The Limitations of Indigenous water rights in the Proposed Murray Darling Basin Plan

By Liz Macpherson
Rainsdrops hanging on leaf

By Liz Macpherson. This article is part of our August theme, which focuses on the environment and human rights. Read more articles on this theme.

In August 2012 the Murray Darling Basin Authority released a third altered draft of its Proposed Basin Plan (Basin Plan). The Basin Plan was prepared by the Authority under the Water Act 2007 (Cth) as part of an attempt to coordinate an approach to the particular challenges of Basin water management, including environmental degradation and resource over-allocation across the Murray Darling Basin States (Queensland, South Australia, NSW and Victoria).

The plan sets a sustainable diversion limit which caps the overall quantity of water that may be taken from the Basin and it also sets out binding requirements for water resource plans (WSPs). WSPs, implemented under various state water laws, define allowable water diversion levels, set out the arrangements for sharing the water available for consumptive use among competing users, and establish rules to deal with environmental objectives. State Basin Ministers are providing final comments to the Commonwealth Minister on the Basin Plan during August, after which time he may request further changes or approve the plan and present it to parliament.

…governments have not been quick to enact legislation and create policies that allocate water use rights to Indigenous people.

The Basin Plan begins with an acknowledgement of the cultural, social, environmental, spiritual and economic connection Traditional Owners and their Nations in the Murray Darling Basin have to their lands and waters. It also records that 70,000 Indigenous people and more than 40 Indigenous nations across the Basin use its water resources for cultural, social, environmental, spiritual and economic purposes; Indigenous economic interests being trading, hunting, gathering food and other items for use that alleviate the need to purchase similar items and the use of water to support businesses in industries such as pastoralism and horticulture.

…it was not until 2004 that Australian water policy made mention of Indigenous water uses.

While the breadth of Indigenous water use in the Murray Darling Basin is acknowledged in the Basin Plan, the substantive provisions setting out the Indigenous values and uses to be provided for in WSPs are much more limited. Clause 9.52 of the Basin Plan provides that a WSP must identify the objectives of Indigenous people in relation to water resource management and the outcomes for water resource management desired by Indigenous people, while at the same time determining that Indigenous water values and uses are merely “social, spiritual and cultural”.  Regardless of what Indigenous people themselves may currently or prospectively desire, and seemingly at odds with the recorded Indigenous water uses in the Basin, the Basin Plan does not require (and arguably removes the potential for) WSPs to facilitate Indigenous economic or commercial uses in the Murray Darling Basin.

This obvious limitation is despite the fact that clause 9.54 of the Basin Plan requires WSPs to be prepared with regard to the views of Indigenous people with respect to “cultural flows”. The Murray Lower Darling Rivers Indigenous Nations and Northern Murray–Darling Basin Aboriginal Nations agreed definition of cultural flows covers:

Water entitlements that are legally and beneficially owned by the Indigenous Nations and are of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations. This is our inherent right.

Indigenous groups from other parts of Australia have been explicit about their claims for water use rights to satisfy social, cultural, ecological and economic needs.

The Basin Plan also appears to assume that Indigenous water uses will be non-consumptive.  Clause 9.53 sets out a number of matters which Indigenous people should be consulted on by state water resource planners. These include native title water rights and cultural heritage as well as “risks to Indigenous values and Indigenous uses arising from the use and management of the water resources of the water resource plan area”. The wording of this clause suggests that Indigenous water uses are not themselves a case of “use and management”, but rather in-stream or conservation interests that may be affected by the consumptive water use of others.

Recognition of exclusive water ownership rights, or water rights that support cultural and economic water use, is not contemplated.

The assumption that Indigenous water uses are inherently non-economic and non-consumptive is supported by the Water Act’s characterisation of Indigenous issues in the context of the Basin Plan as “social, cultural, indigenous and other public benefit issues” as opposed to the “consumptive and other economic uses of Basin water resources” (s 21(4)).  This casting of Indigenous water rights as non-economic and non-consumptive is more widespread; it is a symptom of the current limited status of Indigenous water rights in Australian water law and policy and native title law and legislation generally.

Australian law and policy, in its current state, provides very little scope for allocation of water use rights to Indigenous people. Despite the door being opened for native title rights to water in 1992 with the Mabo decision, it was not until 2004 that Australian water policy made mention of Indigenous water uses. Under the national water planning framework (the 2004 Intergovernmental Agreement on a National Water Initiative (NWI)) Australian States agreed to provide Indigenous access to water resources under state water legislation through planning processes that ensure Indigenous representation in water planning where possible and incorporate Indigenous social, spiritual and customary objectives in WSPs. They also agreed to take account of the possible existence of native title rights to water in water planning processes, although only water allocated to native title holders for traditional cultural purposes are to be accounted for.

