Up the creek: What is wrong with the definition of a river in New South Wales?

摘要

The legal definition of a river or stream has been largely determined from a European perspective of what a river "should look like". In New South Wales, the definition of a river or watercourse is codified in a range of legislative instruments. In most cases, the Rivers and Foreshores Improvement Act 1948 (NSW) and the partially implemented Water Management Act 2000 (NSW) provide the basis for legal decision-making. The Rivers and Foreshores Improvement Act 1948 implies that a bona fide river should have perennial and intermittent flow. However, it is well known that the Australian landscape is characterised by river systems that occupy the full range of discharge patterns from perennial to intermittent through to ephemeral. Thus, the Rivers and Foreshores Improvement Act 1948 defines a river in manner that is quite uncharacteristic for many smaller watercourses in New South Wales, as these are frequently ephemeral. Consequently, the difference between the legal definition and the true physical form of a "watercourse" has created numerous disputes that have had to be settled by the courts. This article discusses the legal definition of river, and a range of geomorphological descriptions and perceptions of what a river is. To highlight the differences between legal and geomorphological definitions, we discuss a recent legal dispute that arose with respect to the definition of a watercourse at Lumley Park Farm, Bungonia, New South Wales along with the Farm Dams Policy 1999 (NSW), which was relevant to the case.