Water management and rights
Since the early 1990s, there has been a gradual shift towards greater public participation in water management around the world. There are now a number of examples of a shared approach to water management, many of which have begun to include Indigenous voices alongside those from government and industry.
Indigenous representation in Australian water management
Australian governments have only recently taken steps towards increasing Indigenous representation in water management. The first Indigenous Advisory Group—the First Peoples’ Water Engagement Council—was established in 2009 as the result of an Indigenous freshwater planning forum convened by the National Water Commission.
Since then, the Commonwealth Environmental Water Holder—an office established under the Water Act 2007 (Cth) to manage water acquired by the Australian Government—has declared its commitment to working with Indigenous organisations.
Snapshot from Victoria +
In Victoria, the State Water Strategy includes a $5 million fund to support Aboriginal access to water for economic development, and a similar amount is dedicated to an Aboriginal Water Program to ensure Aboriginal values and expertise are part of Victorian water management.
However, as researcher Sue Jackson explains, these are only first steps:
‘This recent era shows that addressing the colonial legacy will require a dedicated effort to confront the inherited structures that shape distributive outcomes. The National Water Initiative failed to provide mechanisms to address historical disadvantage in water access and repeated calls by Indigenous peoples and others for reallocation have so far been ignored.’
– Sue Jackson, 'Building trust and establishing legitimacy across scientific, water management and Indigenous cultures’
Environmental flows and cultural flows +
The work of the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) reflects the understanding that water is more than just an economic and environmental resource. Rivers and other waterways are also cultural holding spaces for First Nations people.
In 2007, MLDRIN created the Echuca Declaration, outlining First Nations’ rights and aspirations in water management and defining the concept of ‘Cultural Flows’. MLDRIN states that:
‘Aboriginal people have always cared for waterways and used water to sustain our culture and livelihoods. MLDRIN defined Cultural Flows as a way of translating Indigenous people’s water rights, needs and aspirations into the language of modern water management. First Nations have the right to own and manage water on our Country to support self-determination.’
MLDRIN is also part of the National Cultural Flows Research Project, which was aimed at securing ‘a future where First Nations' water allocations are embedded within Australia's water planning and management regimes’. The project’s findings were released in June 2018.
How land rights connect to water rights
One of the key issues facing Australian Indigenous communities working towards greater participation in water management is the separation of water use rights from land rights.
This separation, enshrined in the 2004 Intergovernmental Agreement on a National Water Initiative, means that even where native title is recognised, Indigenous water use rights extend only to activities such as hunting, fishing, and cultural or spiritual activities. Other water use rights are still governed by Australia’s existing water use laws. The result is that native title holders are unable to use their water rights for economic development i.e. activities such as commercial irrigation.
This disconnect between land and water rights means that while Indigenous land currently exceeds 30% of Australia, Indigenous water use rights are estimated to represent less than 0.01% of Australia’s total water allocations. For more on this topic, see The Conversation article Water in northern Australia: a history of Aboriginal exclusion.
Marine resource management +
An example of co-management arrangements for marine resources includes the Traditional Use of Marine Resource Agreements (TUMRAs). TUMRAs are formal agreements developed by Traditional Owners and the Great Barrier Reef Marine Park Authority (GBRMPA). These agreements govern how Traditional Owners work with the Australian and Queensland governments to manage traditional use activities within the Great Barrier Reef Marine Park.
Traditional Owners’ connection with the land and sea within the Great Barrier Reef Marine Park is recognised through their joint management of the reef, integrating modern practices with traditional knowledge.
As the UNESCO World Heritage Convention explains, TUMRAs currently cover around 30% of the Great Barrier Reef inshore area. As of June 2020, there were ten agreements with 18 Traditional Owner groups.
The 2015-16 Land and Sea Country Partnerships report adds that there are more than 70 Traditional Owner groups with connections to sea country between Bundaberg and the eastern Torres Strait Islands.
Indigenous Land Use Agreements (ILUAs) under the Native Title Act 1993 (Cth) may also be developed to include sea country arrangements. Read more about native title.
The river as a legal person +
One strategy used by some Indigenous communities and those working towards a shared approach to water management has been to establish legal personhood status for rivers. As a legal person under the law, rivers have the same rights as human beings, along with the same duties and liabilities.
One of the most high-profile examples is New Zealand’s Whanganui River, which was recognised as a legal person in early 2017 in a settlement between the New Zealand government and the Maori of the Whanganui Iwi (tribe). The river’s legal person status established a new governance model–the Te Pou Tupua–that includes a ‘guardian’ acting in the interest of the river and protecting its rights. These rights exist alongside those of private users, municipal governments and New Zealand’s central government.
The results of granting legal person status to rivers are still being explored in New Zealand and other parts of the world. Legal person status has been granted for Colombia’s Rio Atrato, while similar claims have been filed for the Colorado River in the US and a number of rivers in India. It remains to be seen whether the legal protection this status gives rivers also comes with drawbacks, such as the potential that a river could be sued for flood damage.
‘Recognising rivers as legal persons means that the rivers themselves are the subject of legal rights, and have the necessary standing to sue and be sued, enter into contracts, and hold property in their own name.’
– Erin O'Donnell and Elizabeth Macpherson, 'Voice, power and legitimacy: the role of the legal person in river management in New Zealand, Chile and Australia'
Read more +
- Prescribed Bodies Corporate information on native title, rights and interests.
- CRC REEF RESEARCH CENTRE TECHNICAL REPORT NO. 56: Traditional Owner aspirations towards co-operative management of the Great Barrier Reef World Heritage Area: community case studies.
- The Dawul Wuru Aboriginal Corporation – an Aboriginal Traditional Owner owned, managed and governed community organisation servicing the eastern north Queensland area between Cairns and Port Douglas.
- Great Barrier Reef Protection: Traditional Owner reef protection.
- Story Place: provides information and knowledge about Traditional Owners and their relationship with land and sea country in the Great Barrier Reef Region.
References & acknowledgements +
Cited on this page:
- Jackson, S., 2019. ‘Building trust and establishing legitimacy across scientific, water management and Indigenous cultures.’ Australasian Journal of Water Resources. 23:1, pp 14-23.
- O’Donnell, E. and Macpherson, E., 2018. ‘Voice, power and legitimacy: the role of the legal person in river management in New Zealand, Chile and Australia.’ Australasian Journal of Water Resources. 19:1, pp 35-44.