Legal Basis for Indigenous Water Access

Poh-Ling Tan from the Water Planning Tools project delivered a presentation to the National Indigenous Water Forum on the 19th February, based on her recent

review of the legal basis for Indigenous access to water

. The presentation addressed the concern that the provisions in the National Water Initiative that deal with Indigenous interests in water are limited merely to native title rights, and therefore do not confer any benefits other than that already previously provided by native title legislation.

Poh-Ling's presentation noted that native title claims are subject to significant hurdles relating to evidence as well as time and cost barriers. The development of native title has been severely criticised for being inequitable, over-particularised, and inconsistent with the direction taken in other countries. Given that situation, Indigenous access to water should not be made wholly co-extensive with native title.

This particularly applies to south eastern Australia where there what is described as a narrow ‘recognition space’. The presentation also recognised that jurisdictions have adopted an uneven approach under the National Water Initiatives to Indigenous interests in water. Of the seven jurisdictions analysed in her review, four do not refer to Indigenous requirements in the statement of objectives in water legislation.

There are important lessons to be gleaned from the study of legal and policy provisions in each jurisdiction, and some models for 'best practice’ features can be derived from each jurisdiction:

Statement of Objectives: NSW’s legislation includes an objective to ‘foster benefits to Indigenous people in relation to their spiritual, social, customary and economic use of land and water’.
Indigenous participation in water consultative committees: It is suggested that Queensland’s provision which requires representatives of cultural, economic and environmental interests on such committees be adopted as it allows for representation where Indigenous communities are present.
Comprehensive policy guidelines and protocols on Indigenous engagement: Guidelines, strategies and protocols exist in NSW, SA, Victoria and WA. A practical handbook on Indigenous engagement in NRM written for use by SA agencies is a valuable resource. By and of themselves, strategies and policies do not translate into actual provision of water in plans. The great majority of water plans do not provide allocations of water for Indigenous interests.
Special measures taken to engage Indigenous people in water planning: Cultural heritage assessments are undertaken in WA and to a far lesser extent in Queensland. In other parts of Australia, for example Victoria, special compacts have been made to allow co-management of national parks to care for important sites such as the Barmah red gum forest.
Special mechanisms to allocate water for Indigenous needs: Two states have special mechanisms allowing for access to water. In NSW special licences allow commercial and cultural use, and a Water Trust has been set up to fund purchases of water for specific uses. Queensland has set aside Indigenous water reserves in Cape York Peninsula for the achievement of economic and social aspirations of Indigenous people.

Poh-Ling concluded by noting that the implementation of the NWI requires the support of all Australian communities. In order to fulfil Australia's international and domestic legal responsibilities, and to successfully implement the NWI, the interests and rights of Indigenous communities need to be more effectively incorporated in water planning.

Download the review

here.