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Lane, Patricia --- "Native Title and Inland Waters" [2000] IndigLawB 30; (2000) 4(29) Indigenous Law Bulletin 11

Native Title and Inland Waters

by Patricia Lane

For tens of thousands of years, Aboriginal occupation of inland Australia has depended on knowledge of water distribution and use of technology to exploit water resources.[1] Since the last ice age 12,000 years ago, sea levels have risen and continental interiors have become increasingly arid. The coastal fringe of Australia has always been more densely populated than the vast interior. Inland Aboriginal peoples have developed land and water management practices to regulate the productivity of the local environment.

Access to water is a central issue in the debate about sustainable population levels in Australia, and greater awareness of the broader impact of water use on the environment has led governments to reform water allocation and use. Finding the balance between environmental values and pressure for development is a difficult task for governments, and these issues are highlighted when an application for native title is lodged over inland waters.

Asserting Native Title

Where native title is asserted,[2] applicants will be required to demonstrate that traditional laws and customs confer entitlement and responsibilities in relation to water. This will include, where water is seasonally scarce, knowledge about soaks and springs, and with respect to water in lakes and large rivers, knowledge of seasonal variation and the capacity of the country to support large communities.[3] The traditional laws and customs concerning country form a complex matrix of economic, social and spiritual relationships[4] in which access to water governs the lifestyle and the use of sites. [5] Rights in relation to water, or entitlements to protect water, arise from and are modified by these relationships. It is difficult to describe rights to water in terms of an entitlement to carry out certain activities (eg, fishing) when the performance of the activity expresses several aspects of the relationship (eg, fishing for domestic sustenance, fishing to carry out an obligation to relatives, fishing as part of ceremonial practice). [6]

Non-Indigenous Water Interests

The survival of the colonies depended from the outset on access to water. It was not just that water was scarce: some difficulties arose because it was assumed that land management practices of England and Ireland could simply be transplanted into the new environment. Much of the history of inland Australia records the development of irrigation and exploitation of artesian water systems to give agriculture and grazing a toehold in the marginal country. [7] The interior of the continent was seen through European eyes as a parched and dangerous place, to be tamed by mighty feats of engineering such as the Ord River Scheme, the Snowy Mountains Scheme, or the Perth-Kalgoorlie water pipeline.

Profitable development of most of the resources of inland Australia depends on access to water. There is pressure on historical farm commodities from global markets, and diversified land use can give many primary industries a sounder economic base. Importantly, intensive agriculture can give a price advantage in the international market. For example, there has been publicity concerning a proposal to dam the Fitzroy River in Western Australia to permit irrigation for cotton production. Another instance is the public agitation to increase the flow of the Snowy River, which has highlighted the dependence of rice growers and other producers on continued access to water from the Snowy River Scheme.

A fundamental problem, however, is that continued exploitation of inland water reserves threatens the country’s capacity to support development, and water quality issues are emerging for both urban and regional centres, particularly where supply services have been privatised. There are debates about the extent of environmental harm caused by agriculture and development, what level of development is sustainable, how sustainability is measured and what steps are necessary, or sufficient, to deliver it.

Native Title Over Water

One of the important issues in native title claims is the extent to which the common law recognises traditional law over water. [8]

In Commonwealth v Yarmirr, [9] which was the first Australian case to make decisions in relation to native title over water, the Federal Court held that non-exclusive native title existed over areas of sea but that rights to exclude others could not be recognised due to the existence of a public right to fish. As the public right to fish exists in tidal waters, it is likely that courts will continue to hold that only non-exclusive native title rights can be recognised in tidal waters.

