By Emeritus Professor Alex Gardner and Melanie Fraser
The Western Australian Court of Appeal in Crossley v English [2025] WASCA 141 (24 September 2025) denied plaintiffs/appellants (“appellants”) a judicial remedy against the defendant/respondent (“respondent”) upstream landholder whom the primary judge found in Crossley v English [No 2][2024] WASC 268(26 July 2024) had infringed the appellants’ statutory riparian rights from 2011 till 2024.
Those rights are declared by s.20(1) Rights in Water and Irrigation Act 1914 (WA) (‘RiWI Act’): a riparian landholder has the right ‘to take water’ in a watercourse for domestic and stock watering purposes, and for any other purpose ‘to the extent that the flow of water … is not thereby sensibly diminished’.
The primary judge found that the respondent’s construction of a large dam in 2011 ‘sensibly diminished’ the flow of water in the watercourse under s.20(1)(c) RiWI Act, and continued to exceed his entitlement, but held that the appellants were statute barred from bringing the proceedings because they had not commenced their action within six years of the construction of the dam. The finding of sensible diminishment was not disturbed by the Court of Appeal, though all three appeal judges (Thomson P and Mitchell and Archer JJA) agreed that the proceedings were statute barred. Mitchell and Archer JJA also held that s.20 did not support a cause of action for the appellants in seeking redress against the respondent’s actions.
The judicial reasoning on these three issues requires detailed analysis, but that is not the purpose here. Rather, central to the reasoning of the four judges (primary and appellate) was the decision that the Crown vesting provision, s.5A RiWI Act, extinguished all common law riparian rights, which set the baseline for the interpretation of the RiWI Act operative provisions. Our purpose here is to challenge the legal correctness of that finding.
The Rights in Water and Irrigation Amendment Act 2000 (WA) inserted s.5A into the RiWI Act Part III ‘Control of water resources’:
The right to the use and flow, and to the control, of the water at any time in any –
- watercourse; or
- wetland; or
- underground water sources,
vests in the Crown except as allocated under this Act or another written law.
There are notable exemptions from this Crown vesting. Surface water not in a watercourse or wetland is not included. By s.5B, s.5A does not prevent such surface water from being drained or captured by construction of a dam, subject to not sensibly diminishing or adversely affecting the water in a watercourse or wetland. Further, by ss. 5(1)(a) and (b), s.5A and regulation under Part III do not apply:
- to water flowing from any spring that rises to the surface on private land until it passes beyond the boundaries of the land belonging to that landholder; nor
- to the water of any wetland the bed of which is wholly within the boundaries of a private landholding.
In each of these three situations, it is the common law that confers the right to take and use these water resources.
For Crown vested water resources, Part III RiWI Act contains three sets of statutory controls, first enacted in 1984 and amended in 2000:
- Division 1B (Certain surface waters) applies to watercourses and wetlands situated in proclaimed areas where the taking of water for more than domestic and stock watering purposes requires a licence;
- Division 2 (Other surface waters), including s.20, applies to all watercourses and wetlands to which Division 1B does not apply – there are no licensing requirements unless a watercourse or wetland is prescribed under s.5C(2)(b); and
- Division 3 (Underground waters) applies to all ground water in the State, authorising the Governor to proclaim or prescribe areas for licensing of well construction and operation, and to exempt minor uses (e.g. domestic and stock uses) from licensing.
The primary judge, Hill J, held that the appellants were limited to a statutory claim due to the abrogation of common law riparian rights. Her Honour found at[178] ff that, at least since the 1984 amendments, the RiWI Act ‘abrogated all material common law riparian rights arising out of the use, flow and control of water in Western Australia’. Hill J emphasized, at [180]-[182], the terms of s.5A and referred to the text of the operative provisions for riparian rights in s.9 (proclaimed areas) and s.20 (unproclaimed areas), and the powers of the Minister.
Ultimately, at [160]-[168] and [183]-184], her Honour rested her decision on the context and purpose of the RiWI Act and on the authority of ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; 240 CLR 140 (‘ICM‘), [72] (French CJ, Gummow and Crennan JJ), [144] (Hayne, Kiefel and Bell JJ) & [195], [197] (Heydon J) – a case about New South Wales ground water law.
In ICM, their Honours held unanimously that the vesting provision in the Water Act 1912 (NSW) divested common law rights to groundwater. Section 4B vested in the NSW Water Resources Commission ‘for the benefit of the Crown’ the right to the ‘use and flow and to control of all sub-surface water’: [72]. At [72], French CJ, Gummow and Crennan JJ found that the vesting provision was ‘apt to divest any common law rights’ to groundwater. Similarly, at [144], Hayne, Kiefel and Bell JJ, found that the common law right to groundwater ‘disappeared altogether … with the vesting of sub-surface water in the State’.
