INDIGENOUS PEOPLES

1
INDIGENOUS PEOPLES LEGAL WATER FORUMA forum to
explore the rights of Indigenous peoples to be
involved in the governance of freshwater

• Indigenous Australians Property Rights to Water
  
• Lee Godden Melbourne Law School

2
Overview

• Trends impacting indigenous peoples rights to
  water
• Climate change economic restructuring
• Market Environmentalism and Water Governance
• Trends in water law and governance in Australia
• environmental flows/ tradeable water entitlements
• Strategies for Involvement rights-based and
  neo-liberal
• Water law regimes
• Native Title and Land Rights Legislation
• Consent determinations under Native Title Act
  1993
• Agreement-making

3
Broad trends affecting Indigenous Peoples
engagement on freshwater issues?

• Climate Change
• Physical and Social Impacts
• Economic and Legal restructuring
• Market environmentalism
• Ecosystem services culturally-based livelihoods
  underpinned by sustainable water use
• Global markets
• Water Governance
• How to meaningfully include indigenous cultural
  values and traditional knowledge in existing
  legal frameworks
• Water quality
• Legal framework - common law, statutory
  International

4
The significance of water to Indigenous people

• Indigenous people hold distinct cultural
  perspectives on water, relating to identity and
  attachment to place, environmental knowledge,
  resource security, and the exercise of custodial
  responsibilities to manage inter-related parts of
  customary estates, Langton 2002.
• See also growing attention to economic aspects
  of indigenous water use and access.

5
Water Law and Policy in Australia

• Vesting of water resources in Crown under statute
  
• (Main Water Acts are state government regimes but
  note federal structure and emergence of Water Act
  2007 Cth)
• Main frameworks for allocation of water are
  statutory (includes consumptive, environmental
  water and cultural licences - NSW)
• Common law (riparian rights are residual)
• Note statutory saving provisions for domestic and
  stock uses
• Many other areas impinge on water regulation eg
  planning law (EIA), heritage protection,
  environmental protection and brooder indigenous
  governance regimes.

6
Australian Water Law Reform

• 3 major aspects to water law reforms
• 1994 with CoAG reforms Continued through
  National Water Initiative 2004.
• Legal separation of land and water entitlements
• introduction of water share, use licences,
  delivery charges as part of unbundling
• Progressive articulation of legally enforceable
  environmental water reserves
• Market instruments property in water and trade.
• Structural change highest and best value use
• Regulation/ restrictions on trading for
  competition controls, environmental (and
  cultural?) reasons

7
Indigenous Interests recognised under National
Water Initiative

• Recognises special character Indigenous
  relationship with water.
• Agreement that water access entitlements and
  planning frameworks recognise indigenous needs.
• Indigenous access to be facilitated through
• Indigenous representation in water planning
• Incorporate indigenous values and strategies for
  implementation
• Take account of the possible existence of native
  title rights to water
• Potentially allocate water to native title
  holders
• Account for water allocated to native title
  holders for traditional purposes

8
Water Planning

• Water law reform driver for long-term sustainable
  water use
• Instruments vary across jurisdictions but
  principal instrument is a water plan (or water
  sharing plan)
• Central idea as implemented to various degrees
  in water legislation
• assess the state of water resource
• determine ecological base levels ie set cap
• then determine water allocations to various
  interests
• allow trade in water entitlements as limited
  new entitlements
• with varying capacity to modify or reallocate
  water allocations by governments

9
Water Act 2007 Cth

• Widespread and increasingly severe ecological
  crisis in MD Basin
• Inter-jurisdictional conflict and overlapping
  management upstream/ downstream problems
• Water trading occurring over some 20 years but
  did not address serious over-allocation
• Water Act seeks to address over-allocation by
  setting sustainable diversion limit (current cap
  acknowledged as at unsustainable levels).
• Water Planning central mechanism to achieve
  these objectives

10
Water Act Key Features

• Implement basin-wide plan by 2011
• Section 19 The Basin Plan will provide for
  limits on the quantity of water that may be taken
  from the Basin water resources as a whole and
  from the water resources of each water resource
  plan area.
• Indigenous Representation provided for under
  Water Act 2007.
• Acknowledged difficulties of effectively
  incorporating indigenous cultural values in NRM
  (water management) and building capacity.

11
Indigenous Rights to Water

• Cultural uses/ Cultural flows
• at discretion of Aboriginal group?
• Note typical view by authorities that cultural
  water is of a non-proprietary nature.
• Should indigenous interest be subsumed under
  environmental allocations?
• NWI some water allocations eg licences to
  Aboriginal groups under Water Management Act 2004
• Native title allocations?? Should these be
  allocated via water legislation such as Water Act
  2007?
• Engages broader question of the relationship
  water legislation and Native Title

12
Legal Models for Indigenous Rights to Water

• Potentially two major ways of conceptualising
  legal frameworks
• One through inclusion of indigenous interests
  within the statutory water law frameworks
• ie a cultural allocation of water within a
  scheme
• designate as a neo-liberal market approach
• Second look to existing rights-based regimes for
  land claim
• In Australia, two main areas are Native Title and
  Statutory land rights schemes eg Aboriginal Land
  Rights (Northern Territory) Act 1976.

13
Mabo Nature of native title

• Native title has its origin in and is given its
  content by the traditional laws acknowledged by
  and the traditional practices observed by the
  indigenous inhabitants of a territory. The nature
  and incidents of native title must be ascertained
  as a matter of fact by reference to those laws
  and customs. Mabo v Qld No 2 (1992) 175 CLR 1,
  60 Brennan J.
• Clear that common law recognises native title to
  water
• typically as a concomitant of land relationship.
• Arguably could have freestanding native title
  right to water.

