THE PERSISTENCE OF CORRELATIVE WATER RIGHTS IN COLONIAL AUSTRALIA: A THEORETICAL CONTRADICTION?

Abstract

This paper analyses whether the evolution of water law in the Australian colony of New South Wales (NSW) contradicts theoretical models that suggest in arid countries correlative, land based water rights will be replaced with individual ownership. Evidence from NSW shows a series of Supreme Court decisions between 1850-1870 adopted correlative riparian rights thereby implying that common law was inefficient. However, further consideration of factors that gave rise to these decisions suggests the value of water was higher when used in unity because of the arid climate and non-consumptive nature of water use in the pastoral industry. The findings suggest that where intensity of water use is low, economic development is dominated by industries requiring low levels of capital investment, and acute water scarcity prevails, correlative water rights are efficient.water rights, common law