Collings, Neva --- "The Rights to Waters Project" [2002] IndigLawB 26; (2002) 5(16) Indigenous Law Bulletin 18

The Rights to Water Project

This article is a summary, compiled by Neva Collings, of information released by ATSIC and the Lingiari Foundation.

Waters have been called the ‘last frontier’. Rivers, waterholes, springs, creeks, ground water, Artesian waters, intertidal and fishing zones, coastal waters, and oceans have all been the subject of increasing regulation, control and value. There are many different groups lobbying for rights to water including Aboriginal and Torres Strait Islander peoples, farmers, irrigators, fisheries, the National Parks and Wildlife Service and industry groups.

Traditionally, use of lands by Aboriginal and Torres Strait Islander peoples has included use of onshore and offshore waters. There are many customs, songs, practices and ceremonies that are associated with these waters and their surroundings. This forms part of the unique culture of particular Aboriginal nations or tribes.

The Aboriginal and Torres Strait Islander Commission (‘ATSIC’) and other organisations that represent Indigenous peoples, are increasingly being asked by non-Indigenous businesses and governments, to explain who holds what rights, responsibilities and interests in water. Unfortunately there is very little in the way of national standards to help these representatives provide effective advocacy for Indigenous peoples.

There are many different groups, authorities and bodies that govern and control waters. They all make rules and regulations that affect the rights and interests of Indigenous peoples. While some of these bodies provide opportunities for an Indigenous viewpoint to be put forward, many do not.[1] In fact, at the most important levels of decision-making, the Indigenous voice is barely heard let alone formally acknowledged in legislative, representative or regulatory structures.

An Outline of the Water Rights Project

The Water Rights Project was initiated by ATSIC, in partnership with the Lingiari Foundation (Australia’s first Indigenous controlled, independently funded national organisation), in response to the lack of a coordinated national approach to representation relating to water management, use and access. The project aims to provide opportunities for Aboriginal and Torres Strait Islander peoples to tell ATSIC what they think about their rights, responsibilities and interests in water. This is vitally important for the effective advocacy, recognition, protection of rights and interests in water. The outcome of this dialogue will be a draft national policy on water.

ATSIC and the Lingiari Foundation have invited feedback from Indigenous individuals, communities and organisations on the water issues covered in the following publications put out in February 2002:

• Onshore Water Rights - Discussion Booklet One (‘book one’)
• Offshore Water Rights - Discussion Booklet Two (‘book two’)
• Background Briefing Papers: Indigenous Rights to Water

Waters have been artificially divided into two parts for the purposes of the project. Book one looks at freshwater or onshore waters. Book two is about the different kinds of saltwater or offshore waters, and the intertidal zone. This is an artificial distinction, as for many Aboriginal peoples there is no separation between land, rivers and sea.

Onshore Water Rights

Book one raises issues relating to the rights, responsibilities and interests of Aboriginal and Torres Strait Islander peoples in the water that sits on and under the land: rivers, waterholes, springs, creeks and ground water. It contains information, in individual sections, about different aspects of onshore waters. The sections are: culture, history, surface waters, underground water, catching and extracting water, land management and water quality, and recreation and enterprise.

At the moment, the Commonwealth and state governments are treating onshore water as an asset that can be sold to the highest bidder. That highest bidder then holds the rights to rent or sell the water to those that want to use it, not only those who need it. This situation gives rise to a real need for protection of Indigenous rights and interests, and raises the prospect of court challenges by parties that miss out or cannot afford to rent or buy water.

Recently governments and authorities have decided to see land as separate to the variety of waters that affect that land. Water is seen as adding value to the land and may no longer be part of the ownership of the land itself. This means that in addition to thinking about issues relating to land, we have to deal separately with all the legal, social, economic, scientific and political factors that arise when talking about our rights to onshore waters.

For example, the importance of water now—under the governments’ new way of looking at water as separate from the land—is not only in its quality, but also in its quantity. This means quantifying the amount of rain that falls on the landholding, how much run-off there is, and how much water the rivers and creeks that run across the lands can hold. Even the water that might be under the ground, or comes to the surface as bore water, will be measured. From the perspective of Indigenous rights to waters, the maintenance of sustainable water flows go to the heart of Indigenous cultural and heritage survival.

Offshore Water Rights

Book two contains information, in individual sections, about different aspects of offshore waters. The sections are: fishing zones and fishing rights, the intertidal zone, coastal waters and oceans. There are many different ways to think about saltwater or offshore waters. Much of the sea and ocean around the coastline of Australia is being divided into zones or areas, and these will be marketed for different uses and sold to commercial interests and others. The rights and interests of Indigenous peoples to these offshore waters are important, and need to be protected.

Currently the rights of Indigenous peoples to access offshore waters are not adequately protected. Over the years, as governments gained a better understanding of the marine environment, they started to protect fish stocks from over-fishing by not allowing people to fish without a licence. Under these laws Indigenous peoples can be prosecuted for continuing customary fishing practices. On the whole state laws in Australia contain only limited acknowledgment of customary fishing rights. For example, laws in the Northern Territory, Queensland, Tasmania and Western Australia allow for Indigenous peoples to fish, provided that fishing is for recreational, ceremonial or religious purposes.[2] South Australian legislation does not expressly provide for any Indigenous customary fishing rights.[3]

There is some protection of Indigenous rights to the sea if native title to those waters is established. However these native title rights are presently restricted to personal or non-commercial uses.[4]

Background Briefing Papers: Indigenous Rights to Waters

In carrying out this project, the Lingiari Foundation asked some people with knowledge of the issues, relating to both onshore and offshore waters, to write short papers to assist with developing the draft policy. These are intended to help with discussions and information exchange. The briefing papers are user-friendly, and provide a compact overview of pertinent issues and comparative examples.

The booklets and briefing papers outlined above have been sent to Indigenous organisations and to ATSIC Regional Councils, and can be obtained from the ATSIC National Policy office via the email address below. Feedback is still sought and will be added to a dynamic database. The database will continue to be added to and will assist in developing priorities for policy action. If you have any questions or need more information about this project contact the local ATSIC office in your state or territory, email [e-mail] or visit the ATSIC website at www.atsic.gov.au (under ‘issues’ then ‘Indigenous rights to waters’).

Neva Collings is vice-president of Ngalaya Aboriginal Corporation (Indigenous Lawyers Association). She is also a research consultant and works part-time at a new website company.

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[1] Lingiari Foundation, Onshore Water Rights Discussion Booklet One (2002) 2-3.

[2] Lingiari Foundation, Offshore Water Rights Discussion Booklet Two (2002) 5.

[3] Ibid.

[4] Commonwealth of Australia v Yarmirr [2001] HCA 56.