However, while Hayne et al acknowledged the force of the Crown vesting provision at [116], at [117] ff their Honours reached their findings through analysis of the legislative scheme in question, rather than merely judicial precedent. While the High Court’s interpretation of section 4B could suggest that vesting provisions are sufficient in themselves to divest owners of common law rights, the persuasiveness of the ICM decision on the interpretation of analogous provisions in other jurisdictions is unclear.
Nevertheless, Hill J concluded at [184]: “The context of the Act includes that all water in any watercourse, wetland, or underground water source in Western Australia is now subject to the Act”.
In the appeal, Thomson P at [73]-[74] and Mitchell and Archer JJA at [183] decided that all the common law riparian rights had been abrogated by the RiWI Act. Their Honours relied on the enactment of s.5A in the 2000 amendments and the authority of ICM. Thomson P at [84] noted that the 1984 s.8 Crown vesting provision, when s.20(1) was enacted, was replaced in 2000 with s.5A, omitting to note that the s.8 provision did not apply to Division 2 unproclaimed areas.
Only the appellants in the Court of Appeal seem to have argued that the common law riparian rights were abrogated in 1984 when s.20 was first enacted. In other words, it was the operative words of s.20 that extinguished the common law riparian rights by replacing them with an apparent codification of the common law.
In contrast, Mitchell and Archer JJA said at [188] that it was the lack of a Crown vesting provision for the unproclaimed areas until 2000 that permitted riparian landholders to continue to have common law rights to the use and flow of water in watercourses in those unproclaimed areas. With respect, when interpreting s.5A, there are four reasons why more weight should be given to a full suite of common law rights to surface and ground water and to the legal effect of the operative provisions of Divisions 1B to 3.
First, it is legally and practicably infeasible to hold that the Crown vesting provision alone is what extinguishes the common law rights because that proposition does not work with the RiWI Act operative provisions relating to underground water (except artesian wells) – an issue not addressed by any of the four judges or counsel.
As shown above, s.5A also vests in the Crown “the right to the use and flow, and to the control, of water at any time in any … (c) underground water source, …”. In contrast to the provisions for watercourses and wetlands, Part III, Division 3 (regulating ‘underground waters’) does not provide for the regulation of the taking and use of groundwater in areas not proclaimed for licensing: see “Proclaimed groundwater areas map”.
There is no equivalent of s.20 for underground water. A large area of private land in the south-west, covering the Darling Scarp and the wheatbelt is regulated only by the common law of groundwater, which confers on a private landholder the right to construct works and extract groundwater without limit on its volume or purpose of use: Gardner et al, Water Resources Law, 2nd ed, [8.33]-[8.40].
It operates on residential landholders, orchardists, bottled water companies, wheatbelt enterprises, and even landholders supplying water to mining companies. This is accepted by the Western Australian Department of Water and Environmental Regulation: “Do I need a licence to take groundwater or construct or alter a bore?”
Rights to take and use water may be granted to the holders of mining tenements under the Mining Act 1978 (WA)and in respect of Crown land under ss.91 and 267 Land Administration Act 1997 (WA), but there is no general legislation that confers rights to take and use groundwater on private land. The proper interpretation of Part III, Division 3 is that it allocates underground water in unproclaimed areas by the common law.
Secondly, there is no good reason to distinguish the effect of s.5A on common law riparian rights and on groundwater rights. If s.5A does not divest all common law rights to groundwater, then neither does it divest all common law riparian rights.
Rather, analysis of the statutory riparian rights shows a limited focus compared to the list of common law riparian rights derived from English and Australian case law; for example, Mason v Hill [1833] EngR 171; (110 ER 692); Miner v Gilmour (1858) 12 Moo PC 131; 14 ER 861 (cited by the Court of Appeal); Young & Co. v. Bankier Distillery Co. (1893) AC, at p 698; and H Jones & Co Pty Ltd v Municipality of Kingborough (1950) 82 CLR 282. We can compile a bundle of riparian rights:
- the right to natural flow, neither increased nor diminished, nor penned or thrown back on an upper riparian;
- the right to the natural flow without sensible alteration in its character or quality;
- the right to take water for ordinary use (domestic and stock watering) without regard to causing deficiency for lower riparians;
- the right to take water for extraordinary use on the riparian land provided there is no interference with the lawful use by other riparians; and
- the right to make or install works (dams, pumps) to use or divert the flow.
In contrast, s.20(1) materially provides that the owner or occupier of any riparian land through which runs any watercourse or contiguous to which is any wetland:
has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge –
(a) for the domestic and ordinary use of himself and of his family and servants; and
(b) for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(c) to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose, ….
