This article is the first in a series of pieces being jointly published in partnership with the Global Water Forum.
In 2007, the United Declaration on the Rights of Indigenous Peoples (UNDRIP)[i] set the bar for the recognition of Indigenous water rights internationally. However, these rights are not necessarily supported by water governance frameworks. This situation can lead to contested claims, conflict and reduced water security. In this article, Katherine Taylor explores the Australian example to consider some issues, challenges, and opportunities associated with the recognition of Indigenous water rights within the national water governance framework.
Indigenous water rights and the UNDRIP
In fresh water management, the term ‘water rights’ can refer to the legal authority to take water. For example, a licence to take a volume of water from a stream.
In contrast, Indigenous water rights are broader and can be thought of as a ‘web of interests’[ii]. Under the UNDRIP, Indigenous peoples have the inherent rights to self-determination and the right to maintain a spiritual relationship with their waters (and lands). Indigenous peoples have the right to own, use, develop and control their waters.
Indigenous water rights in Australia
When Australia was colonised, extensive water and land rights were granted to colonisers, and First People were routinely excluded from accessing water.[iii] In the present day, the ‘blueprint’ for water reform, the National Water Initiative[iv] includes some provisions for First Peoples. However, the provisions are relatively weak[v] and largely preclude economic rights[vi]. Despite decades of Australian economic water reforms, First Peoples are figuratively locked out of the water market (notably, the water stressed and highly traded Murray Darling Basin as well as in other regions), and can also be literally locked out of accessing water places due to dispossession.
Australian First Peoples’ water policies
First Peoples’ expectations in relation to water are articulated in numerous statements, declarations, and policy documents about water in Australia. A recent review in the Australasian Journal of Water Resources highlighted several key concepts and common themes.[vii]
The analysis showed that First Peoples’ expectations reframe and often reject many of the underlying assumptions of government water governance frameworks. The ‘fundamental principle that water, land and Indigenous people are intrinsically entwined’ [viii] was commonly expressed. Relationships to living waters underpinned much of the policy. This contrasts with the approach commonly taken by existing Australian government water governance frameworks.
The analysis showed that the sovereignty of First Peoples – although unrecognised in government water governance frameworks – is usually a central tenant of First Peoples’ water policy. Rights, responsibilities, and obligations to water are embedded in First Law (or ‘customary law’). Therefore, under First Law, managing water and making decisions about water is an inherent right of First Peoples.
Australia’s First Peoples’ Water Engagement Council (FPWEC) proposes the concept of ‘Aboriginal water’ to encompass a diversity of definitions and policy approaches:
‘Aboriginal Water does not fit neatly into the conceptual frameworks of ‘Western’ water resource management. It has a unified and internally coherent rationale, grounded in Aboriginal knowledge of the hydrological, ecological and spiritual interconnections embedded in the landscape and how these are inextricably connected to peoples ‘material and spiritual wellbeing’. [ix]
Another concept, ‘cultural flows’, has received significant support in the Murray-Darling Basin.[x] According to the Echuca Declaration, cultural flows are:
‘water entitlements that are legally and beneficially owned by the Indigenous Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations.’ [xi]
As an indication of the breadth of practical policy solutions that have been proposed, two strategies for accessing water for commercial purposes (as part of a cultural flow) are ‘Strategic Indigenous Reserves (SIR)s’ and an ‘Indigenous Economic Water Fund’[xii]. In addition, action has been taken towards establishing river management authorities based on cultural governance; for example, Fitzroy River traditional owners issued the 2016 ‘Fitzroy Declaration,’ [xiii] a set of guiding principles for a river governance body based on First Law. To date, these proposals have received limited government support.
Challenges and opportunities
Despite these policy developments and advocacy, laws, continue to ‘frustrate and exclude’[xiv] First Peoples. Jurisdictional approaches vary. The Northern Territory, for example, is considering including SIRs in water allocation plans[xv]. Across the border in Western Australia, government policy ignores SIRs. It has been suggested that Australian government responses to First Peoples’ water policy follows a ‘two steps forward, two steps back’ cycle[xvi].
The contested nature of the issue and inconsistency across jurisdictions creates uncertainty. First Peoples’ proprietary claims to water challenge the fundamental authority of the government as a water manager. This may impact on water security for both First Peoples’, and other’s, water interests.
However, opportunities also exist. Recognising First Peoples’ rights in Australia may result in a fundamental shift in how water is managed and governed[xvii]. A framework based on relationships to living waters, could, for example, emphasise our responsibilities to water, alongside access rights. This might lead to different outcomes, in comparison with frameworks based on utilitarian notions of water as a resource. First People’s water management skills and experience have been honed over millennia Incorporating these knowledges into governance frameworks has much to offer Australian water management. For example, Nyul Nyul’s wetland cleaning techniques[xviii] are being used together with ‘western’ management actions to enhance ecological outcomes on the Dampier Peninsula. A broader example is the use of Indigenous seasonal calendars to monitor and understand the impacts of climate change[xix].
