NAILSMA ­ TRaCK Project 6.2 Indigenous Rights in Water in Northern Australia Michael O’Donnell Barrister‐at‐Law John Toohey Chambers DARWIN NT 0800 March (Photo courtesy of W. Nikolakis) 2011 (Photo: North Australian Indigenous Experts Water Futures Forum. NAILSMA © 2009) Disclaimer TRaCK has published the information contained in this publication to assist public knowledge and discussion and to help improve the sustainable management of Australia’s tropical rivers and coasts. Where technical information has been prepared by or contributed by authors external to TRaCK, readers should contact the author(s), and conduct their own enquiries, before making use of that information. No person should act on the contents of this publication whether as to matters of fact or opinion or other content, without first obtaining specific independent professional advice which confirms the information contained within this publication. While all reasonable efforts have been made to ensure that the information in this publication is correct, matters covered by the publication are subject to change. Charles Darwin University does not assume and hereby disclaims any express or implied liability whatsoever to any party for any loss or damage caused by errors or omissions, whether these errors or omissions result from negligence, accident or any other cause. Copyright This publication is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review as permitted under the Copyright Act, no part may be reproduced, by any process, without written permission from the publisher, Enquiries should be made to the publisher, Charles Darwin University, c/­ TRaCK, Casuarina Campus, Building Red 1 Level 3, Darwin NT 0909. TRaCK brings together leading tropical river researchers and managers from Charles Darwin University, Griffith University, the University of Western Australia, CSIRO, James Cook University, the Australian National University, Geoscience Australia, the Environmental Research Institute of the Supervising Scientist, the Australian Institute of Marine Science, the North Australia Indigenous Land and Sea Management Alliance, and the Governments of Queensland, the Northern Territory and Western Australia. TRaCK receives major funding for its research through the Australian Government's Commonwealth Environment Research Facilities initiative; the Australian Government's Raising National Water Standards Program; Land and Water Australia; the Fisheries Research and Development Corporation and the Queensland Government's Smart State Innovation Fund. O’Donnell, Michael. Indigenous Rights in Water in northern Australia, John Toohey Chambers, Darwin, Northern Territory, Australia 2011. For further information about this publication: Michael O’Donnell, Barrister‐at‐Law, John Toohey Chambers, Darwin. Email: [email protected] Or to find out more about TRaCK Visit: http://www.track.gov.au/ Email: [email protected] Phone: 08 8946 7444 ISBN: 978‐1‐921576‐50‐8 Published by: Charles Darwin University Printed by: Griffiths University 3 Acknowledgements I would like to thank the North Australian Indigenous Land and Sea Management Alliance (NAILSMA) in particular Joe Morrison, Lorrae McArthur and Michael Storrs for the opportunity to undertake this task and their patience. I am also appreciative of the thorough review of a draft of this work and assistance provided by Professor Lee Godden of the University of Melbourne. In general terms I would also like to thank the many Indigenous people who over a number of years have enabled me to experience and to some extent understand their positions and thinking in relation to the important issues discussed in this report. 4 TABLE OF CONTENTS EXECUTIVE SUMMARY 10 TERMS OF REFERENCE 21 INTRODUCTION 22 Limitations upon the recognition of Indigenous rights in the Australian legal system 23 International standards 25 The difference between land rights and native title in Australia 27 Definitional issues in relation to water 28 Indigenous perspective in relation to water 29 THE RELATED ISSUES OF OWNERSHIP OF NATURAL WATERS, VESTING OF NATURAL WATERS IN THE CROWN AND RIPARIAN RIGHTS 32 Introduction 32 Background – the common law 33 Water management legislation 36 Non Tidal rivers and land boundaries 40 Land on the seashore 40 Queensland ‐ Water Act 2000 40 Western Australia ‐ Rights in Water and Irrigation Act 1914 42 Northern Territory – Water Act, 1992 43 Water and Northern Territory freehold title 45 Northern Territory ‐ the property in and the rights to the use, flow and control of all water in the Territory is vested in the Territory 45 Conclusion 49 1. REVIEW AND ANALYSE THE MANNER IN WHICH EXISTING STATE, TERRITORY AND FEDERAL LAW TREAT INDIGENOUS INTERESTS IN