The limited conception of Indigenous water use rights in the NWI reflects the limited nature of native title rights with respect to water. The Australian Human Rights Commission’s Native Title Report 2008 acknowledges that “the status of Indigenous water rights, particularly native title water rights, remains unresolved and limits Indigenous people’s access and allocation to water resources”.  Native title rights to water are difficult to establish (with the onus of proving native title resting on the claimant), and are limited in their content. In order to establish a native title right to water a claimant must describe in detail the traditional laws and customs establishing their water rights and prove the substantial maintenance of the connection of those traditional laws and customs to the particular water.

Indigenous people have been maginalised from their economic resource base and have a right to be included in the economic benefits derived from water resource management.

Even if a native title right to water can be established, the content of the right recognised by native title is frozen to a standard determined under pre-sovereignty traditional laws and customs, usually non-exclusive usufructury rights for non-economic personal, domestic, social, cultural, religious or spiritual uses. Recognition of exclusive water ownership rights, or water rights that support cultural and economic water use, is not contemplated. The assumption that native title holders are only entitled to in-stream rights of a traditional cultural nature is also reflected in section 211 of the Native Title Act 1993 (Cth) (NTA) which preserves the right of native title holders to fish, hunt or engage in traditional cultural activities with respect to water, which are non-consumptive uses that are “as of right”, meaning they do not require a water use right.

Where native title rights to water can be established, they may be extinguished or suspended to the extent they are inconsistent with acts validated under the future acts provisions of the NTA, leaving only limited procedural rights. In particular, under sections 24HA and 44H, state water resources legislation and water use rights granted under it prevail over native title rights which are suspended to the extent of any inconsistency with compensation payable. Section 24HA, therefore, also reinforces the restriction of native title rights to in-stream traditional cultural uses which will not be inconsistent with consumptive water use rights held by other water users.

…there is a real risk that there may simply be no water left to allocate water use rights to Indigenous people and groups in the future.

Because of the emphasis in the NWI on state water legislation and policy reflecting only the social, spiritual and customary Indigenous uses of water, together with the limited and uncertain nature of native title rights to water, governments have not been quick to enact legislation and create policies that allocate water use rights to Indigenous people. It is rare to see WSPs that specifically address Indigenous water uses, on the assumption that environmental flows (or non-consumptive limits on extraction by other users) will serve as a “surrogate” mechanism to meet Indigenous social, cultural or spiritual requirements. In some situations, “as of right” domestic and stock water use entitlements are considered sufficient to address any consumptive Indigenous water use.  If the Basin Plan is finalised in its current form, the emphasis on Indigenous water use rights being only social, cultural and spiritual (and never economic or consumptive) will be encouraged to continue in the Murray Darling Basin in much the same way.

However, there are a number of situations in which Australian legislation does provide for Indigenous water use rights for consumptive economic purposes. Regulations made under the Water Management Act 2000 (NSW) provide for Aboriginal cultural, community development and commercial access licenses without needing to first establish native title. Although, possibly as a reflection of the lack of water available for allocation to consumptive uses within the Murray Darling Basin, commercial access licenses apply only in coastal regions, and no commercial licenses have been allocated to date. Section 27 of the Cape York Peninsula Heritage Act 2007 (Qld) requires water reserves to be established in wild river declared areas or WSPs in Cape York for the purpose of helping Indigenous communities to achieve economic and social aspirations.  Indigenous water reserves for commercial and cultural Indigenous water use have also been included in Northern Australian WSPs although these policy innovations do not have corresponding legislative requirements. Even so, Indigenous-specific water allocations are estimated at less than 0.01 per cent of current Australian water diversions, according to the forthcoming article “Trends in the recognition of Indigenous water needs in Australian water reform” by Sue Jackson and Marcia Langton.

A range of Indigenous water rights commentators, in particular Sue Jackson, Jon Altman, Marcia Langton, Lee Godden and Mahala Gunther, have been actively critical of the restriction of Indigenous water use rights in water planning frameworks (and specifically via native title) at the expense of consumptive, economic interests (as well as the exclusion of Indigenous groups from environmental planning processes). Sue Jackson and Marcia Langton point out that Indigenous people have a large stake in water resource management due to their customary relationships with water, substantial and growing land base (at least in northern Australia), and economic disadvantage. In relation to the Murray Darling Basin, Monica Morgan, Lisa Stelein and Jessica Weir claim that Indigenous people have been maginalised from their economic resource base and have a right to be included in the economic benefits derived from water resource management.  They specifically call for the allocation of water use rights that enable inclusion of Indigenous people in the water trading environment for economic development opportunities or for achieving cultural and environmental objectives (aside from co-management rights, environmental and cultural flows).

