Legal duties for restoration of waterways and wetlands: a Western Australian analysis and case study

Introduction

In Australia, waterways and wetlands are mostly public resources, their beds and banks and flow of water vested in the Crown in the rights of the States.  Private rights in respect of water resources are regulated by public authorities under broad legislative powers. Yet many of these waterways and wetlands require significant ecological restoration. In this report, ‘restoration’ refers to the level or environmental baseline of water flow prior to human alterations in terms of dams and weirs for consumptive use. This baseline is subject to climatic changes causing a drier climate. We acknowledge the extensive discussion on the meaning of restoration – that is whether the environmental baseline should be pre-European settlement or a more flexible, contemporary baseline – such discussion is, however, outside the scope of this report. We argue that there will be better prospects of achieving ecological restoration aspirations if there are binding public legal duties on relevant public authorities to undertake and demonstrate the restoration.