ANU COLLEGE OF MEDICINE, BIOLOGY AND ENVIRONMENT

The Fenner School of Environment and Society

Email: fennerschool@anu.edu.au

Assignment Cover Sheet

Student ID U 6 6 0 5 6 5 7

First Name Camila Paola Last Name Zarate Ospina

Convener /
Course Code ENVS3005 Sara Beavis
Tutor

Course name Water Management

Indigenous water
Assignment Title

Word Count 2000 Due Date 29th March

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 Australia and the recognition of indigenous water rights

Water is essential to life and vital for every human, animal and ecosystem. Having access to potable
water is a gateway to agriculture, recreation and a healthy environment. Since the colonial times,
indigenous communities on different continents have defended their right to have access to water, but
the recognition of these rights have been a long and challenging process that continue to this day.

In Australia, indigenous rights started being recognized in 1992, and today the debate around to what
degree indigenous water rights have been embedded in Australian policy is still valid. I argue that
indigenous water rights and cultural flows in Australia have not been effectively embedded in the
actual policy, because it does not take into account the aboriginal perspective and the understanding of
water, water rights and cultural flows, but instead it is completely centralized around a western
perception.

First, I will define indigenous water rights and cultural flows from an international and national,
considering western and aboriginal points of view. Second, I will provide an analysis on how they are
embedded in Australian water policy, and third, I will make some recommendations about what
barriers need to be overcome in order to make sure that they are embedded.

What is it to be protected?

The concept of ‘country’ is the main difference that the indigenous conception of water and western
civilizations have, being a whole for indigenous people, country gives an identity and precise
expressions of social relations and distinctions. Virginia Marshall, referring to Katin Glaskin in her
thesis, explains that “the ‘country’ is not external to them, they are instantiations of the country, which
is consequently inalienable to them”, (Marshall, 2014). In addition to that, she says that the
inclusiveness that water has in their conception of ‘country’ goes beyond the western perspective of
riparian rights to include all surface and groundwater (Marshall, 2014).

The understanding of water that indigenous peoples have, is not only the necessity for survival as any
other human beings, but the essential connection water has with their culture. Water is an element that
acts like a bridge between people, and integrates people’s culture with the landscapes, especially when
it comes to the inseparable relation between water and land, as part of ‘one integrated country’,
(Burdon, Drew, Stubbs, Webster, & Barber, 2015).

Contrary to that perspective, the concept of country for western civilizations has more to do with a
legal framework that marks where do freeholds and leasehold titles start and end, getting closer to
what we understand as ‘property’. Country, defined by an English dictionary (western perspective) is
“the territory or land of a nation”, while property is a “good or land considered as a possession”
(WordReference Dictionary).

During colonial times, one of the principal objectives of European colonizers was to take away the
culture, religion and customs of indigenous people, in order to control the territory. This phenomenon
occurred in Australia, the Americas, Africa and any other colonized continent. The mentioned
mindset, is the main reason why being aware of the understanding indigenous people have in relation
to their land has always been a challenge for nations around the world, not only in terms of water but
in general. In my opinion, part of a nation’s evolution, is to be aware of those understandings, and to
have the will to respect and protect them.

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Legal framework: what are the ‘indigenous water rights’ in Australia?

The recognition of indigenous rights in Australia did not start until 1992, when the Australian High
Court solved the Mabo vs Queensland case, defeating the previous mindset of Australia being a land
that belonged to no one (terra nullius) before the European colonization, and permitting the concept of
‘natives titles’ to be legitimized.

The Native title is the recognition by Australian law of the rights and interests to land and waters of
the Aboriginal and Torres Strait Islander people. Under the Native title, claimants can make an
application to the Federal Court to have their title recognised by Australian law. The native title was
the biggest step towards indigenous water rights recognition but it is still not enough whenever a
comparison is made between the Australian law and the international framework, that I will explain
shortly.

