Sharing water from transboundary rivers: limits on State power

Abstract

Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.