Environment Law in the Northern Territory

Water allocation and management

Introduction

Water resources in the Northern Territory are managed under the Water Act and Water Regulations by:

  • the Minister for Land Resource Management establishing water control districts[1]
  • controlling which uses are able to take water in a water control district (these are the beneficial uses)[2]
  • having water allocation plans (also called a WAP) that allocate water to beneficial uses[3]
  • requiring people (and companies) to obtain a licence if they want to extract or use groundwater, or extract surface water in waterways[4]
  • requiring people to get a permit prior to undertaking works to waterways, drilling bores, or returning water to aquifers
  • imposing criminal offences for causing water pollution.

There are several opportunities for public participation in water resources management.  These are:

  • the right to object to the grant of water extraction licences[5]
  • The right for a “person aggrieved” by an action or decision of the Controller of Water Resources to refer the matter to the Minister for Land Resources Management for review.[6]

What are beneficial uses of water?

The law recognises the following uses as beneficial uses:

  • environment – to provide water to maintain the health of aquatic ecosystems
  • rural stock and domestic
  • public water supply – to provide source water for drinking purposes delivered through community water supply systems
  • agriculture – to provide irrigation water for primary production including related research
  • cultural – to provide water to meet aesthetic, recreational and cultural needs
  • aquaculture – to provide water for commercial production of aquatic animals including related research
  • industry – to provide water for industry, including secondary industry and a mining or petroleum activity

Water control districts

A water control district is an area of land which the Minister for Land Resource Management has established as a water control district.[7]   A list of water control districts is shown on the Northern Territory Department of Land Resource Management website.

Water allocation plans

The management of water resources in a water control district is done in accordance a water allocation plan.[8]  Water allocation plans are plans which say how water can be used within a water control district.[9]  Water allocation plans allocate water to beneficial uses for an area.[10] Within any water control district, certain uses of water can be declared to be beneficial uses for that area. Beneficial uses can be different for different areas.

Water allocation plans are prepared by the Northern Territory Department of Land Resource Management.

Once a water allocation plan is in force, the Minister for Land Resource Management can set up and appoint members to Water Advisory Committees for specific water control districts.[11]  The purpose of Water Advisory Committees for water control districts is to advise the Controller of Water Resources on the effectiveness of the water allocation plan in maximising economic and social benefits within ecological restraints.[12]

Water extraction

Surface water

Water which flows or is contained in waterways is owned by the Northern Territory.[13]  A waterway means:[14]

  • river, creek, stream or watercourse
  • natural channel in which water flows, whether or not the flow is continuous
  • channel formed wholly or partly by the alteration of a natural waterway or channel lake, lagoon, swamp or marsh that water collects (whether or not the collection is continuous) and into, through or out of which a current flows (whether or not the flow is continuous)
  • land on which water collects as a result of works being done to a waterway
  • land which is intermittently covered by water from a river, creek, stream, watercourse, natural channel, or natural channel which has been altered or relocated (i.e. a floodplain)
  • land that has been published in the Gazette by the Minister for Land Resource Management as being a waterway for the purposes of the Water Act.

The Water Act regulates the taking of surface water.[15]

People can take water from a waterway for domestic purposes or for watering animals (called stock and domestic use) without holding a licence.[16]  However, people taking or using water flowing or contained in a waterway that is not for stock or domestic purposes can only do so if they hold a licence.[17]  People must apply to the Controller of Water Resources for a licence.[18]  Licences may be granted with a duration up to 10 years.[19]

In addition to the exemption for people to lawfully extract water for stock and domestic purposes without a licence, the mining industry is also exempt from water licensing requirements.  For further information, read our Fact Sheet on Water and Mining.

Groundwater

Groundwater is water from below the surface of the ground, such as water in an aquifer or a bore.[20]  It does not include water within water supply and distribution works or a waste system.  Some areas of the Northern Territory rely almost exclusively on groundwater.[21] The Water Act also regulates the extraction of water from groundwater and the disposal of waste to groundwater.[22]

People who own or occupy land can take groundwater from beneath their land to use for domestic purposes, irrigating a garden of less than 0.5 ha, and to provide drinking water for grazing animals.[23]

For all other purposes extracting groundwater requires the person taking the groundwater to hold a licence.[24] Licences may be granted with a duration up to 10 years.[25]

Making decisions on the grant or refusal of water extraction licences

The Controller of Water Resources makes the decision on whether or not to grant a water extraction licence. The Controller of Water Resources can also amend, modify, suspend or revoke water extraction licences.

The Controller must give notice to landowners and the public, and invite and consider comments received when making decisions about whether or not to grant or refuse:

  • a surface water extraction licence
  • a groundwater extraction licence
  • the amendment of an existing water extraction licence to increase the amount of water allowed to be extracted.

