Chapter Five: Application of equitable utilization and minimisation principles at the federal level
5.2 Transboundary water disputes at the federal level
The issue of water allocation among different states, provinces, and regions inside a federal state has a long history. In the US, the case of Kansas v. Colorado over the Arkansas River in 1902 can be considered one of the earliest disputes related to water allocation inside a federal system. The two states brought the case to the US Supreme Court for judgment because Kansas claimed that Colorado had overused the river and reduced the river's water flow.610 The Court used the term “equitable relief” in 1902 in reference to the case.611 Significantly, the Supreme Court referred to the principle of equitable utilisation and minimisation of environmental harm in its decision in 1907.
According to the court, the reduction of water flow caused harm to the state of Kansas.
The court also stated that:612
… when we compare the amount of this detriment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two States forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation.
Hence, the Court refers to “the equality of right and equity between the states” as the foundation for solving the transboundary issues between states. This judgment can be considered the earliest attempt by the judiciary toward forming and shaping the two principles of environmental law at the domestic level. The Court illustrates the significance of the principle of equitable and reasonable water use, even among various states inside one jurisdiction. As quoted above, it is not appropriate and not fair for upstream states to exploit the river without consideration of downstream states.
Therefore, the application of the two principles has a long history inside federal states.
Notably, the two principles' characteristics and criteria are also developed at the federal or national level, then transferred to international law. In particular, the characteristics for determining equitable utilisation or “equitable apportionment” is illustrated in another US case.
Nebraska v. Wyoming 1945 is a significant case that provides clarification to support the above argument. In determining water allocation between the two states, the US
610 See Kansas v. Colorado [1902] US 185 [125].
611 At [185].
612 Kansas v. Colorado [1907] US 206 46 at [114].
Supreme Court expanded the principle of equitable use by taking into account the following characteristics. The judgment stated:613
… physical and climatic conditions; the consumptive use of water in the several sections of the river; the character and rate of return flows; the extent of established uses; the availability of storage water; the practical effect of wasteful uses on downstream areas; the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former
Even though the exact terms of “equitable utilisation” and “minimisation of environmental harm” were not used in the two above cases, similar terms were used to guide states in managing shared water resources. Defining equitable utilisation by determining these above characteristics was significant at the national level, but the influence of the judgment extended to the international level. Two decades later, the Helsinki Rules in 1966 took inspiration from the judgment and adapted similar characteristics for determining the principle.614 The UN Watercourses Convention also took a similar path to determine the principle in 1997.615 As a result, this judgment is considered an “embryonic articulation” to advance the principle to solve transboundary matters in national and international law.616
Despite that, the equitable utilisation principle at the international level, found in the UN Watercourses Convention is more comprehensive and advanced compared to the above judgment. The significance of population, future consumption and social aspects of water are significant characteristics for determining the principle at the international level, but were dismissed in the US experience at a national level.617 This reflects the development of IEL, especially in the last three decades. Thus, the principles and their characteristics are advanced, but the influence of the US legal system for that development is undeniable.
However, the Australian case study is different from the US experience because
613 Nebraska v. Wyoming [1945] US 325 589 at [618].
614 See Rhett B Larson “Inter-state water law in the United States of America: what lessons for international water law?” (2017) 2(3) Brill Research Perspectives in International Water Law.
615 Rhett Larson and A Dan Tarlock “Inter-jurisdictional water allocation in federal systems: lessons for
international water law” in Research Handbook on International Water Law (Edward Elgar Publishing, 2019) at 59-63.
616 Larson, above n 614, at 9.
617 At 10.
Australia's transboundary water issues are resolved mainly through inter-state agreements rather than through litigation and court disputes.618 This does not mean that states cannot sue each other in front of the High Court of Australia. Many Australian scholars have addressed the possibility of inter-state litigation for transboundary issues among Australian local governments. Ian Renard is one of the early scholars that predicted litigation between Australian federal states in front of the High Court, similar to the US, Switzerland, and Germany experiences. He thought that the Dartmouth and Chowilla Dams between New South Wales and Victoria could lead to an inter-state water dispute in 1970.619 Enid Campbell, another Australian scholar, predicted inter- state water disputes between states and territories in Australia a year after him. She believed that these states and territories might enter into litigation like sovereign states.620 Sandford Clark also addressed the issue in his PhD thesis around the same period.621
Among the above scholars, Renard profoundly worked on the issue and addressed the equitable utilisation and minimisation of environmental harm principles at the federal level, but under a different name and scope. Renard rejected the possibility of applying
“equitable apportionment” and the US experience in Australia.622 He suggested another doctrine, and believed that “the doctrine of reasonable sharing”, if recognized by the High Court, would play its part in turning inter-state river disputes to a rational agreement.623 Based on the equality of states, Renard claimed that the Commonwealth and state legislation were not solving transboundary water issues. Thus, common law could fill the gap and solve the problem based on his “doctrine of reasonable sharing.”624
However, this doctrine is criticized because Renard rejects the US experience, though he depends on the same foundation for his doctrine: equality between states. Also, as mentioned above, Australia is a different case study from the US because there is only
618 See Adam Webster “Sharing Water from Transboundary Rivers in Australia—An Interstate Common Law?’(2015)” (2017) 39 Melbourne University Law Review.
619 Ian Renard “Australian Inter-State Common Law” (1970) 4(1) Federal Law Review at 96.
620 See Enid Campbell “Suits Between the Governments of a Federation’(1971)” 6 Sydney Law Review.
621 Sandford Delbridge Clark “Australian water law: an historical and analytical background” (1971)
622 See Ian A Renard “The River Murray Question: Part II-New Doctrines for Old Problems” (1971) 8 Melb. UL Rev..
623 At 684.
624 At 645.
one common law in Australia, while there are various common law traditions in the US. For example, the doctrine of “first in time, first in right” was applicable in Colorado, but “common law riparian rights principles” that concentrates on preserving the natural flow was applicable in Kansas.625 Brewer J explained that in Kansas v.
Colorado case. He stated that:626
... Each state may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control.
This confirms that transboundary water regulation is different between Australia and the US. According to the High Court, if the common law will be developed in Australia, this development should be consistent with the Commonwealth constitution.627 Lastly, according to Renard, if there will be transboundary litigation in the High Court of Australia, the Court faces two main challenges. Firstly, the Court should accept that there is a gap in the Australian legal system. Secondly, the Court should evolve a body of legal rules a part of common law to solve the issue.628 Even if the principle of equality between Australian states is assumed to be driven from the Constitution, it will be hard to implement it as a mechanism for solving transboundary water issues between Australian states.629 Section 100 of the Constitution is the only provision that mentions water resource management in Australia, but the section mostly limits the Commonwealth government's power in the related area. Therefore, section 100 will be addressed in the following part of this chapter, but the thesis does not enter into a general constitutional discussion. The following section illustrates Australian water policy in general and the MDB in particular. It explains how the Australian government took responsibility and changed its position from a mediator or coordinator to the main supervisor and implementer of water policy in the continent.
625 Webster, above n 618, at 271.
626 Kansas v. Colorado, above n 612, at [94].
627 Webster, above n 618, at 280-281.
628 Renard, above n 619.
629 Webster, above n 618, at 282.