In Australia, First People’s policy contributions to water governance have laid a path for respecting First Law and adhering to the UNDRIP. Our analysis showed that this path may help Australia resolve the ‘unfinished business’[xx] of water reform and increase water security. Although challenging to the status quo, First People’s water policy presents an exciting opportunity to reimagine the water governance frameworks of the world’s driest inhabited continent.
95% of all water trades in Australia by volume occur in the Murray Darling Basin https://www.mdba.gov.au/news/water-trading-basin
[i] United Nations General Assembly, “United Nations Declaration on the Rights of Indigenous Peoples” (United Nations, 2007), Available from: https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
[ii] Virginia Anne Marshall, “A Web of Aboriginal Water Rights: Examining the Competing Aboriginal Claim for Water Property Rights and Interests in Australia” (Macquarie University, 2014), http://www.researchonline.mq.edu.au/vital/access/services/Download/mq:35733/SOURCE1.
[iii] Ruth A. Morgan, Running out? Water in Western Australia (Crawley, W.A: UWA Publishing, 2015); Michael Cathcart, The Water Dreamers: The Remarkable History of Our Dry Continent (Melbourne, VIC: Text Publishing, 2010).
[iv] Council of Australian Governments, “Intergovernmental Agreement on a National Water Initiative between the Commonwealth of Australia and the Governments of New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and the Northern Territory” (Canberra, A.C.T.: Australian Government, 2004).
[v] Virginia Marshall, Overturning Aqua Nullius (Canberra, A.C.T.: Aboriginal Studies Press, 2017).
[vi] Nick Duff and Australian Institute of Aboriginal and Torres Strait Islander Studies, Fluid Mechanics: Practical Use of Native Title for Water Outcomes, 2017.
[vii] Katherine Selena Taylor, Bradley Moggridge, and Anne Poelina, “Australian Indigenous Water Policy and the Impacts of the Ever-Changing Political Cycle,” Australasian Journal of Water Resources 21, no. 1 (2017), Available from http://www.tandfonline.com/toc/twar20/current.
[viii] Delegates of the Mary River Water Forum, “Mary River Statement” (Darwin, N.T.: Northern Australian Indigenous Land and Sea Management Alliance, August 6, 2009), Available from: https://www.nailsma.org.au/sites/default/files/publications/Mary-River-Statement%20text%20only.pdf.
[ix] First People’s Water Engagement Council, “Advice to the National Water Commission” (Canberra, A.C.T.: National Water Commission, 2012), Available from: http://webarchive.nla.gov.au/gov/20160615062343/http://www.nwc.gov.au/organisation/partners/fpwec.
[xi] Murray and Lower Darling Rivers Indigenous Nations, “MLDRIN Echuca Declaration” (Murray Lower Darling Rivers Indigenous Nations, 2007), Available from: http://www.environment.sa.gov.au/files/sharedassets/public/corporate/about_us/aboriginal_partnerships/mldrin-echuca-declaration-2009.pdf.
[xii] First People’s Water Engagement Council, “Options Paper for the First Peoples’ Water Engagement Council (FPWEC): Options for an Indigenous Economic Water Fund (IEWF)” (Canberra, A.C.T.: First People’s Water Engagement Council, 2012).
[xiv] Marshall, “A Web of Aboriginal Water Rights.” Pg. 3
[xv] Department Environment and Natural Resources, “Strategic Indigenous Reserves Stakeholder Discussion Paper” (Darwin, N.T.: Northern Territory Department Environment and Natural Resources, February 2017).
[xvi] Taylor, Moggridge, and Poelina, “Australian Indigenous Water Policy and the Impacts of the Ever-Changing Political Cycle.”
[xvii] Marshall, Overturning Aqua Nullius.
[xviii] Rebecca J. Dobbs et al., “Collaborative Research Partnerships Inform Monitoring and Management of Aquatic Ecosystems by Indigenous Rangers,” Reviews in Fish Biology and Fisheries 26, no. 4 (December 2016): 711–25, doi:10.1007/s11160-015-9401-2.
[xix] CSIRO, “About the Indigenous Seasons Calendars,” accessed August 25, 2017, https://www.csiro.au/en/Research/Environment/Land-management/Indigenous/Indigenous-calendars/About-the-calendars.
[xx] Productivity Commission, “NWI Review Water Reform Issues,” 2017.
Katherine Taylor is a PhD candidate at the Australian National University. Prior to her post-graduate studies, Kat worked for non-government organisations in Central Australia and the Kimberley, on projects involving: drinking water risk management, on-country water research, water rights, water conservation and environmental education. Kat grew up in Perth, Western Australia and completed a Bachelor of Science in environmental science and Bachelor of Science in conservation biology at Murdoch University.