1130 UNSW Law Journal Volume 40(3)
9
BEYOND RECOGNITION: LESSONS FROM CHILE FOR ALLOCATING INDIGENOUS WATER RIGHTS IN AUSTRALIA
ELIZABETH MACPHERSON
I INTRODUCTION
Australian water law frameworks, which authorise water use, have historically excluded indigenous people. Indigenous land now exceeds 30 per cent of the total land in Australia.1 Yet indigenous water use rights are estimated at less than 0.01 per cent of total Australian water allocations.2 In the limited situations where water law frameworks have engaged with indigenous interests, they typically conceive of such interests as falling outside of the consumptive pool’3 of water applicable to commercial uses associated with activities on land such as irrigation, agriculture, industry or tourism.4 The idea that states must recognise’ indigenous groups, and their ongoing rights to land and resources, has become the central claim of the international indigenous rights movement. 5 Claims for recognition of indigenous land and resource rights are the logical outcome of demands for indigenous rights based on ideas of reparative’ justice.6 The colonisers failed to recognise indigenous rights to land and resources at the acquisition of sovereignty, the argument goes, and the remedy is to recognise those rights now. The dominant legal mechanism