§ 418. “Abridge the Right of a State or of the Residents Therein.”

These words do not preserve the pre-existing rights of the States in their entirety. They forbid the Commonwealth to abridge the right of a State or its residents to the “reasonable” use of the waters for certain purposes; but they do not forbid the Commonwealth to abridge the right of a State or its citizens to the unreasonable use of the waters for those purposes, or to their use for other purposes. (See Notes §§ 419, 421, infra.)

RIGHTS BEFORE FEDERATION.—Before Federation, it is clear that the legal rights of each Colony—or of the residents of that colony, as against residents of another colony—to the use of the waters of rivers flowing through the colony, were absolute. There is no such thing as a riparian law between independent States; and as regards their direct relations with each other the several colonies were practically independent. Each colony received, as a part of its heritage, the common law of England; and consequently each colony had, as part of its law, the riparian common law of England. But that law became the law of each colony separately, and not law between the colonies, nor the general law of all the colonies. Each colony had power, by legislation, to alter the common law with regard to the rights to use the waters. Accordingly the Parliament of Victoria, by the Irrigation Act, 1886, No. 898, amended by the Act No. 983, and now re-enacted in the Water Act, 1890, sec. 293, dealt in a comprehensive manner with the control of river waters and watercourses, and riparian rights in connection therewith.

  ― 888 ―
And the Parliament of New South Wales, by the Water Rights Act, 1896, defined the rights of riparian proprietors in that colony, and, subject to those rights, vested in the Crown the right to the use and flow and to the control of water in all rivers and lakes. A precisely similar course of events happened in some of the American States. In each State the common law of riparian rights at first prevailed; but in the “arid region,” where the use of the water is necessary for development, the common law, which entitled every riparian proprietor to the continued natural flow of the water, was found unsuitable, and by custom and State legislation a different rule was recognized, which permits, under certain circumstances, the appropriation of the waters of a flowing stream for mining, agricultural, and other purposes. (United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690; and see Conv. Deb., Melb., pp. 420–3; Prentice and Egan, Comm. Clause, p. 116.)

It was suggested at the Convention, by Mr. Gordon, Mr. Holder, and others, that there were some riparian rights between the colonies, based either upon common law, or upon international law, or upon international comity; and that relief might be had, if not in the colonial courts, at least by application to the Imperial Government. (See Conv. Deb., Adel., pp. 794, &c.; Melb., pp. 31, &c.; 405, &c.) So far, however, as these claims rest upon any suggestion of a legal right, they fail, not only, as was suggested in the Convention (for instance, Conv. Deb., Melb., p. 493), for want of a tribunal, but for want of a law which such tribunal should administer.

Nor does international law carry the matter any further. There is no principle which limits the rights of a State or its citizens to the use of waters flowing through the State. Free navigation of such waters, subject to certain conditions, is indeed generally a subject of treaty or convention between States, and it may be that a refusal to enter into any such convention might be a breach of international comity. (Pitt Cobbett, Cases on Internat. Law, p. 43; Walker, Pub. Internat. Law, p. 37; Hall, Internat. Law, § 39; Conv. Deb., Adel., p. 795; Melb., p. 419.) But there is certainly no principle of international law, and no conventional usage, which purports to apportion the rights of States to appropriate the waters of rivers. The rights of irrigation do not seem to have even formed the subject of international questions in Europe.

“The only irrigating rivers in Europe are those of France, Italy, and Spain, which flow wholly within the territory of the States concerned, and have as yet afforded no opportunity for any difference of opinion on this point. The rivers in regard to which international agreements have been made, and of which the River Danube is an excellent example, are not rivers used for the purpose of irrigation, even to an infinitesimal extent. As a matter of fact, the only river, so far as we know, in which different States are interested, and in which this question has assumed any importance, is the River Rio Grande, dividing Mexico from the United States of America, and there the Mexican Republic, so far as I know, has never been able to obtain any official recognition of its claims from the United States Government, although that river, in many portions, has been almost entirely deprived of its water at certain seasons of the year.” (Mr. Deakin, Conv. Deb. Melb., pp. 1970–71.

Besides rivers flowing through two or more States, the question of boundary rivers needs to be discussed. In Australia the boundaries between States are mostly parallels of latitude and meridians of longitude; but there are two river boundaries—namely, that formed by the Murray River between New South Wales and Victoria, and that formed by the Dumaresq and MacIntyre Rivers between New South Wales and Queensland. The rule of international law as to boundary rivers is that “where it is not proved that either of the riparian States possesses a good title to the whole bed, their territories are separated by a line running down the middle, except where the stream is navigable, in which case the centre of the deepest channel, or, as it is usually called, the Thalweg, is taken as the boundary.” (Hall, Internat. Law, § 38; and see Rorer, Inter-State Law, p. 438.)

