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very few exceptions (see WMA 2000 s52; Water Management (General) Regulation
2018) either an entitlement or allocation under a Water Access Licence (WAL) (see
WMA 2000 s 56) is required for lawful water abstraction in New South Wales
(NSW). WALs, entitlements and allocations may be purchased on the market.
3 ‘Thieves’: Water Theft
In 2017, the current affairs program, Four Corners aired allegations of possible
water theft (ABC 2017). Some irrigators were thought to have taken water to which
they were not entitled under their WALs and associated governance instruments.
Public reaction to the allegations was swift (Fitzpatrick and Calvert 2017). Even if
people were not greatly concerned about the environment, they did not like a thief.
In response to the theft allegations and growing public concern, the NSW
Government commissioned the Matthews’ Report. Matthews found NSW’s water
compliance and enforcement were ‘ineffectual and require[d] significant and urgent
improvement’ (NSW Department of Industry 2017a, p. 4). In particular, he found
that metering, monitoring and measurements of water extraction in the BarwonDarling system were below standard (NSW Department of Industry 2017a, p. 4).
Accordingly, water could be easily stolen because there were inadequate records of
abstractions being kept. Matthews, therefore, recommended a ‘no metering, no
pumping’ rule (NSW Department of Industry 2017a, p. 4) and suggested a ‘systemic fix’ (NSW Department of Industry 2017a, p. 4) that included setting up a
separate Natural Resources Access Regulator (NSW Department of Industry 2017a).
He also criticised the tardiness of the state regulator’s responses (NSW Department
of Industry 2017a, p. 4) and noted that ‘the [water] industry's “social licence to
irrigate” [was] at stake’ (NSW Department of Industry 2017a, p. 5), so acknowledging a social and ethical dimension (not just a legal one) to the issue of water sharing.
The NSW Parliament’s legislative response to the situation came in the form of
the Water Management Amendment Act 2018 (No 31) which increased the maximum penalty for water theft to five million dollars for a company and $500,000 for
an individual but did not introduce a total ban on unmetered water abstraction (NSW
Department of Industry 2017b). Hence, floodplain water may still be harvested in
NSW without monitoring. Levees and canals may ‘legally’ divert flood waters into
irrigation storage tanks and away from rivers, thus contributing to ongoing environmental harm and ill effects for downstream users.
3.1 Barlow’s Case
Barlow’s case represents one of the few water theft prosecutions. Barlow ultimately
pleaded guilty and in 2019, was sentenced (WaterNSW v Barlow) for taking water
when an embargo imposed by Temporary Water Restrictions (Upper Darling Basin)
‘Thieves, Shady Deals and Murder’: Water Theft, Buy-Backs and Fish Kills in…
very few exceptions (see WMA 2000 s52; Water Management (General) Regulation
2018) either an entitlement or allocation under a Water Access Licence (WAL) (see
WMA 2000 s 56) is required for lawful water abstraction in New South Wales
(NSW). WALs, entitlements and allocations may be purchased on the market.
3 ‘Thieves’: Water Theft
In 2017, the current affairs program, Four Corners aired allegations of possible
water theft (ABC 2017). Some irrigators were thought to have taken water to which
they were not entitled under their WALs and associated governance instruments.
Public reaction to the allegations was swift (Fitzpatrick and Calvert 2017). Even if
people were not greatly concerned about the environment, they did not like a thief.
In response to the theft allegations and growing public concern, the NSW
Government commissioned the Matthews’ Report. Matthews found NSW’s water
compliance and enforcement were ‘ineffectual and require[d] significant and urgent
improvement’ (NSW Department of Industry 2017a, p. 4). In particular, he found
that metering, monitoring and measurements of water extraction in the BarwonDarling system were below standard (NSW Department of Industry 2017a, p. 4).
Accordingly, water could be easily stolen because there were inadequate records of
abstractions being kept. Matthews, therefore, recommended a ‘no metering, no
pumping’ rule (NSW Department of Industry 2017a, p. 4) and suggested a ‘systemic fix’ (NSW Department of Industry 2017a, p. 4) that included setting up a
separate Natural Resources Access Regulator (NSW Department of Industry 2017a).
He also criticised the tardiness of the state regulator’s responses (NSW Department
of Industry 2017a, p. 4) and noted that ‘the [water] industry's “social licence to
irrigate” [was] at stake’ (NSW Department of Industry 2017a, p. 5), so acknowledging a social and ethical dimension (not just a legal one) to the issue of water sharing.
The NSW Parliament’s legislative response to the situation came in the form of
the Water Management Amendment Act 2018 (No 31) which increased the maximum penalty for water theft to five million dollars for a company and $500,000 for
an individual but did not introduce a total ban on unmetered water abstraction (NSW
Department of Industry 2017b). Hence, floodplain water may still be harvested in
NSW without monitoring. Levees and canals may ‘legally’ divert flood waters into
irrigation storage tanks and away from rivers, thus contributing to ongoing environmental harm and ill effects for downstream users.
3.1 Barlow’s Case
Barlow’s case represents one of the few water theft prosecutions. Barlow ultimately
pleaded guilty and in 2019, was sentenced (WaterNSW v Barlow) for taking water
when an embargo imposed by Temporary Water Restrictions (Upper Darling Basin)
‘Thieves, Shady Deals and Murder’: Water Theft, Buy-Backs and Fish Kills in…