When is a river not a river?

Is a river still a river when there's no water in it? That’s the question being asked by two Macquarie academics who believe an inaccurate definition of what constitutes a river within New South Wales legislation is not only causing confusion and cost within the courts, but is also leading to further degradation of our environment.

Geomorphologist Dr Mark Taylor, a Senior Lecturer in the Department of Physical Geography, has teamed up with environmental lawyer Rob Stokes, a Lecturer in the Department of Business Law, on two journal articles published recently. From both an environmental and legal perspective, they examine how the letter of the law affects how we protect, or fail to protect, our river systems.

As we know, the Australian environment is one of extremes, meaning the form, flow patterns and structure of our river systems fluctuate dramatically. Many rivers are dried-up channels during the drier seasons, but can quickly turn into a raging torrent.

This diversity is not reflected in NSW law, where bona fide rivers should have 'perennial and intermittent flow'. Consequently, the protective measures of various Acts don't apply to many lower order river systems in NSW.

This situation, Rob explains, is a legacy of our colonial past.

"The moment that settlement was declared all law that applied in England consequently applied in Australia as well," he says. "So everything governing our natural resources was governed from an English perspective, with common law suggesting that rivers and watercourses consisted of a bed and banks with a flow.”

Mark says he’s surprised the definition hasn't been changed. "Ephemeral rivers include the Todd River and the Finke River, major rivers that flow in central Australia. I suspect they're afraid that if they change the law it would open a whole can of worms in regard to the very small creeks and gullies on the eastern seaboard where we are currently carrying out most of our land development to accommodate the growing population."

Mark says the obvious solution to the problem is to broaden the types of watercourses protected by the legislation.

"I think the law should incorporate not only ephemeral rivers, but should also include channels which don't always have water flowing in them because they form part of the natural drainage basin."