14
Native Title Claims

• Determination of native title is made under the
  Native Title Act 1993 Cth
• A claimant must show that
• They hold native title as defined by s223 and
• The native title has not been extinguished.
• Of particular relevance is the Future Acts
  regime
• See Indigenous Land Use Agreements provisions
  under Future Acts
• See also s 24 HA regarding Future Acts and water

15
Section 211 Native Title Act 1993

• s 211 NTA preserves Aboriginal customary uses
  such as hunting, fishing and gathering general
  rights but clear it would take effect in relation
  to water.
• Yanner v Eaton - s211 as a Commonwealth law (s
  109 Constitution) takes priority over state
  regulatory regimes arguably would include water
  regulation.
• Issue as to what aspects of water regulation
  would be covered.

16
S 223 Native Title Act 1993 (Cth)

• The expression native title means - the communal,
  group or individual rights and interests of
  Aboriginal peoples or Torres Strait Islanders in
  relation to land or waters, where
• (a) the rights and interests are possessed under
  the traditional laws acknowledged, and the
  traditional customs observed, by the Aboriginal
  peoples or Torres Strait Islanders and
• ( b ) the Aboriginal peoples or Torres Strait
  Islanders, by those laws and customs, have a
  connection with the land or waters and
• (c) the rights and interests are recognised by
  the common law of Australia.

17
Native Title Claims Issues for Water Management

• Members of the Yorta-Yorta Aboriginal Community v
  Victoria (2002) 214 CLR 422.
• Need to establish ongoing connection to land and
  waters since pre-sovereign times. Stiff
  evidentiary burden to prove connection.
• What is the nature of rights if recognised?
• Bundle of rights formulation typically but not
  necessarily found to be non-exclusive and
  non-commercial.
• Comparisons with offshore Native Title?

18
Water Planning as a Future Act?

• S 24 HA Native Title Act 1993
• Part of Future Acts regime under the NTA-
• Applies to certain valid legislative acts of
  govt. or grants of leases and other settler
  rights relating to the management or
  regulation of water.
• Non-extinguishment principle s 24 HA (4)

19
Agreement-making

• ILUAS re Waters under NTA
• ILUAs are used by government and third parties to
  obtain permission to operate on land and water
  subject to native title.
• Co-management agreements eg Yorta-Yorta also
  Indigenous Protected Areas
• State-wide agreements, such as South Australia.
• 101 agreements on ATNS database identified as
  relating to water, marine, fishing or aquaculture
  in Australia.
• Rights to Water- The bulk of this category (34
  agreements) is made up by consent determinations
  under the Native Title Act (1993).

20
Statutory Land Rights

• Typically rights to water will form part of
  rights associated with the tenure conferred under
  statute.
• Aboriginal Land Rights (Northern Territory) Act
  1976 granted significant controls over access and
  use to Traditional Owners (grant of fee simple)
• Northern Territory of Australia v Arnhem Land
  Aboriginal Land Trust 2008 HCA 29
• Blue Mud Bay case
• Issue aboriginal land extending to offshore
  does it confer rights to exclude people fishing
  in inter-tidal zone.
• Court held Fisheries Act ( NT) does not confer
  a power to authorise persons to enter and take
  fish aquatic resources from areas of Aboriginal
  land (originally made under grant).

21
Gunditjmara Peoples Native Title Determination

• Lovett on behalf of the Gunditjmara People v
  State of Victoria 2007 FCA 474
• Process is part of Victorian land justice
  framework
• Decision of North J relating to the Mt Eccles
  National Park and associated areas such as Lake
  Condah.
• It was agreed that non-exclusive native title
  rights exist over 133,000 hectares of vacant
  crown land, national parks, reserves, rivers,
  creeks and sea north-west of Warrnambool
  Victoria.
• As a consequence, native title also has been
  extinguished over 7,600 hectares of the claim
  area.

22
Nature and Extent of Native Title Rights

• The native title rights and interests include
• (a) entering and remaining on the land and
  waters
• (b) camping on the land and waters landward of
  the high water mark of the sea
• (c) the use and enjoyment of the land and waters
• (d) right to take the resources of the land and
  waters and
• (e) right to protect places and areas of
  importance on the land and waters.
  (Determination, para 5)
• The Determination states that insofar as the
  native title rights and interests may provide a
  right to take water from waterways, that right is
  limited to domestic and ordinary use.
  (Determination, para 6)

23
Non Exclusive Rights to Water

• In light of the non-exclusive nature of
  Gunditjmara title, the native title rights and
  interests do not confer possession, occupation,
  use and enjoyment of the land and waters on the
  native title holders to the exclusion of all
  others. (Determination, para 8)
• There is no native title in the Native Title Area
  in or in relation to groundwater as defined in
  the Water Act 1989 (Vic). (Determination , para
  3)
• Native title co-exists with other interests but
  does not have priority (inconsistency of the
  incidents test) -(Determination , para 11)

24

• Typically indigenous rights to water are framed
  under western laws as of a usufructary character,
  rather than as holistic cultural and physical
  environments, or even as commercially viable
  extractive volumes.
• The dichotomy of difference which lies at the
  heart of colonialism and settler ideology has
  prevailed in Australia throughout the
  rights-based agenda and into the current
  narrative of neo-liberal models of economic
  development. It has with the use of the law,
  entrenched indigenous peoples continued
  marginalisation.