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Section 26(1)(g) Regulations

Requirements

Section 26(1)(g) empowers the Minister to make regulations prohibiting or regulating any activity in order to protect a water resource or instream or riparian habitat. In terms of section 1 of the National Water Act:

  • “Water resource” includes a watercourse, surface water, estuary, or aquifer;
  • “Instream habitat” includes the physical structure of a watercourse and the associated vegetation in relation to the bed of the watercourse;
  • “Riparian habitat” includes the physical structure and associated vegetation of the areas associated with a watercourse which are commonly characterised by alluvial soils, and which are inundated or flooded to an extent and with a frequency sufficient to support vegetation of species with a composition and physical structure distinct from those of adjacent land areas.

Prima facie, these definitions describe the key components of water source areas. Section 26(4) requires the Minister, when making such regulations, to take into account all “relevant considerations”. The National Water Act provides detailed requirements for the making of regulations, which also rather unusually involves tabling such regulations in Parliament.

Type of legal protection

Appropriately drafted prohibitions or restrictions would provide strong protection, with a potential criminal sanction. The only caveat is that regulations can therefore be withdrawn by the Minister. It is arguable that such withdrawal would also have to be tabled in Parliament “for consideration”; either way, some form of public notice and comment would be required, therefore making it particularly difficult for the Regulations to be withdrawn.

Benefits and Challenges

  • Regulations are open-ended: Section 26(1)(g) does not confine the Minister to any specific measures – it allows the Minister to prohibit completely, or to regulate, any activity with the purpose of protecting water resources or instream or riparian habitats.
  • Regulations are flexible: Section 26(2) provides that the regulations may differentiate between different water resources and different classes of water resources; and may differentiate between different geographical areas. This flexibility allows the different water source areas to be dealt with according to their different threats.
  • Onerous and lengthy procedure: The National Water Act provides for a much more onerous procedure for the passing of regulations than is usually the case – but then this very burden may also discourage and prevent future Ministers from withdrawing effective and appropriate regulations protecting water source areas.
  • Insufficient offences clause: Section 69(2) of the National Water Act limits penalties made for offences created under regulations to “a fine or to imprisonment for a period not exceeding 5 years”. A 5 years imprisonment sentence is not short, but it falls short in the face of other prison sentences prescribed in other environmental legislation, which now goes up to 10 years.