The question of whether native title rights are regulated or extinguished by government water projects such as the Ord River Scheme may arise for the High Court if leave is granted in Western Australia v Ward (‘Ward’). [10] If, as was held in Ward, native title is recognised by the common law as a bundle of rights which are identified by the activities that are carried out on the land or waters, then native title rights can be selectively extinguished by the creation or exercise of inconsistent rights by governments. The majority of the full Federal Court in Ward rejected Justice Lee’s view that the common law recognised the original interest in land, which might be suppressed by government action, but that it could not be extinguished by piecemeal extinction of its component parts.[11]

All states have asserted control[12] over allocation of water[13] and water legislation in most states confers on the state the right to use, management and control of flow of water,[14] including groundwater.[15] Water legislation also contains provisions vesting property[16] in the beds of watercourses and lakes (variously defined) in the Crown.[17] However, in Ward, the statutory vesting in the Crown of the right to the use and flow of water was held not to have extinguished native title,[18] although the finding that the various statutory provisions may have restricted the title and affected its exclusivity[19] may be tested on appeal.

The common law of water itself recognises a variety of co-existing[20] rights and obligations in relation to the flow and quality of water,[21] and there is a strong public element in the regulation of private water rights. This public element may restrict recognition of any native title right to exclude access to waters,[22] but support a conclusion that control and management regimes do not exhibit the necessary intention to abrogate the right entirely.[23]

Another extinguishment issue arises in relation to the effect of freehold grants along the banks of rivers and creeks, or on land where springs and soaks are located. Application of a bundle of rights analysis would arguably result in extinguishment by inconsistency of rights, at least where no lawful public access to the water existed.[24] The reasoning of Justices Lee and North would arguably recognise native title in relation to these waters unless the degree of regulation disclosed an intention to abrogate the underlying interest completely. Note that the cases relating to the recognition of traditional fishing rights[25] do not deal with the position where access to the water is through private land.

There are other significant Aboriginal concerns in relation to water rights. A central issue is that development along river banks has the potential to impair traditional spiritual relationships with the waters.[26] Yet the majority in Ward concluded that the common law does not recognise spiritual relationships with country as an incident of native title, nor does it recognise a right to maintain, protect and prevent the misuse of cultural knowledge.[27] However, in Yarmirr v Northern Territory[28] Justice Olney held that the right to protect cultural knowledge is a right that can be recognised if traditional law requires presence on the country (such as visiting a site to pass on knowledge). The role of native title becomes more important as existing heritage legislation may not be able to deal with the conflict between the preservation of spiritual or cultural relationships with water and pressures for development, particularly where a large area possesses special significance.[29]

Furthermore, Aboriginal people also have a claim to be considered experts in the history and characteristics of inland water systems.[30] Many of the characteristic vegetation and fauna distribution patterns can be explained by reference to indigenous systems of land management and husbandry, of which the most obvious examples are fish traps and weirs, and the cultivation of food bearing plants in and around waterways.

Existing Protection for Native Title Rights

The Native Title Act 1993 (Cth) (the ‘NTA’) sets out certain protections for native title rights. Section 212 confirms the Crown’s right to use and control the flow of water, and s 211 preserves the right of native title holders to fish or engage in other traditional activities. Section 211 may also support rights of access to engage in traditional activities,[31] although any such access would be subject to the rights of occupiers or permit holders. Where the ‘freehold test’ applies to future acts it applies on the basis that native title holders have ordinary title to the lands adjoining the water. [32]

Under s 24HA, acts of the government in water management or regulation[33] may validly affect native title if the person proposing to do the act notifies representative bodies and any registered holders or claimants of native title and gives them an opportunity to comment on the act. In Lardil v Queensland,[34] however, it was held that this provision did not require the government to notify native title parties. Even if an obligation were found to exist by future court decisions, it must be asked whether the entitlement of the native title holders would extend beyond a right to know the nature of the acts that were proposed and a legitimate expectation that their comments would be considered in making the decision whether to proceed with the act.[35]

Native title rights in water may also be affected by the creation of public works,[36] renewal of licences or permits,[37] and construction of facilities for services to the public.[38] Water management legislation also falls within s 24HA.

Water Reform

Government or private rights in water can be just as difficult to define as native title rights,[39] as they involve a complex web of intersecting relationships affecting landowners and occupiers, downstream users, government and private authorities, state land management and environment protection departments, industry, recreational users and conservation groups. The historical licence system of allocating fixed quantities of water without regard to the preservation of the environment is no longer viable, because access to water, or use of watercourses, supports a range of regional industries apart from agriculture and grazing. Aquaculture and tourism businesses, for example, depend as much for their existence on preserving the integrity of the natural aquatic environment as preserving entitlement to a quantity of water.

