Chapter Five: Application of equitable utilization and minimisation principles at the federal level
5.8 Indigenous water rights in the MDB
considerable amount of introduced fish and native fish because of decreased flow and not having enough water. Simultaneously, they confirmed that over-extraction and mismanagement of the water resources in the basin were the long term causes of this national disaster.742
Despite that disaster, the provisions of the Water Act have not been fully implemented due to highly politicised water resource management in the basin and the basin plan.
The MDBA has not successfully adopted scientific warnings and evidence or responded to reduced water availability in the basin.743 All of the above issues relating to the MDB plan and the effectiveness of MDBA were summarized by the Commissioner. He stated that:744
When crimes such as water theft or meter tampering, and related offences of deception and corruption, are suspected, adequate investigations and prosecutions will be critical to the integrity, effectiveness and morale of the system. Admittedly, this aspect of the system has not uniformly been as it should have been.
Therefore, many issues hinder the full implementation of the basin plan, and the MDBA is not effective enough to tackle these serious issues in the basin. Despite the lack of effectiveness and efficiency, the government and the MDBA have been criticized for not engaging Australian indigenous people decision making process in the basin plan.
This is addressed in the following section.
However, both the UN Watercourses Convention and Helsinki Rules omitted this significant issue in determining the principle. Article 6 of the Convention and V of the Rules mentioned various factors for determining equitable utilisation, but indigenous water rights are not among these factors.745 Both articles refer to considering the social needs in the basin states, but without specific meaning or further explanation of the social needs. Therefore, indigenous water rights should be covered under the broader meaning of equitable utilisation. This right should be one of the factors for determining the principle among riparian states and countries. How indigenous rights are practised as part of equitable utilisation in MDB is crucial in this section. Also, how these rights should be adopted in water resource management will be answered in both this section and the following.
In Australia, including the MDB, indigenous rights are introduced and provided for in the Native Title Act (NTA) 1993.746 The Act confirms in its preamble that Aboriginal and Torres Strait Islander people (ATSI), as native people of Australia, have faced dispossession since European settlement. According to the Act, the ATSI people are
“the most disadvantaged in Australian society.”747 Prior to enacting the NTA, the High Court of Australia recognised the native title for the indigenous people in Australia for the first time in the Mabo case. The court rejected the concept of terra nullius (land of no one) in Australia in this case, though it was restricted to the land only.748 The Mabo case and the NTA have significantly transformed indigenous rights in the last three decades because they have transformed Australia's view of social and cultural change.749 However, this recognition not only brings benefits for ATSI people, but it may also bring several problems.750
The ATSI people recovered a large area of the land, which accounts for more than thirty per cent, especially after the case and enactment of the NTA. However, this recognition has not extended to water resources because ATSI people hold only 0.01% of the total
745 Convention on the Law of the Non-navigational Uses of International Watercourses art 6.
746 See Native Title Act 1993.
747 At Preamble.
748 See Mabo and Others v. The State of Queensland [No. 2] 175 CLR 1 [1992] .
749 Manuhuia Barcham (ed) The limits of recognition (The Social Effects of Native Title: Recognition, Translation, Coexistence, 2007) at 203-214.
750 At 209.
Australian water.751 The main factor for this consequence and dismissal of indigenous rights in water is that NTA limited ATSI people's rights around cultural and traditional objectives. 752 Furthermore, the social and economic conditions of indigenous Australians is primarily dismissed in water resource management. Historically, their role was also ignored in decision making about these resources in various regions in Australia.753 However, recently some Australian state institutions, particularly in Western Australia and the Northern Territory, have considered indigenous peoples' interests in water management and decision making.754 Introducing the ATSI people's water rights and interests outside the native title provides a greater solution because the ATSI people’s water right is ignored considerably in the NTA.755
The Aboriginals groups organised themselves under the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) which was established in 1998.756 They are seeking Aboriginal water rights, including participation in various levels of water management and decision making. The enactment of the Native Title Act in 1993 had a significant impact on the establishment of this organisation.757 As well as the MLDRIN, Northern Basin Aboriginal Nations (NBAN) are also working to protect indigenous water rights in the MDB.758 Thus, there is a growing desire to include water rights and cultural values of the indigenous people in water management in MDB. The Commonwealth government should recognise these rights and values because the indigenous people had water management approaches prior to the federation. It is argued that indigenous Australians constructed dams before European settlement in Australia. They used dams for diverting water to irrigate more land and increase food production, especially during
751 Jon Altman and Francis Markham “Burgeoning Indigenous land ownership: Diverse values and strategic potentialities” (2015) Native title from Mabo to Akiba: A vehicle for change and empowerment at 126.
752 Elizabeth Jane Macpherson Indigenous Water Rights in Law and Regulation (Cambridge University Press, 2019) at 216.
753 See Kim Barber and Hilary Rumley “Gunanurang (Kununurra) big river, Aboriginal cultural values of the Ord River and wetlands” (2003) Western Australian Water and Rivers Commission, Perth.
754 Marcus Barber and Sue Jackson “Indigenous water values and water planning in the upper Roper River, Northern Territory” (2011) Darwin: CSIRO at 13.
755 Macpherson, above n 752.
756 Weir, above n 194.
757 Jessica Weir and Steven Ross (eds) Beyond native title: the Murray Lower Darling Rivers Indigenous Nations (ANU E Press, The Social Effects of Native Title: Recognition, Translation, Coexistence, 2007) at 185-202.
758 Sue Jackson, Rene Woods and Fred Hooper “Empowering First Nations in the governance and management of the Murray–Darling Basin” in Murray-Darling Basin, Australia (Elsevier, 2021) 313-338.
dry seasons.759 However, a new approach is required outside of the native title.760 This approach should not separate the land rights (including rights to water) from the land because is more complicated than has been observed so far.