Law and the practices of ‘damming’: Tasmanian Dams Case as a turning point

Synopsis

By contrast to many analyses of Commonwealth v Tasmania (Tasmanian Dam case), this article focuses on what the case reveals about the damming of rivers and the role of law in constituting institutions, technologies and practices for that purpose. Australia was colonised by a civilisation that had embedded a technical utilisation of rivers within its laws. Damming rivers, as a reified practice was fostered by modern, technical knowledge. That knowledge displaced other knowledges; including Aboriginal traditional knowledge of land and waters. In 1983, law held the promise of instantiating a new dynamic for human interaction with rivers, as the Tasmanian Dam’s case juxtaposed the international principles of environmental protection with the centralised control over water by large, bureaucratic state agencies that had developed in Australia over the twentieth century. The judgments of Chief Justice Gibbs and Justice Brennan are remarkable for the contrasting visions of dams that they reveal. Yet the dam, and even the river itself, have largely been occluded form legal memory; although the legacy of the case as a platform for later environmental legislation has been significant.

Acknowledgements

The author gratefully acknowledges the contribution made to this article by a number of people. First, many ideas were initially discussed in collaborative work with Professor Ray Ison and Dr Phil Wallis, Monash Sustainability Centre. Second, much of the over-arching inspiration for the article was provided by Dr Ann Genovese in developing the turning points theme for the Commonwealth v Tasmania symposium and the Special Issue of the GLR. The Melbourne Law School Research Service, in particular Robin Gardner and Cate Read, was wonderful in the research and editorial support that was offered. Finally the GLR editors were very patient about extended time frames. I thank them all for allowing me the opportunity to develop the article.

Notes

¹ Cathcart (2009), p 4.

² Fisher (2000), pp 4–5 and 65–66. See also, Gartner v Kidman (1962) 108 CLR 12, 23. The very concept of a watercourse is challenged by Australia’s physiography.

³ Giblett (2007), p 41, Morgan (2006), p 138.

⁴ For example, see Irrigation Act 1886 Victoria, and the establishment of the State Rivers and Water Supply Commission in 1905.

⁵ Weir (2009), p 3.

⁶ Structural coupling within systems’ theory suggests that bio-physical and social elements exist in a dynamic relationship of interconnection; see for example, Ison (2010).

⁷ McKay (2008), p 47.

⁸ Commonwealth v Tasmania (1983) 158 CLR 1.

⁹ Coper (1983), pp 1–2.

¹⁰ Grinlinton (1990), p 74.

¹¹ Boer (1992).

¹² Peel and Godden (2005), p 668.

¹³ Weir (2009), p 3.

¹⁴ Environmental groups challenged major project developments from the mid 1970s. See for example, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.

¹⁵ For a discussion of dams as artefacts, see D’Souza (2006), p 5.

¹⁶ Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (World Heritage Convention). Australia ratified the Convention on 22 August 1974.

¹⁷ For discussion of how practices constitute a ‘modality’, see Humberto Maturana Romesin (2002).

¹⁸ Weir (2009), p 21.

¹⁹ Mitchell (2002), p 52.

²⁰ Rose (1990), p 261.

²¹ Getzler (2004), p 1.

²² Getzler (2004), p 5.

²³ Getzler (2004), p 6.

²⁴ For a general discussion on common law riparian principles, see Gardner et al (2009), chp 2.

²⁵ See discussion in Getzler (2004), p 9.

²⁶ Sultana and Loftus (2012), p 5.

²⁷ D’Souza (2006), p 27.

²⁸ Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, pp 88–119 (Vice President Weeramantry).

²⁹ De Silva (2005), p 40.

³⁰ The most recent iteration being the Murray-Darling Basin Authority initiated under the Water Act 2007 (Cth).

³¹ Molle (2009), p 484.

³² Molle (2009), p 484.

³³ For a discussion of ‘hard law’ and ‘soft law’ in governing river basins, see Johns et al (2012).

³⁴ Molle (2009), p 486.

³⁵ Weir (2009), p 8.

³⁶ D’Souza (2006), p 47.

³⁷ Weir (2004), p 14.

³⁸ Giblett (2007).

³⁹ D’Souza (2006), p 30.

⁴⁰ Ison (2010), chp 1.

⁴¹ Cheney et al (2007).

⁴² Slinger et al (2011).

⁴³ Mitchell (2002), p 9.

⁴⁴ D’Souza (2006), chp 15.