According to Piorier & Schartmueller (2012), Australia’s water management was fragmented
according to state boundaries instead of being part of a national approach, which did not take into
account the use of water by aboriginal people, since their territories do not have the same boundaries.
Later, by 2004, the National Water Initiative (NWI) became national policy and established that
indigenous people should have representation in water planning whenever possible, designing
mechanisms to integrate the aboriginal needs and perspectives (Department of Agriculture and Water
Resources, n. d.). The NWI established that the possible representation of indigenous people can have
in water management plans could be committees, employing indigenous water planner to ensure
meaningful consultation and investing in capacity building so indigenous people can develop skill to
work as water planners (Australian Government, 2017).

In relation to the international framework, the recognition started later, but it was more specific and
favourable to indigenous water rights. A regime is a group of rules, norms and basic principles that
are not strict or formal but “shared understandings of acceptable behaviour”, (O'Neill, 2009). In 2007,
the United Nations General Assembly approved the Declaration on the Rights of Indigenous Peoples
(UNDRIP), providing a framework/regime that set the conditions under indigenous people should live,
in terms of well-being, dignity and minimum standards for survival, (United Nations, s.f.).

There are some articles in the UNDRIP that should be consider when developing a national legal
framework related to indigenous water rights. The article 15 emphasizes that indigenous people have
the right to maintain their relationship with their traditionally owned land, territories, water and coastal
seas, and the article 26 stipulates that indigenous people have the right to control and develop their
lands, (United Nations Declaration on the Rights of Indigenous Peoples, 2007). A crucial point in this
declaration is the article 32, that says that indigenous people have the right to determine the
development or use of their territories and resources, which includes the utilization or exploitation of
minerals and water.

Is it important to say that by 2007, when the declaration was published, Australia voted against its
adaptation, and it was not until 2009 that the Australian government formally recognized the
declaration (Australian Human Rights Commission, n.d.), which shows that even when the Native title
was valid at the time, there was still a lack of political will in the recognition of the indigenous rights.

Besides the UNDRIP, Australia is part of other declarations and agreements such as the Convention on
Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) that tries
to include indigenous people participation in wetland management and capacity building, the Agenda
21 and the Rio Declaration.
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What is meant by cultural flows?

In order to include the Aboriginal perspective of water in Australian law, another concept as important
as ‘country’ is the concept of ‘cultural flows’. 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.”

In relation to the social and cultural aspect, cultural flows are necessary for the adequate development
of spiritual, ceremonial and also recreational activities. Such activities might include protecting,
hunting or killing animals, Making the protection of the ecosystem and the environment also
necessary. In terms of health and basic needs, cultural flows are also potable water and food sources.

Aboriginal people also clarify in various opportunities the difference between cultural flows and
environmental flows, being cultural flows more related to water needs as the ones mentioned before,
and environmental flows related to biodiversity and ecosystem conservation, (Marshall, 2014). To this
instance, in the Echuca Declaration indigenous people demand that water entitlements transferred to
indigenous people as cultural flows have to be equivalent with water entitlements gained by the
Commonwealth and States of Australia as environmental flows. In addition to that, they demand that
the water entitlements designated to be used for economic proposes have to be equivalent to the ones
designated for non-economic proposes.

Issues faced by the Australian law in recognising the aboriginal perspective

The Native title allows indigenous communities to conduct activities such as hunting and fishing,
besides ceremonial and domestic uses, but limits larger-scale extractions for commercial use. The
mentioned limitation is one of the main critics indigenous people have about the Native title, because
it represents an obstacle for the development of initiatives such as aquaculture and ecotourism
(Burdon, Drew, Stubbs, Webster, & Barber, 2015). As well as the Native title, the NWI does not
consider the potential economic development of indigenous people from the use and management of
water in their territories. In this specific situation it is possible to see how the indigenous and
international perspective of water management is not being contemplated.