There is a process for notifying the public about these applications, which is set out below:

  • When a person applies for a licence to extract water, the Controller of Water Resources must publish a notice in a newspaper circulating throughout the Northern Territory saying that a groundwater extraction licence application has been made.[26]
  • The notice has to tell people:[27]
    • the proposed beneficial uses of the water
    • the maximum quantity of water to be taken annually for each beneficial use
    • the name of the waterway from which water will be taken
    • the point of the waterway or the bore from which water will be taken
    • how the water will be taken (e.g. by diverting the flow of a waterway, or by sinking a bore)
    • a description of the land on which the waterway or bore will be located
    • a description of the land on which the water will be used
    • information from the Controller of Water Resources about how much water is allowed to be extracted from the water resource and how much water within this allowance is already being used under existing water extraction licences[28]
    • the estimated total sustainable yield of water in the water resource[29]
  • In addition to the public notice, the Controller of Water Resources also has to give the notice to owners and occupiers of land immediately adjacent to land from which the water will be taken and land on which water will be used.[30]

Public comments

People can object (called a comment under the Water Act) to a proposed decision to grant or amend water extraction licences.   This means that any person (or group) can make a comment about a water extraction licence application.[31]

Comments must be made in writing within 30 days of the notice.

What does the Controller have to consider when granting water extraction licences?

When deciding whether or not to grant or amend a licence, the Controller of Water Resources must take into account any comments he or she receives within 30 days of the notice.[32]

The Controller of Water Resources must also take into account the following considerations (amongst others):[33]

  • the declared beneficial uses for the water (including the environment – specifically water to maintain the health of aquatic ecosystems)
  • the availability of water in the area
  • the water allocation plan for the area
  • the existing and likely future demand for water for domestic purposes in the area
  • any likely adverse effects of the licence on the supply of water to another person who is entitled to it
  • any likely adverse effects from activities under the licence on the quality of any other water or on the use or potential use of any other land
  • the quantity or quality of water to which the applicant may already be entitled
  • existing or proposed facilities for retaining, recovering or releasing drainage water in the area
  • relevant provisions under the Planning Act for the development or use of the land

Can I appeal?

If a decision is made to grant a water extraction licence or increase the amount that can lawfully extracted under an existing licence, a ‘person aggrieved’ may apply to the Minister for Land Resource Management for the decision of the Controller of Water Resources to be reviewed. [34]  This is not an appeal to a court or tribunal. Instead this process is known as an internal review.  The Minister can uphold the decision made by the Controller for Water Resources, substitute his or her own decision, or refer the application back to the Controller for him or her to make a new decision. [35] The Minister can also refer the decision to the Water Resources Review Panel to get the Panel’s advice. [36]

There is no legal process for a ‘person aggrieved‘ to appeal the merits of the decision of the Controller of Water Resources to a tribunal or court.  However, certain people may be able to seek judicial review of the decision in the Supreme Court of the Northern Territory. For more information, read out Fact Sheet on Judicial review and merits review.

Other works involving water

Bore construction and drilling

In addition to licences to extract water, certain other approvals may also be required.  A bore construction permit is needed before a bore can be drilled or works can be done on a bore.[37]  Only licensed people who hold a drilling licence are entitled to drill or do works on a bore.[38]

Aquifer recharge

People cannot put water back into an aquifer unless they hold a recharge licence.[39]

Construction or alteration of a dam

It is an offence to construct or alter a dam, water storage or control structure in a waterway or that could affect the flow of water in a waterway without a construction permit from the Controller of Water Resources.[40]  People who are owners or occupiers of land are allowed to drain their land or conserve water on their land, for example by building a dam, only if the flow or likely flow of water in or into a waterway is not materially changed.[41]


[1] s22 Water Act

[2] s22A Water Act

[3] s22B(5)(a) Water Act

[4] Parts 5 and 6 Water Act

[5] s68(4) Water Act

[6] s30(1) Water Act

[7] s22 Water Act

[8] s22B(4) Water Act

[9] s22B(5) Water Act

[10] s22(B)(5)(a) Water Act

[11] s23(1A) and (1B) Water Act

[12] s23(1B)(a) Water Act. Note that this is the primary purpose of  Water Advisory Committee, but that the Controller can direct the Committee to do other functions – see s23(1B)(b) and s23(3) Water Act

[13] s9(2) Water Act 

[14] s4 Water Act

[15] Division 2, Part 5, Water Act

[16] s10 Water Act

[17] s45 Water Act

[18] s45(1) Water Act 

[19] s45(3) Water Act

[20] s4 Water Act

[21] http://www.nretas.nt.gov.au/natural-resource-management/water/water_allocation#.UC3T26CAh8E

[22] Part 6 Water Act

[23] s14 Water Act

[24] ss59-61 Water Act

[25] s60(3) Water Act

[26] s68(2) Water Act

[27] s68(3)(b) Water Act

[28] s71B(3)(d)(i) and (ii) Water Act

[29] s71B(3)(d)(iii) Water Act

[30] s71B(6) Water Act

[31] s71B(4) Water Act

[32] s71C(2) Water Act

[33] s90(1) Water Act

[34] ‘person aggrieved‘ is not defined in the Water Act.  Please seek independent legal advice if you wish to confirm whether or not you have a right of appeal.

[35] s30(3) Water Act

[36] s30(3)(b) Water Act

[37] s57  Water Act

[38] s48(1)(a)-(d) Water Act

[39] s67 Water Act

[40] s41 Water Act

[41] s40(2) Water Act