⁴⁵ Mitchell (2002), p 10.

⁴⁶ For a discussion of the artefact concept, see Maturana and Poerksen (2004); Giddens (1984).

⁴⁷ D’Souza (2006), chp 2.

⁴⁸ D’Souza (2006), p 7.

⁴⁹ D’Souza (2006), p 31.

⁵⁰ Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, p 88.

⁵¹ Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, p 89.

⁵² Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, p 103.

⁵³ Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, p 104.

⁵⁴ Case Concerning the Gabčikovo-Nagymaros Project (1997) ICJ Reports 7, pp 39–46.

⁵⁵ For further discussion, see Sands and Peel (2012), p 305.

⁵⁶ Head (1989), p 10; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at 3.

⁵⁷ Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at 2.

⁵⁸ Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at 5.

⁵⁹ Morgan et al (2006).

⁶⁰ Jackson and Langton (2012).

⁶¹ Crase (2008), p 2.

⁶² Musgrave (2008), p 38.

⁶³ Crase (2008), p 7.

⁶⁴ Slinger et al (2011).

⁶⁵ Australian Bureau of Statistics (2011). Over 500 ‘large’ dams in Australia have a combined capacity of 83,853 gl as at June 2005.

⁶⁶ Duncan and Kellow (2008), p 109.

⁶⁷ Weir (2009), chp 2.

⁶⁸ Musgrave (2008), p 35.

⁶⁹ Musgrave (2008), p 35.

⁷⁰ Musgrave (2008), p 38. See also, Duncan and Kellow (2008), p 117.

⁷¹ Ward (2000), p 27.

⁷² The seminal work is Davidson (1969).

⁷³ Musgrave (2008), p 39.

⁷⁴ Council of Australian Governments, Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray Darling Basin (2004); Council of Australian Governments, Intergovernmental Agreement on a National Water Initiative (2004).

⁷⁵ Musgrave (2008), p 38.

⁷⁶ Slinger et al (2011), p 35.

⁷⁷ The Commonwealth Environmental Water Holder (a statutory authority) is now the major ‘owner’ of water entitlements in Australia. See Part 6 of the Water Act 2007 (Cth).

⁷⁸ Duncan and Kellow (2008), p 109.

⁷⁹ Duncan and Kellow (2008), p 111.

⁸⁰ Duncan and Kellow (2008), p 114.

⁸¹ The only provision of the Commonwealth of Australian Constitution Act 1900 (‘the Constitution’) to deal expressly with natural resource issues is section 100, which prohibits the Commonwealth ‘by any law or regulation of trade or commerce’ abridging ‘the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.’

⁸² Crawford (1991), p 13. See also, Grinlinton (1990), p 77.

⁸³ Internationally, countries attending the Stockholm Conference on the Human Environment in June 1972 agreed that ‘[t]he protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments’: Declaration of the United Nations Conference on the Human Environment (1972) 11 ILM 1416, 1416; (1973) UN Doc A/Conf.48/14/Rev. 1.

⁸⁴ Hutton and Connors (1999), p 118.

⁸⁵ Hutton and Connors (1999), p 119.

⁸⁶ Duncan and Kellow (2008), p 116.

⁸⁷ Hydro Tasmania still retains priority access to a large component of Tasmania’s water. See Duncan and Kellow (2008), p 117.

⁸⁸ See Boer (1992), p 247.

⁸⁹ Hutton and Connors (1999).

⁹⁰ Hutton and Connors (1999).

⁹¹ Hutton and Connors (1999), p 163.

⁹² Boer (1992), p 136. Boer notes that this Act was the only statute enacted by a party to the Convention to ensure its domestic implementation.

⁹³ Boer (1992), p 136. The Commonwealth government also sought to rely on the ‘race’ power to support provisions of the World Heritage Properties Conservation Act 1983 given that ‘much of Australia's distinctive heritage of universal value consists of relics of Aboriginal culture’: Commonwealth, Parliamentary Debates, House of Representatives (21 April 1983), pp 46–52 (Mr Cohen, Minister for Home Affairs and the Environment).

⁹⁴ World Heritage Properties Conservation Act 1983 (Cth), ss 9 and 10. This Act was repealed with enactment of the Environment Protection and Biodiversity Act 1999 (Cth).

⁹⁵ Fisher (2010).

⁹⁶ Commonwealth v Tasmania (1983) 158 CLR 1 at 121–122 (Mason J); p 129 (Brennan J).