Virginia Marshall argues in her publication Overturning Aqua Nullius (2017) that in order to include
the aboriginal perspective, the first step is to stop considering indigenous communities as minority
interest stakeholders instead of ‘first users’, which responds to the recognition of indigenous people
being on this land before the European colonization. In addition to that, she claims that the vision of
aboriginal people being stakeholders and not ‘first users’ have not changed since the colonial times,
when the concept of terra nullius was valid, and applicable to water rights as aqua nullius, which she
labels as a “repugnant historical water policy”.

In her doctoral thesis, Marshall explains why the aboriginal and western perspectives do not converge
in the same understanding, saying that the Australian territory and its people had to adapt according to
the European characteristics related to geography, weather and climate, and she evidences that for
aboriginal people there were between six and ten weather cycles across the continent, that had to adapt
to four, which gives an idea of the differences in water management that both cultures had and still
have.

In relation to the inclusion of aboriginal knowledge in the NWI, there are publications mentioned by
Marshall such as the Indigenous Interest and the National Water Initiative (2007), that pointed out the

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gaps in literature review that the NWI has, being more focused in the northern Australian territories
and making a generalisation of the indigenous perspective from there. Besides that, there are regions
such as Western Australia where it is not clear the method if implementation of the NWI, and I found
especially alarming the fact that water quality standards were not being controlled for the use and
consumption by indigenous communities, reporting high levels of heavy metals, due to being close to
a mining area.

Burdon et al. (2015) made a statement that summarises the current situation, when saying that water
management laws in Australia are “solely about people, or more technically, about the rights of
persons... Ecological and/or cultural perspectives concerning ‘flow’ do not feature in this discourse.
Rather, property is a key area of law that has facilitated and legitimated human mastery and conquest
over ecological systems.”

Australian legislation should be more flexible, and consider indigenous perspectives of water, trying to
be less centralized in a western styled law and more balanced between the two perspectives. The legal
frameworks and new paradigmas needed are the ones that recognize the concept of ‘country’ and
‘cultural flows’, at the same time that acknowledge the need to promote economic opportunities for
indigenous communities.

Sources
Australian Government. (2017). Departent of Agriculture and Water Resources. Retrieved March 26,
2018, from http://nailsma.org.au/sites/default/files/publications/Indig_interests_NWI07.pdf

Australian Human Rights Comission. (s.f.). Australian Human Rights Comission. Retrieved March 24,
2018, from https://www.humanrights.gov.au/declaration-rights-indigenous-peoples

Burdon, P., Drew, G., Stubbs, M., Webster, A., & Barber, M. (2015, February 2nd). Decolonising
Indigenous water 'rights' in Australia: flow difference and the limits of law. Settler Colonial
Studies, 5. doi:doi/pdf/10.1080/2201473X.2014.1000907

Department of Agriculture and Water Resources. (s.f.). Department of Agriculture and Water
Resources. Retrieved March 24, 2018, from
http://www.agriculture.gov.au/SiteCollectionDocuments/water/Intergovernmental-Agreement-
on-a-national-water-initiative.pdf

Marshall, V. A. (2014). A Web of Aboriginal Water Rights: Examining the the competing Aboriginal
claim for water property rights an interests in Australia. Retrieved March 25, 2018, from
http://www.researchonline.mq.edu.au/vital/access/services/Download/mq:35733/SOURCE1

Marshall, V. A. (2017). Overturning Aqua Nullius. Retrieved March 25, 2018.

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_par
tnerships/mldrin-echuca-declaration-2009.pdf.

O'Neill, K. (2009). The Environment and International Relations. Cambridge University Press.

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Poirier, R., & Schartmueller, D. (2012). Indigenous water rights in Australia. The Social Science
Journal, 49(3). Retrieved March 24, 2018, from
https://www.sciencedirect.com/science/article/pii/S0362331911001741

United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples. New York.

United Nations. (n.d.). Division for Social Policy and Development Indigenous Peoples. Retrieved
March 24, 2018, from https://www.un.org/development/desa/indigenouspeoples/declaration-
on-the-rights-of-indigenous-peoples.html

Wordreference Dictionary. (n.d.). Retrieved March 23, 2018, from

http://www.wordreference.com/definition/country