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What needs to change to secure Indigenous water rights?

While Australia's First Nations own 20% of the country's land, they control less than 0.1% of Australia's water resources. Joshua Hoey asks what needs to change to achieve Indigenous water rights.

The release of the South Australian Murray-Darling Basin Royal Commission report in January sparked a national uproar with findings of government negligence and unlawful actions in drawing up the plan. But in all the commotion, the Commission’s critique of a serious lack of Indigenous representation and control of water management was largely unheeded.

Among other issues, it found First Nations have been left out of consultation on some Water Resource Plans (WRP). But Murray Darling Basin Authority (MDBA) guidelines said there was no legal obligation to accommodate Aboriginal views, that they didn’t demand the action of other parties, and didn’t need to be included in WRPs.

The Royal Commission was diplomatic, stating that while such guidelines may have been an “administrative mistake” they were still “suggestive of discriminatory treatment.”

Where we’re at

But this lack of Indigenous representation and rights when it comes to water management isn’t limited to Australia’s largest river system; it’s across the board.

The National Water Initiative in 2004 formally recognised Indigenous interests in water. Yet despite this, the Productivity Commission's review of the NWI over a decade later in 2017 found that while there had been some progress towards consulting with First Nations about water plans, this hasn’t translated into including Aboriginal cultural values and outcomes in water plans.

“There’s some progress in relation to projects, funding, and support for First Nations to develop their capacity, particularly in Victoria, but there hasn’t been a lot of substantive improvement. We think there really is a need to improve the NWI," Murray Lower Darling River Indigenous Nations (MLDRIN) Executive Officer Will Mooney said.

MLDRIN is a coalition of 26 traditional owner groups from across the basin region, and its role is to represent and advance the rights of First Nation groups to manage water in the basin system.

Native Title

Native Title decisions have seen many Aboriginal communities regain control of their land. But despite Native Title also applying to water, Aboriginal control of water has been difficult to achieve because of the current system of already existing water licences.

“Native Title interests in water can only be what is termed non-exclusive. That means they are always held in conjunction with the rights of other users of that water,” University of Melbourne Law Professor Lee Godden said.

Native Title decisions have seen many Aboriginal communities regain control of their land, but control of water has been difficult to achieve.

Even more concerning is the reality that those Native Title rights can in effect be extinguished if water supply is compromised.

On the Lower Darling in New South Wales, the Barkindji Nation have a Native Title determination that recognises their right to fish, use water for ceremonial and domestic purposes, and to maintain their connection to important places.

In New South Wales, water sharing plans (WSP) are required to identify any water allocated for Native Title rights, yet the WSP for the Murray and Lower Darling doesn’t recognise the Barkindji Native Title and allocates zero water for Native Title Rights.

“Because the water sharing plan has zero allocation for Native Title rights, there is no protection for their interests in that system. They can’t fish or have ceremonies if there is no water in the Darling or if the river is so sick the fish are dying,” Mooney said.

In Victoria, the Wotjobaluk people face a similar situation. A Native Title determination recognises their right to fish in the Wimmera river and Lake Albacutya, but the lake is empty.

“Because of extraction in the system and because of climate change, the frequency of inundation is now down to around once in 50 years,” Mooney said.

Across Australia there are many examples where the current management of natural water is ruling out the Native Title holder’s ability to exercise their rights, which are recognised in law.

International obligations

Australia is a signatory to multiple international conventions that recognise the value of Indigenous knowledge for the sustainable management of water.

The Ramsar Convention and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) both recognise the value of Indigenous conservation knowledge, and call for signatories to consult and cooperate with Indigenous peoples.

UNDRIP in particular states that signatories must obtain “free and informed consent from Indigenous peoples before approving any project affecting their land or territories,” including water.

Australia’s own Environmental Protection and Biodiversity Conservation Act recognises “the role of Indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity.”

Yet the recent MDBA Royal Commission found that Australia is violating its obligations to Aboriginal people under these conventions.

“There’s a serious deficiency in the way that Australian policy and legislation recognises and gives force to Aboriginal people’s rights that are recognised at an international level,”  Mooney said.

“The report took the Australian government to task and said, ‘there’s actually a need for a stronger legal platform for the recognition of Aboriginal rights in water management.’”

Mooney and others are calling for Aboriginal water rights, as well as mandatory inclusion in consultation processes and representation in water management bodies to be enshrined and protected in legislation.

“We have seen governments by and large consulting, with some representative inclusion,” Godden said.

“But there are no clear steps at a broader level to move beyond what are at this stage representative models to more substantive Aboriginal participation and decision making.”

Indigenous knowledge

The importance of Indigenous knowledge in managing the world’s water systems is widely recognised.

“There is a body of cultural knowledge which is accumulated from tens of thousands of years of living alongside these waterways, understanding their dynamics, and understanding benchmarks in terms of what are healthy flows, what’s a healthy ecosystem,” Mooney said.

But Australia still struggles to incorporate Aboriginal knowledge when planning and managing water systems, according to Torres Strait Island Regional Council (TSIRC) Engagement and Corporate Affairs Manager Luke Ranga.

“We have ecosystems and cultures here in Australia that span thousands of years, yet often Indigenous representatives are not included in the conversation,” Ranga said.

Furthermore, experts in the field say traditional Aboriginal knowledge is devalued and deprioritised in the context of a Western, colonial, scientific framework. But Mooney said the crisis on the Darling is a red flag for change.

A dry Darling River at Tolarno Station in 2016. Jeremy Buckingham/Flickr. CC BY 2.0

“These issues highlight that now it’s time to give more credence to Indigenous knowledge as an input to water management,” he said.

Victoria’s Aboriginal Water Program, first announced in 2016, is one example of how Aboriginal communities can be part of water management and have self-determination.

“There’s a commitment at a higher level for Catchment Management Authorities, water corporations, and the Victorian environmental water holder to genuinely listen to and negotiate with First Nations around their water objectives,” Mooney said.

The program includes funding for a range of activities, including values mapping, capacity building, and funding for a network of Aboriginal Water Officers.

South Australia (SA) may not have the high level legislative recognition of Indigenous rights in the area, but many First Nations have contract law agreements with the State Government for joint management of water resources.

The Ngarrindjeri Regional Authority is one example on the Murray River where an agreement between the Ngarrindjeri and the SA Government established an integrative river basin management plan jointly managed by the Ngarrindjeri. The Authority won the 2015 Australian Riverprize for innovative and sustainable river basin management.

And, in the north, the TSIRC say they have seen success with sustainable fishing programs and the Indigenous Rangers program.

Sector action

“There is a need for water utilities working in places like Sydney and Melbourne to start to think about inclusion, participation,” Godden said.

With mining giants BHP and Rio Tinto now backing the Uluru Statement, which calls for a legislated Aboriginal voice in parliament, is it time for the water sector to throw its weight behind greater representation and a treaty with Aboriginal people?

“Yes, absolutely, there is a strong role that can be played by the water sector,” Godden said.

“The urban water sector is a glaring omission, where Native Title opportunities are less.”

And while there are many players involved in ensuring Indigenous water rights are realised in Australia, Mooney said it’s time for everyone worldwide to start meeting Indigenous communities halfway.

“Anywhere you go around the world there are Indigenous communities working in colonised spaces to both restore and protect rivers and have their rights recognised,” Mooney said. 

“Their success depends on the available resources of the political context they are working in.”

First published as 'Back to country' in Current magazine April 2019.