Earlier this year our Real Estate and Projects team provided a comprehensive overview of the establishment of the register of foreign ownership of water entitlements (Water Register).

Since that time:

  • the ‘stocktake period’ (being the period between 1 July 2017 and 30 November 2017 and which is intended to provide a baseline against which changing levels of ownership of water entitlements can be assessed) has commenced. As a result, if you’re a foreign person who will hold, or who holds, certain water entitlements or contractual water rights as at 30 November 2017 you will need to notify the Commissioner of Taxation during the period starting on 1 July 2017 and ending on the later of 30 November 2017 and the 30th day after you start to hold that entitlement or right. The relevant form is available on the ATO website; and
  • the Register of Foreign Ownership of Water or Agricultural Land Rules 2017 (Cth) (Rules) have come into effect.

The Rules are relevant in the context of the Water Register in that they:

  • provide an exemption from the requirement to give information about foreign holdings of water entitlements under Part 3B of the Register of Foreign Ownership of Water or Agricultural Land Act 2015 (Cth)) (Act):
    • if the foreign person started to hold the registrable water entitlement or certain contractual water rights because of enforcement of a security held solely for the purposes of a ‘moneylending agreement’ (as that term is defined in the Foreign Takeovers and Acquisitions Act 1975 (Cth) (FATA)) and the foreign person is either the person (first person) who entered into the moneylending agreement or a subsidiary or holding entity of the first person. The terms ‘subsidiary’ and ‘holding entity’ have the same meaning as in the FATA; or
    • to a foreign person at a particular time if, at that time, the conditions in subsection 41A(2) of the Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (which relates to foreign persons in which foreign custodian corporations have interests) are met in relation to the foreign person; and
  • specify that a ‘registrable water entitlement’ as defined in section 5A of the Act does not include:
    • a right, conferred by or under a law of a State or Territory, to capture, store or take rainfall for stock and domestic purposes;
    • a right held by an irrigation infrastructure operator to the extent that another person has an irrigation right in relation to water that may be held or taken from a water resource by the irrigation infrastructure operator. The terms ‘irrigation infrastructure operator’ and ‘irrigation right’ have the same meaning as in the Water Act 2007 (Cth); or
    • a right held by an irrigation infrastructure operator to the extent that it is conveyance water. The term ‘conveyance water’ is defined to mean the additional water that is required to deliver water to water users, including water lost in transit from its source to end users due to seepage, leakage, evaporation or other similar effects.

To date, no contractual water rights have been specified in the Rules.