In the case of the Dumaresq and MacIntyre Rivers (see Letters Patent of 6th June, 1859, p. 73, supra) this rule would undoubtedly apply; but in the case of the Murray River, special provision is made by the Australian Colonies Government Act (13 and 14

  ― 889 ―
Vic. c. 59) and by the New South Wales Constitution Statute (18 and 19 Vic. c. 54). Sec. 4 of the Australian Colonies Government Act defined the territory of Victoria as “bounded on the North and North-East by a straight line drawn from Cape Howe to the nearest source of the River Murray, and thence by the course of that river to the eastern boundary of the colony of South Australia” Sec. 5 of the Constitution Statute recited that doubts had arisen as to the true meaning of this description of the boundary, and declared and enacted that—

“The whole water-course of the said River Murray from its source therein described to the eastern boundary of the colony of South Australia is and shall be within the territory of New South Wales. Provided nevertheless that it shall be lawful for the Legislatures and for the proper officers of customs of both the said colonies of New South Wales and Victoria to make regulations for the levying of customs duties on articles imported into the said two colonies respectively by way of the River Murray, and for the punishment of offenders against the customs laws of the said two colonies respectively committed on the said river, and for the regulation of the navigation of the said river by vessels belonging to the said two colonies respectively. Provided also that it shall be competent for the Legislatures of the said two colonies by laws passed in concurrence with each other to define in any different manner the boundary line of the said two colonies along the course of the River Murray and to alter the other provisions of this section.”

Under this section the whole watercourse of the Murray, so far as that river forms the boundary, is within the territory of New South Wales; and it has been contended on behalf of New South Wales that this grant carries with it the entire control of the river, except so far as concurrent jurisdiction is expressly given to Victoria. The jurisdiction as to customs duties and customs offences will become obsolete on the imposition of a uniform tariff, and need not be considered. The only remaining jurisdiction of Victoria, it would seem, is “to make regulations … for the regulation of the navigation of the said river by vessels belonging to Victoria.” This power to regulate the navigation of the river by particular vessels is clearly a much more limited right than the power to regulate navigation generally; it appears to mean the licensing and general control of the vessels themselves, and not to extend to physical control of the river except as regards wharves or landing places on the Victorian side.

“Upon whatever ground property in the entirety of a stream or lake is established, it would seem in all cases to carry with it a right to the opposite bank as accessory to the use of the stream.” (Hall, Internat. Law, § 38.) A water-course consists of the bed, the two banks, and the water; the bank being the uttermost part of the bed in which the river naturally flows. (Angell on Water-courses; Conv. Deb., Melb., p. 440.) The whole water-course being within the territory of New South Wales, it would seem that that colony had—subject to the Victorian right to regulate the navigation by Victorian vessels—the same control over its waters as over the waters of a river flowing through the colony.

In respect of boundary streams, to which the title of both colonies depends on an Imperial grant, it may be that, notwithstanding the absence of an inter-colonial riparian law, there may be mutual rights to the appropriation of the water, which may be the subject of adjudication in a court. See Stillman v. White Rock Manuf. Co., 3 Wood. and M. 538 (cited Rorer, Inter-State Law, p. 446) an interesting case decided in a Circuit Court of the United States. The parties owned mills on opposite sides of the River Pawcatuck, the centre of which is the boundary line between Connecticut and Rhode Island. Both were supplied with water-power from the river, and one of them, by a canal, diverted more than one undivided half of the water. Notwithstanding that the two mills were situated in different States, and in different circuits, it was held that an injury was committed for which an injunction could be had in the Circuit Court which had jurisdiction on the side on which the canal was cut. The decision was based on the principle that each party, as against the other, had a corporeal easement or right to an undivided half of the water of the whole stream, or a tenancy in common therein; and that there was therefore a remedy both for the direct injury to the easement and to the consequential injury to the lands adjoining. This, of course, is altogether different

  ― 890 ―
to the proposition that the common law right to an undiminished flow has any inter-state application. If good law, the case might possibly be applicable to a boundary stream, such as the MacIntyre, between two colonies.

RIGHTS AFTER FEDERATION.—The establishment of the Commonwealth, though it confers on the Federal Parliament new, and to some extent dominant, legislative powers, does not, in the absence of federal legislation, greatly alter pre-existing rights. There are indeed the provisions that the citizens of other States must not be discriminated against (sec. 117), and that after uniform duties trade must be free; but it seems quite clear that each State retains its own riparian law, and that no inter-state riparian law arises, nor—except as to navigation—can arise. The Federal Parliament has power to legislate as to inter-state navigation, and it may incidentally—subject to the restriction as to reasonable use—control the waters for that purpose; but it has no power to dispose of the water for any other purpose, such as irrigation or conservation. Nor can there be any Federal common law regulating such appropriation; for that would lead to the absurdity that there was a part of the common law which could not be altered either by the Federal Parliament or by the State Parliament. There can be no federal common law on matters outside the legislative power of the Federal Parliament; so that after federation—as before—the claim to an undiminished flow, as between States or citizens of different States, would seem still to fall on the ground that there is no law applicable to the case.