of the environmental water rules in the structure of the Act.  The management plan itself is the pivot around which the Act turns.  You cannot create licences which are now property rights and are transferable under the Act except in accordance with the management plan and you cannot permit extractions under those licences without an available water determination by the Minister which itself must be made in accordance with the management plan.

So the management plan has consequences throughout the statutory scheme.  If in fact no actual water need be committed for the environment and if the extractive regime, so to speak, the irrigation regime, can be determined or fixed without first establishing an environmental water rule, which is what the court found occurred in this case, then we say there is an inversion of the statutory priorities set out in section 5 in the water management principles and so there is a collapsing of the statutory purpose.

Point c on page 159 we answer by saying that, despite the change in terminology in the definition of the environmental water rule, in substance it requires some actual commitment of water, albeit not necessarily at all times ‑ ‑ ‑

GUMMOW J:   It is put against you that it could be now done again.

MR ROBERTSON:   Yes.  The answer to that is that there was no change at all to the mandatory contents of the Water Management Plan which involve the establishment of a bulk access regime, that being the irrigation regime, in accordance with or by reference to the environmental water rules.  Whilst ever the Act requires, as it still does today, the establishment of the regime for extraction of water, after the establishment of the environmental water rule the management plan is invalid.  So that second point, the second finding by the court, remains the case.  In the first case there was a change in the definition of environmental water rule but it still required some water to be identified. 

At page 136 your Honours will see the new definition of “Environmental water” in the 2004 amendments.  This is “planned environmental water” in section 8(1)(a):

water that is committed –

the word “committed” was critical in the reasoning of the Court of Appeal, meaning thereby actual water, not some sense of notional water –

by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose –

It is the establishment of a rule identifying that actual water which we say must necessarily precede the determination of the extraction regime.  By

dint of the priorities in section 5 of the Act, again there has been no change in the water management principles.  For those reasons, we respectfully submit that notwithstanding the alterations made in 2004 the points remain the same.  May it please the Court, those are our submissions.

GUMMOW J:   Thank you.  Yes, Mr Hutley.  There does seem to be a problem about Project Blue Sky.

MR HUTLEY:   Your Honour, as we accept in our argument, it is certainly ‑ ‑ ‑

GUMMOW J:   Yes, we see that in page 160.

MR HUTLEY:   Your Honour, as you see, we are instructed neither to support nor oppose.  We have brought forward some observations as to issues which would be of concern to the Court as to whether it was an appropriate matter to grant special leave.  The particular one, a, is merely that the case is one which will require a detailed consideration of a complex plan in a manner which is really of not particular general interest to the Court on the notice of contention.

The second matter is there will be a further issue as to whether the amending Act was retrospective or not.  If that is the case, one moves directly to the c point, that is, section 8, and you have been taken to it.  In our respectful submission, once one looks at section 8(2), which says in terms:

A management plan must contain provisions for the identification, establishment and maintenance of planned environmental water (environmental water rules).  The environmental water rules relating to a water source do no need to specify the minimum quantity –

et cetera, which seems to be really essentially the point upon which the Court of Appeal found against us on the construction point.  If that is the case, the issue of Project Blue Sky will not arise but also, in any event, even if it was determined adverse to us, at the end of the case, if our construction of section 8 is right, the whole thing could be done again and the case might be seen to be somewhat moot.  We merely bring those observations to the attention of the Court and we accept the point about Project Blue Sky.

GUMMOW J:   Yes, thank you, Mr Hutley.  Yes, Mr Robertson.

MR ROBERTSON:   Your Honours, there would still remain, notwithstanding all that my friend, a fundamental problem with the inversion of statutory priorities in fixing the extraction regime first and then

fixing an environmental water rule later, rather than the reverse.  If it please the Court.

GUMMOW J:   There will be a grant of special leave in this matter.  It, again, is a one day case, I think.

AT 10.46 AM THE MATTER WAS CONCLUDED