⁹⁷ Commonwealth v Tasmania (1983) 158 CLR 1 at 121 (Mason J); pp 171–172 (Murphy J).

⁹⁸ Commonwealth v Tasmania (1983) 158 CLR 1 at 174.

⁹⁹ Commonwealth v Tasmania (1983) 158 CLR 1 at 58.

¹⁰⁰ Commonwealth v Tasmania (1983) 158 CLR 1 at 59–60.

¹⁰¹ Commonwealth v Tasmania (1983) 158 CLR 1 at 60.

¹⁰² Commonwealth v Tasmania (1983) 158 CLR 1 at 205.

¹⁰³ Commonwealth v Tasmania (1983) 158 CLR 1 at 137 (Mason J).

¹⁰⁴ See for example, Commonwealth v Tasmania (1983) 158 CLR 1 at 143. Mason J discusses whether the Commonwealth ‘regime of control’ will impact upon Tasmania’s capacity to control development.

¹⁰⁵ Commonwealth v Tasmania (1983) 158 CLR 1 at 131 (Mason J); p 172 (Murphy J); p 232 (Brennan J) and p 259 (Deane J). See also, Richardson v Forestry Commission (1988) 164 CLR 261 at 289 (Mason CJ and Brennan J).

¹⁰⁶ Dryzek (2005), p 75.

¹⁰⁷ Crawford (1991), p 11.

¹⁰⁸ Richardson v Forestry Commission (1988) 164 CLR 261.

¹⁰⁹ Queensland v Commonwealth (1989) 167 CLR 232.

¹¹⁰ See Lindell (1999).

¹¹¹ The cooperative approach to environmental management was formalised by Commonwealth, State and local governments in the Inter-Governmental Agreement on the Environment, 1 May 1992 (IGAE).

¹¹² See the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment (HoA) concluded at the Council of Australian Governments (CoAG) meeting in December 1997, [3].

¹¹³ See, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 12–24.

¹¹⁴ See Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 44–65A.

¹¹⁵ See Minister for the Environment & Heritage v Queensland Conservation Council (2004) 139 FCR 24 (Full Federal Court). The Full Federal Court upheld the decision of Justice Kiefel in the earlier case of Queensland Conservation Council Inc v Minister for the Environment & Heritage [2003] FCA 1463. The Full Federal Court decision was not appealed by the Commonwealth Environment Minister to the High Court.

¹¹⁶ Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 75.

¹¹⁷ Godden and Peel (2010), p 674.

¹¹⁸ For discussion of the range of adaptation to water scarcity that emerged, see Poh-Ling Tan (2010).

¹¹⁹ Australian Government, Department of Environment, Heritage, Water and the Arts, Refusal of Approval Traveston Crossing Dam, http://www.environment.gov.au/epbc/notices/assessments/2006/3150/refusal-approval.pdf.

¹²⁰ See the Save the Mary River website at http://www.savethemaryriver.com/drpl/, accessed 1 May 2015.

¹²¹ See Barnett and O’Neill (2010), pp 211–213.

¹²² Department of Industry, Parliament of Australia, Energy White Paper: Green Paper (2014) http://ewp.industry.gov.au/files/egp/energy_green_paper.pdf; Joint Select Committee on Northern Australia, Parliament of Australia, Pivot North: Inquiry into the Development of Northern Australia - Final Report (2014) http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Northern_Australia/Inquiry_into_the_Development_of_Northern_Australia/Tabled_Reports.

¹²³ See for example, ‘Green groups react angrily to Abbott government's development plans for northern Australia’, Sydney Morning Herald, http://www.smh.com.au/federal-politics/political-news/green-groups-react-angrily-to-abbott-governments-development-plans-for-northern-australia-20140610-39vdq.html, 14 June 2014.

¹²⁴ See Office for Northern Australia and the Commonwealth’s forthcoming White Paper on Developing northern Australia, http://northernaustralia.dpmc.gov.au/

¹²⁵ For a discussion of these changes and their federal impact, see Gardner (2012).

¹²⁶ Holley and Sinclair (2013), p 52.

¹²⁷ Weir (2009), p 46.

¹²⁸ Weir (2009), p 47.

¹²⁹ Mackinnon (2007).

¹³⁰ Law and Urry (2004).

¹³¹ A major impetus for the Convention was the need to remove cultural heritage items due to the flooding of the Nile Valley by the Aswan High Dam.