A Web of Aboriginal Water Rights: Examining the competing Aboriginal claim for water property rights and interests in Australia Virginia Anne Marshall Student No: 40675521 Master of Laws (Australian National University) Graduate Diploma of Legal Practice (University of Wollongong) Bachelor of Laws (University of Wollongong) Bachelor of Arts (Hons.) (University of Wollongong) Bachelor of Vocational Education and Training (Charles Sturt University) Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy March 2014 Macquarie Law School, Macquarie University 1 Abstract Around the time that this doctoral research into Aboriginal water rights and interests in Australia commenced a former Prime Minister of Australia remarked that Australia was in the ‘worst drought for a hundred years’. During the following eight years of thesis research a regular review of media articles about Australia’s ‘worst drought’ highlighted the dire effects of restricted water access and its use on the farming community, irrigators and other non-Indigenous interests in water. From this point it was clear to the author that the water rights and interests of Aboriginal peoples in Australia were rarely mentioned in the Australian media. An Aboriginal perspective on these national issues demanded ‘a voice’ to examine and analyse why Aboriginal water values and concepts relating to the use of water was effectively a non-issue in the national consciousness. In 2014 various media organisations have again declared that Australia is in ‘the worst drought in living memory’. The Aboriginal claim to a property right and interest is examined from an Aboriginal perspective. The thesis examines Aboriginal concepts and values of water and posits that Aboriginal values not only exist as ancestral rights, but should be formally incorporated within the body of Australian water law. The thesis argues that although an Aboriginal ancestral water use and contemporary use of water represent different ideological concepts, as the chapters discuss, it is reasonable to submit that the cultural and economic water requirements of Aboriginal communities in Australia should be recognised and incorporated into Australia’s legal system on the basis of how Aboriginal peoples value water and its use. The argument is developed in a number of ways. In applying an Aboriginal perspective to water rights and regulation in Australia, the thesis establishes a new understanding in the significance of water to Aboriginal peoples and that, the value of water for Aboriginal peoples is inextricably connected to, and informed by, a wider system of laws and customs which govern its use and protection. The thesis demonstrates how Aboriginal peoples continue to maintain their cultural rights to water in Australia and why they require national recognition. As the thesis will show, Western and European perceptions of Aboriginal peoples relationship to land and water and the continued devaluation of Aboriginal ways of understanding and relating to an Aboriginal 2 environment impeded the recognition and protection of Aboriginal water rights and interests in Australia. However it is not the aim or purpose of this thesis to compare and evaluate Aboriginal laws alongside Western and European legal frameworks. The intention of this thesis is to focus on Aboriginal perspectives of water and how it is distinguished from Western and European perspectives in water values, use and management. The thesis recounts how Western and European policies and laws sought to frustrate and exclude Aboriginal peoples from their inherent relationship with water. In saying this, the thesis does recommend specific solutions to address the rights and interests of Aboriginal communities on the basis of fundamental human rights. Through the lens of Aboriginal cultural knowledge and law the thesis begins by examining the differences in Western and European concepts and Aboriginal conceptualisations of the meaning of ownership in water. The thesis examines how these different frameworks of knowledge have clashed in ways that have undermined Aboriginal peoples enjoyment of their water rights – in particular, in the context of the thesis, their rights to access and use water. Although rights to water continue to be asserted by Aboriginal communities and maintained by them, the development of Australian law post-contact has impeded their full recognition and protection. The thesis chapters examine and analyse a range of themes in Aboriginal water rights and interests in Australia that present current gaps in Indigenous academic research. The thesis analyses and develops an Aboriginal perspective on the impact of native title in respect to Aboriginal water rights and interest, and seeks to analyse the Western and European treatment of Aboriginal water values, customs and practices in Australia. It examines the general failure of the Australian legal system to formalise Aboriginal peoples’ ownership of water as an Aboriginal property right and how this failure to recognise has negatively impacted Aboriginal peoples’ rights to make decisions on water resources. This examination of the nature of Aboriginal water rights and interests is positioned from a holistic understanding of kinship relationships which the thesis argues would restore Aboriginal peoples’ ownership to water and use of water for cultural or other uses; and improve the health outcomes for Aboriginal peoples. 3 The thesis research examines the Murray-Darling Basin region under the Basin Plan and argues that the Basin is a significant case study highlighting the failure to value and protect Aboriginal water rights and interests, primarily because of ineffective policy development and a poor legislative framework. Both have failed to acknowledge and incorporate the cultural and economic needs of Aboriginal communities in the Murray-Darling Basin Plan. The final chapters of the thesis argue that Aboriginal wellbeing is integral in the development of water policy and its legislative system in order to achieve positive outcomes in Aboriginal health and self-determination, and to maximise the potential for future Aboriginal economic development. Although not all Aboriginal communities seek to exploit water rights through commercial opportunities or seek to trade their water rights for financial gain, as this doctoral research highlights, there is the potential for wealth creation through water ownership. The current dispossession experienced by Aboriginal peoples in Australia from their legitimate water rights and interests rests should be addressed through the reservation, or setting aside, of Aboriginal water rights, prioritised above the water rights and interests of other groups. The idea of a reservation of water rights evolved out of a state review of Aboriginal water rights and interests which I undertook, commissioned by the Department of Water in Western Australia. As a result of my review I submitted to the department that legal recognition of Aboriginal autonomy over water rights and interests ‘on country’ is essential to redress the unjust treatment of Aboriginal water rights and interests since colonial settlement and to guarantee water use for Aboriginal communities. Finally, the thesis argues that Aboriginal water rights and interests in Australia should be viewed through the lens of human rights, and not merely through Indigenous race theory or post-colonial theory, because it is vital that Aboriginal water rights dialogue is implemented upon the values, beliefs and expectations of human rights instruments. The thesis includes an analysis of international and domestic human rights which provide Indigenous peoples with fundamental frameworks and internationally recognised standards that advocate persuasive reasons why Indigenous communities should be recognised with a guaranteed cultural and legal right to water. 4 The thesis conclusion puts forward recommendations which seek to acknowledge and to protect Aboriginal water rights and interests in Australia, not as a ‘special interest group’, as current water policy has determined, but as ‘the First Peoples’ of Australia. Aboriginal peoples in Australia are unable to assert their water rights and interests through treaty instruments and domestic legislative instruments have failed to deliver the expectations of Aboriginal communities. A new paradigm is required. 5 For my children Alecxander, Natasha, Duncan and Stewart Acknowledgements The following people are acknowledged for their contribution in their inspiration, guidance and support in my journey that assisted my unswerving persistence in completing this thesis, my husband Paul Marshall and the cultural mentoring of Gavin Andrews and Frances Bodkin of Dharawal and my original supervisor Dr Andrew Buck, local Exeter resident Anthony Russell, David ‘Wardong’ Collard in Western Australia, as well as the staff of the Postgraduate Law Faculty at Macquarie University, and especially Dr Paul Taylor who provided editorial assistance. The everlasting inspiration of Aboriginal laws articulates the spiritual marriage of the land to the waters, and the significance thousands of years of superior land and water management by Indigenous communities. During the later stages of my thesis my Nyikina Mangala family has provided support and love. Note the author upon her marriage in 2010 changed her surname from Falk to Marshall. 6 Declaration This is to certify: that this thesis is comprised of my original work towards the PhD, except where indicated