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Overturning ‘aqua nullius’: the change needed to secure Indigenous water rights

In its landmark 1992 Mabo decision, the High Court ruled that the concept of terra nullius – land belonging to no one – should never have been applied to Australia. But nearly three decades on, the idea of ‘aqua nullius’ still needs to be overcome.

“Indigenous Australians were heartened by the High Court’s Mabo decision,” lawyer and Wiradjiri Nyemba woman Dr Virginia Marshall said.

“It was a just outcome and a remedy to the fiction that had been perpetuated – that rights to land, waters and resources were extinguished.”

The Mabo decision led to the Native Title Act (1993), which recognises that Aboriginal and Torres Strait Islander people have rights and interests to land and waters according to traditional laws and customs. This includes access to land for living; traditional purposes; hunting, fishing and gathering food or traditional resources; and/or to teach laws and customs on the land. 

Native title decisions have seen many Aboriginal communities regain control of their land, but control of water has been more difficult to achieve. Despite 33% of Australia’s landmass being under some form of native title, the Indigenous share of the national economy is just 1.3% and Indigenous Australians control less than 0.1% of Australia’s water resources.

Recent reform

In 2004, Australia’s state and federal governments agreed to the National Water Initiative (NWI), committing to use water more efficiently, better service rural and urban communities, and ensure the health of river and groundwater systems. It was also the first time Indigenous water rights were explicitly recognised in national water policy.

The NWI stated that processes would ensure the “inclusion of Indigenous representation in water planning wherever possible” and that water plans would “incorporate Indigenous social, spiritual and customary objectives and strategies for achieving these objectives wherever they can be developed”.

However, the National Water Commission (NWC)’s assessment of the NWI in 2014 found states and territories had “generally failed to incorporate effective strategies for achieving Indigenous objectives in water planning arrangements”.

While recognition of Indigenous cultural values and associated water requirements had progressed, the NWC found practical change was slow, “with most jurisdictions as yet not making specific provision for water access for Indigenous people”.

Overturning aqua nullius

Marshall is currently the Inaugural Indigenous Postdoctoral Fellow at the Australian National University’s School of Regulation and Global Governance and the Fenner School of Environment and Society, where she is focusing on developing a culturally appropriate Indigenous water rights framework.

She said Indigenous people had been disenfranchised by water reforms such as the NWI.

“The national treatment of Indigenous peoples of Australia in relation to water resources has been well documented, and reports by the NWC highlight the lack of progress or goodwill to uniformly address water requirements for Indigenous communities for cultural, economic or commercial purposes,” Marshall said.

In her book Overturning Aqua Nullius: Securing Aboriginal water rights, which was based on her doctoral thesis, Marshall argues a doctrine of aqua nullius continues to deny Aboriginal people their economic and cultural rights and interests to water.

“When I began my PhD in 2005, there was a lot of media focus on the drought … and its effect upon townships and rural landholders, but it was very apparent that Aboriginal communities’ water needs were being overlooked and going unreported,” she said.

“During my research it became clear that Australia has failed to deliver water policy and regulation to provide legal certainty for Indigenous communities.”

Instead, national water reform typically focused on giving certainty to other stakeholders such as industry, pastoralists, farmers and irrigators.

“Indigenous Australians have been written out of regimes like the NWI by vested interests and governments when it comes to access and management of water, water allocation, entitlements and trading,” Marshall said.

Paradigm shift

In order to redress the injustice of aqua nullius, Marshall argued Aboriginal water rights should be prioritised above the rights and interests of other groups.

“Securing Aboriginal water rights is an imperative,” she said.

“It is absolutely vital to addressing Aboriginal disadvantage. It is a vital step towards closing the disgraceful gap in Aboriginal health and wealth status.”

Drawing on the United Nations Declaration on the Rights of Indigenous Peoples, Marshall said a paradigm shift is needed, moving away from current water policy to a ‘reserved water right’ for Indigenous Australians that is allocated before other water rights.

“For Aboriginal people, the land and water are one, and both are intertwined with Aboriginal laws and culture. This is the essence of Aboriginality,’ she said.

“The right to water must be recognised as a standalone human right in international and domestic law.”

Marshall also suggested the creation of an Aboriginal Water Holder, similar to the Commonwealth Environmental Water Holder, with the capacity to trade Aboriginal water holdings on the open market and to buy and sell water between Aboriginal water holders and the broader community.

She said water rights should be recognised as property rights to enable Aboriginal people to use their communal and private water rights to create economic opportunities.

“Aboriginal peoples’ social, cultural and economic certainty rests on the right to control and manage customary water,” she said.

“There must be a paradigm shift from the current water policy and law as a matter of urgency, because Indigenous peoples have been marginalised from participating in water trading and developing economic livelihoods in water.”

Ultimately, Marshall said something must be done to address the inequalities faced by Indigenous Australians when it comes to access to water.

“A federal inquiry into Australia’s water resources – including Indigenous peoples’ water issues – would provide a pathway for truth and reconciliation,” she said.

“Indigenous Australians are the First Australians, and there is an urgency that legal certainty for cultural, economic and commercial water requirements is provided for.”