This provision clearly confers statutory riparian rights to take and use water within relevant limits drawn from the common law: per Thomson P at [94]. The section relates only to the right to take and use water. It displaces the common law as the source of the declared rights. The provision does not mention the common law right to a flow that is neither unnaturally increased nor penned back, nor a right to construct works to take water.
If the common law rights to groundwater on private land have survived the enactment of the RiWI Act, why do these common law riparian rights not also survive? Hill J at [359] held that there was no right not to suffer an unnatural increase in riparian flow because such a right was not expressed in s.20. With respect, this approach is contrary to a central principle of statutory interpretation that the Parliament does not intend to expropriate common law property rights without clear and unmistakable statutory language: R & R Fazzolari Pty Ltd v Parramatta City Council; Mac’s Pty Ltd Ltd v Parramatta City Council [2009] HCA 12 at [41]-[45].
Thirdly, there are provisions in the RiWI Act (e.g. ss.5 and 5B) relating to landholders exercising rights to take water, including from watercourses and wetlands, that rely on landholders’ common law rights to construct works to capture water. Significantly, s.20(4) provides that the section “does not prevent the … [landholder] from making any dam or tank on the land as long as the … [landholder] is taking water in accordance with this section”.
The right to make a dam on a watercourse under Division 2 comes from the common law of riparian rights, as explained in Miner v Gilmour in the passage quoted by the Court of Appeal at [38] and [180]. There was no questioning in the proceedings of the continuation of that common law riparian right to construct a dam to control the flow of water in unproclaimed areas.
Ironically, the outcome of saying that the s.5A Crown vesting provision enacted in 2000 extinguishes all common law riparian rights is that there was no right of riparian landholders, such as the respondent, to make a dam on a watercourse in 2011.
Fourthly, the better view of the operation of the Crown vesting provision and the operative provisions of the RiWI Act is that explained by Fullagar J in Thorpes v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 at 330-331. Fullagar J, the Court agreeing without deciding, doubted that the Water Act 1912-1946 (NSW) Crown vesting provision extinguished common law riparian rights. Rather, it conferred new and superior (sovereign) rights on the Crown that may be exercised in derogation of private riparian rights but, until they were exercised, the private rights co-existed with them.
Hill J at [149] relayed Fullagar J’s concern that it would be contrary to the rules of statutory construction to give the legislation the effect of removing private riparian rights in the absence of clear and unmistakable language. It would mean that a riparian had “no remedy as of right” if an upper riparian breached their entitlement or polluted the water. The WA Supreme Court adopted Fullagar J’s view in Rapoff v Velios [1975] WAR 27, 30-31, holding that the common law riparian rights had not been extinguished in an area that seems to have been proclaimed for licensing.
Perhaps partly in response to the uncertainty in that case, the 1984 Amendments enacted s.20 in terms quite similar to the current s.20, and inserted s.24, a saving of the civil remedies, thus addressing the concerns of Fullagar J. Rather than s.24 removing the primary basis of Fullagar J’s concern (per Hill J at [182]), s.24 should be seen as an affirmation that the common law remedies could be sought in protection of the new statutory expression of the specific riparian rights in s.20.
To the extent that other common law riparian rights were not expressed in s.20, there is no reason why they could not continue to be available with their common law remedies. Although the 2000 amendments inserted the remedial provision of s.5E, that section has a focus different from s.24: per Thomson P at [96]-[99].
The Minister’s second reading speech on the Rights in Water and Irrigation Amendment Bill 1999 (WA) (Hansard, 1 July 1999, p.9936 ff) does not state that the Crown vesting provision is intended to extinguish common law riparian rights. Courts generally view any legislation re-enacted after judicial interpretation as assumed to have approved that interpretation: D Pearce, Statutory Interpretation in Australia, 10th edition, 2023, section [3.59].
The 2000 enactment of s.5A would have been informed by the Rapoff v Velios endorsement of view of Fullagar J. because there was no judicial decision to displace it; indeed, South Australian Supreme Court decision Reid v Chapman (1984) 37 SASR 117 affirms it.
The 2009 ICM decision on NSW law that had comprehensive operative provisions regulating groundwater may be a basis for rejecting the Fullagar J. view in NSW, it is ahistorical to give it a retrospective effect on the interpretation of the 2000 amendments to the RiWI Act, which is differently constructed and still relies on common law propositions, such as the riparian right to construct works to take water from a watercourse.
Editorial note: Since October 2025, Alex Gardner has been acting pro bono as the legal representative of the Crossleys in communications with the Western Australian Minister for Water about their case.