WATER 51 Part A ­ Native Title 51 Mabo v Queensland [No 2] – the Mabo Case 52 Native Title – in what circumstances is it recognised 53 Native Title rights to access, take and use water for non‐commercial purposes 57 A Native Title right to trade 58 Native Title right to control access to waters 59 Native Title Act 1993 62 5 The recognition of native title 64 Exclusive possession determination 64 A non‐exclusive determination 65 Confirmation of Crown or Government’s existing rights to the use, control and regulation of water 67 Validation of water management legislation 67 Confirmation of public access to water 67 Section 211 of the Act 67 Native Title rights to water and the future act regime 70 Conclusion ‐ water management legislation and native title procedural rights in relation to water – section 24ha 75 The conduct of other activities related to water 75 The Indigenous Land Use Agreements (ILUA’s) provisions 77 Conclusion 78 Part B – Land Rights 81 Queensland 82 Northern Territory ­ Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 86 Western Australia 110 Part C ­Legislation that recognises Indigenous usage or traditional usage of land and waters 112 Access to and use of pastoral lease land and waters 114 Access to waters for traditional use and fishing purposes 117 Access to and use of land and waters for traditional purposes and taking of flora and fauna from certain crown lands 119 Conclusion 119 Part D ­ Heritage Protection Legislation 122 Federal Heritage Protection Legislation 127 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) 127 Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) 132 EPBC assessment and approvals process 136 Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) 136 State and Territory Indigenous Heritage Protection Legis lation 137 Northern Territory‐ Aboriginal Sacred Sites Act 1989 139 Queensland ‐ Aboriginal Cultural Heritage Act 2003 and Torres Strait Islander Cultural Heritage Act 2003 143 Western Australia ‐ Aboriginal Heritage Act 1972 148 Conclusion 152 Part E ­ Environmental legislation 157 Introduction 157 Envi ronm ental Protection and Biodiversity Conservation Act 1999 (Cth) 158 6 Northern Territory 160 Western Australia 162 Queensland 163 Coastal Protecti on and Management Act 1995 (Qld) 166 Cape York Peninsula Heritage Act 2007 169 Wild Rivers Act 2005 170 Queensland Wild Rivers and Native Title 172 Wild Rivers and Aboriginal Land – Aboriginal Land Act (ALA) 176 Indigenous water reserve for economic and social purposes 177 Conclusion 178 2. EXAMINE THE COMPATIBILITY OF PRESENT STATE AND TERRITORY LAW TO THE NATIONAL WATER INITIATIVE, PARTICULARLY AS IT RELATES TO INDIGENOUS INTERESTS AND RIGHTS IN WATER OR ASSETS AFFECTED BY WATER MANAGEMENT 179 National Water Initiative and Indigenous interests 180 National Water Initiative ‐ Objective ‐ Statutory recognition of Indigenous and cultural values 183 Indigenous water use to be included in Water Plans and Planning Processes 183 Indigenous allocation from the consumptive pool 183 Indigenous representation in water planning 185 Indigenous social, spiritual and customary interests 185 Allocation of water to legally recognized native title holders 185 Water trading and Indigenous cultural heritage 186 Guidelines for implementation of Indigenous provisions in the NWI 187 Critique of adequacy of NWI with respect to Indigenous interests 187 Progress on implementation of Indigenous aspects of NWI – the National Water Commission (NWC) 188 Western Australia 191 Conclusion – Western Australia 196 Queensland 197 Conclusion ‐ Queensland and the NWI Indigenous provisions 200 Northern Territory 200 A Northern Territory water plan 202 Conclusion 204 Recommendations 206 3. SO FAR AS POSSIBLE, CONSIDER IMPLICATIONS OF PROPOSALS FOR REVISION OF WATER LAW IN NORTHERN AUSTRALIAN JURISDICTIONS, ESPECIALLY PROVISIONS UNDER CONSIDERATION FOR TREATING INDIGENOUS INTERESTS AND INCLUDING POTENTIAL FOR INDIGENOUS ALLOCATIONS FROM THE CONSUMPTIVE POOL 208 Introduction 208 Indigenous proposals for water law reform 212 7 The Anmatyerr Story – Provision for cultural values in water management 214 Northern Australian Governments proposals to reform water law and the National Water Initiative 215 National Water Initiative and the NSW Water Management Act 2000 219 Water allocation to Indigenous interests from the consumptive pool 220 Western Australia 221 Western Australia ‐ Consumptive pool and Indigenous interests 224 Northern Territory 225 Living Rivers – Northern Territory 227 Queensland 229 Northern Australia Land and Water Taskforce 233 Indigenous reserve of water from the consumptive pool 234 An Indigenous Water Holder 236 Indigenous cultural flows 238 Recommendation 243 Conclusion 243