Most states have embarked on water reform legislation following the agreement of the Coalition of Australian Governments to take steps to define private rights and promote competition in water supply. Queensland, New South Wales, Western Australia, Victoria and the Northern Territory have released proposals for management of water that alter their statutory licensing systems. The skeleton of the proposed systems requires the State to allocate water to environmental purposes, and to consider environmental factors in allocating water rights. Rights in water are defined according to classes of use: some rights are for fixed quantities, some are for rights in a share of available water, and tradeable and non-tradeable allocations may be made. Former statutory riparian rights are curtailed. Local water management committees will be responsible for developing water management plan and other specific functions, but will not be responsible for allocating water rights.[40]

There is very little reference to any consultation with peak Aboriginal bodies or with local Aboriginal groups in the policy papers that have emerged from the states. The NSW White Paper on Water Reform states that

[T]he proposed water legislation will not affect the operation of the Commonwealth or NSW Native Title Act in respect of the recognition of native title rights and interests. The State will comply with that legislation before granting any rights or interests in water.[41]

Whether this will involve according the representative body or native title claimants any formal opportunity to comment is unclear.

Native title over water is complex because of the huge range of interests that already clamour for attention from government, and the environmental imperative of immediate action to stabilise the decline in quality of inland water systems. There are problems in defining the extent of common law recognition of native title, and the approach to be taken to extinguishment or regulation by governments. Where native title exists, there are doubts about the ability of the Native Title Act to protect it adequately.

It is not clear just what impact the water reform proposals will have. Even if it amounts to another layer of regulation, it does not appear from the various reports whether any consultation with traditional owners has occurred in the development of the proposals or whether there will be any degree of consultation with indigenous people in implementing the reforms. In the United States and New Zealand,[42] indigenous people have successfully asserted traditional rights to water based on the recognition of prior right or customary rights protected by treaty. At the moment, there does not appear to be any evidence that governments in Australia have consulted specifically with native title holders, and the present state of the common law appears to provide little incentive to do so.

Patricia Lane is a barrister and part-time Member of the National Native Title Tribunal. The views expressed in this article are those of the author and do not represent any policy or position of the National Native Title Tribunal.

[1] See generally James Kohen, Aboriginal Environmental Impacts (1995). Somewhat different issues concerning inland water arise in the Torres Strait but those issues shall not be addressed in this paper.

[2] Under the Native Title Act 1993 (Cth) (the ‘NTA’), or the relevant state forms of legislation on native title.

[3] See, eg, Norman B Tindale, ‘The Aboriginal Occupation’ in Lawrence and Kinross Smith (eds), The Book of the Murray (1975).

[4] See Bropho v Ball (Unreported, Federal Court of Australia, 1 February 1997).

[5] See Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 513.

[6] Evidence of continuing specific activities may be insufficiently persuasive of the existence of any continuing law and custom concerning those activities. See Yorta Yorta People v Victoria (Unreported, Federal Court of Australia, Olney J, 18 December 1998) 122 and Wik Peoples v Queensland (1998) 187 CLR 1, 183 (Gummow J).

[7] See, eg, B Hardy, Water Carts to Pipelines: The History of the Broken Hill Water Supply (1968).

[8] Although there is an extensive literature on the law of traditional marine tenure, inland waters do not often receive separate treatment although articles on fisheries will often touch on the subject.

[9] (1999) FCA 1668 (the ‘Croker Island’case).

[10] (2000) FCA 191, 109.

[11] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 508. But see the dissenting judgment of Justice North, who agreed with Justice Lee, Western Australia v Ward (Unreported, Beaumont, von Doussa & North JJ, 3 March 2000) at 18 May [784].

[12] And in the Northern Territory, ownership (Water Act 1992 (NT) s 9).