Even considering the limited nature of Indigenous water use rights encouraged by the NWI, the National Water Commission noted in its 2011 review on implementation that the full intent of state commitments on Indigenous interests in water has not yet been achieved. Many WSPs do not consider Indigenous cultural values and economic development, leaving the cultural and economic expectations of Indigenous Australians as an unmet demand on the water system.  WSPs that do mention Indigenous water use refer often to native title as if there is only one basis for Indigenous water rights at law. These documents ignore the potential for alternative legal mechanisms to provide broader scope for allocation of Indigenous water use rights. But the limitations built into the doctrine of native title should not be the only benchmark for the engagement of water law and policy with Indigenous people. The Human Rights Commission in its Native Title Report 2008 encouraged Australian governments and Indigenous people to take advantage of current revisions of legislation dealing with water, the environment, native title, cultural heritage and climate change to include provisions that provide for, and protect, Indigenous access to water, including for economic and sustainable development.

…the restriction of Indigenous water use rights to in-stream cultural interests is increasingly considered nonsensical and outdated.

Legislative and policy change to facilitate Indigenous water use rights for a broader range of purposes (including consumptive economic water use rights) is not only in line with the claims of Indigenous Australians; such change is supported by recognition of indigenous rights to water at International law, and has precedent in other jurisdictions. Indigenous economic rights to water are recognised in the United States, Canada and New Zealand. Chile’s Indigenous Law 1993 includes recognition of the ancestral and consumptive water rights of certain indigenous communities in Chile’s arid north, and facilitates their allocation as water use rights under water legislation. Even in Australia, tentative positive steps have been made in NSW and Northern Australia towards supporting economic Indigenous water use, but there is much work yet to be done. As water resources approach full allocation, unless a share of water use rights is set aside for Indigenous water uses (under native title or otherwise), there is a real risk that there may simply be no water left to allocate water use rights to Indigenous people and groups in the future.  In the words of the Human Rights Commission (p 171):

…as Australia becomes increasingly scarce of water due to climate change, long periods of drought, over-allocation to industry and agricultural stakeholders, and population growth and migration, the capacity for the recognition and security of Indigenous rights to water will become increasingly important and highly competitive.

While there are a number of positive aspects of the Basin Plan, including Indigenous involvement and consultation in its preparation and improvements to the environmental conditions of Basin resources (a matter viewed positively by Indigenous people generally), it shows that Australia is yet to fully embrace Indigenous claims for water use rights to satisfy social, cultural, ecological and economic needs. In particular, the Basin Plan continues the overwhelming assumption in Australian water law and policy, and native title legislation and jurisprudence, that Indigenous water uses are merely social, spiritual and cultural and, specifically, non-consumptive and non-commercial. This is despite the fact that a range of Indigenous groups, government bodies, academics and domestic and international human rights organisations continue to lobby for broader Indigenous water use rights, including for consumptive economic purposes. It is also despite the fact that the Basin Plan itself acknowledges the important economic uses Indigenous people make of water resources in the Murray Darling Basin.

Decisions about water sharing within the Murray Darling Basin are not easy, and consumptive economic water use rights for Indigenous people in the context of full resource allocation might be seen by some as a threat to the consumptive water use of other users. Yet the restriction of Indigenous water use rights to in-stream cultural interests is increasingly considered nonsensical and outdated. If the Basin Plan is finalised as currently drafted, it is destined to become yet another missed opportunity to provide a meaningful allocation of water use rights to Indigenous people.

Liz Macpherson is researching a PhD at the Melbourne Law School’s Centre for Resources, Energy and Environmental Law on Indigenous water rights in the context of Chilean and Australian water markets, and is a recipient of the University of Melbourne Human Rights Scholarship. She is a practicing lawyer specialising in Indigenous land and resource rights and environmental law. Her experience includes representing Maori iwi and hapu in their claims before New Zealand’s Waitangi Tribunal, and she is currently Principal Lawyer, Aboriginal Affairs with the Victorian State Government. All opinions are her own.

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  • virginia marshall

    Hi

    just cited the article and in my completed PhD thesis covered many of these issues and more in law. As an Indigenous lawyer I have researched water extensively and the problems remain the same.

  • virginia marshall

    See Triple BL Legal for further information