[13] See Michael Barker, ‘The Water Licensing Process - The Legal Framework’ in R Bartlett, A Gardner and B Humphries (eds), Water Resources Law and Management in Western Australia (1995).

[14] Water Act 1912 (NSW) s 7; Rights in Water and Irrigation Act 1914 (WA) s 8.

[15] See Virginia Newell, ‘Property Rights in Groundwater?’ (1999) 4(24) ILB 4.

[16] The effect of this vesting on native title rights must be interpreted in the light of the decision of the High Court in Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258.

[17] Eg, the Rights in Water and Irrigation Act 1914 (WA) s 5.

[18] Western Australia v Ward (Unreported, Beaumont, von Doussa & North JJ, 3 March 2000) at 18 May [ 400].

[19] Ibid, 405.

[20] See Carol M Rose, ‘Energy and Efficiency in the Realignment of Common Law Water Rights’ (1990) 19 Journal of Legal Studies 261; Sandford D Clark & Ian M Renard, ‘The Riparian Doctrine and Australian Legislation’ [1970] MelbULawRw 13; (1970) 7 Melbourne University Law Review 475.

[21] Van Son v Forestry Commission (NSW) (1995) 86 Local Government and Environmental Reports of Australia 108.

[22] See Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426.

[23] Thorpes Ltd v Grant Pastoral Co Ltd [1955] HCA 10; (1955) 92 CLR 317, 331; Richard Bartlett, Native Title in Australia (2000) 14.87 - 14.92.

[24] See Crown Lands Act 1989 (NSW) s 172; Barker, above n 14, 279.

[25] Wilkes v Johnson (1999) WASCA 74, Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton (1996) 17 WAR 419.

[26] Bropho v Ball (Unreported, Federal Court of Australia, 1 February 1997).

[27] Western Australia v Ward (Unreported, Beaumont, von Doussa & North JJ, 3 March 2000) at 18 May [666].

[28] [1998] FCA 771; (1998) 156 ALR 370, 426-7. See also Hayes v Northern Territory (Unreported, Federal Court of Australia, Olney J, 9 September 1999).

[29] Lawson v South Australia (1999) FCA 22.

[30] See Graeme Neate, ‘Looking After Country: Legal Recognition of Traditional Rights to and Responsibilities for Land’ [1993] UNSWLawJl 8; (1993) 16 University of New South Wales Law Journal 161; Robert E Johannes, ‘Traditional ecological knowledge of fishers and marine hunters’ in Williams & Baines (eds), Traditional Ecological Knowledge (1993).

[31] Richard Bartlett, ‘Native Title to Water’ in R Bartlett, A Gardner and S Mascher (eds), Water Law in Australia: Comparative Studies and Options for Reform (1997).

[32] NTA s 24MD (6A). Cf s 240, which imposes a similar compensible interest test.

[33] ‘Water’ means water in all its forms and management or regulation includes granting access to water, or taking water.

[34] (Unreported, Federal Court of Australia, Cooper J, 24 November 1999).

[35] Harris v Great Barrier Reef Marine Park Authority (Unreported, Federal Court of Australia, Keifel J, 5 August 1999).

[36] NTA s 24JB.

[37] NTA s 24IA.

[38] NTA s 24KA.

[39] See the definition of ‘river’ in Water Act 1912 (NSW) s 4; Bropho v Ball (Unreported, Federal Court of Australia, Carr J, 1 February 1997).

[40] See, eg NSW Department of Land and Water Conservation, Sydney, White Paper: A proposal for updated and consolidated water management in NSW (December 1999) 23.

[41] NSW Department of Land and Water Conservation, above n 40, 9.

[42] See Benjamin A Kahn, The Legal Framework Surrounding Maori Claims to Water Resources (1999) 35 Stanford J of International Law 49, 150; Peter W Sly & Cheryl A Maier, Indian Water Settlements and the EPA (1991) J of Natural Resources and Environment 23; John A Falk-Williams, The Use of Negotiated Agreements to Resolve Water Disputes (1988) 28 Natural Resources J 63.

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