Douglas, Paula --- "Healthy Rivers and Indigenous Interests" [2004] IndigLawB 6; (2004) 5(29) Indigenous Law Bulletin 12

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Healthy Rivers and Indigenous Interests

by Paula Douglas

INTRODUCTION

"As the health of the river declines, Indigenous culture is eroded and diminished ... cultural and spiritual values are linked inextricably to environmental values". ¹

Since its establishment in 1995, the Healthy Rivers Commission (HRC) has undertaken independent public Inquiries in all major coastal rivers in NSW.

This paper describes Aboriginal consultation processes explored by the Commission and insights gained over eight years of independent Inquiries. It does not purport to speak on behalf of Aboriginal people, nor to present a comprehensive picture of their interests. Rather, it attempts to make a contribution, based on insights gained through public Inquiries and related literature. The Commission believes that these understandings will be carried forward in the new Natural Resources Commission into which it is being merged.

The paper proposes four principles that the Commission suggests should be considered by policy and law makers in a serious effort to advance Aboriginal rights and interests in healthy rivers

HEALTHY RIVERS COMMISSION CONSULTATION PROCESSES

As part of its public Inquiry process, the Commission is required to seek community and government views about appropriate river health goals and ways to achieve them, and to consult with all stakeholders potentially affected by its Inquiry recommendations.

The Commission used a combination of recommended approaches,² consistent with its level of resourcing and necessarily tight timeframes. It has tried, in each Inquiry, to engage directly with the local Aboriginal community, as well as through Aboriginal staff of relevant agencies and the NSW Department of Aboriginal Affairs. The Inquiries have demonstrated just how difficult it is for both local Aboriginal communities and the Commission to engage in dialogue on river health issues in terms meaningful to Aboriginal people's physical, spiritual and cultural needs. This question of ongoing effective dialogue must be further addressed in all facets of natural resource management. The approach should build on the insights gained from Commission Inquiries, as described in the following sections.

ABORIGINAL CONCERNS EXPRESSED TO THE HRC

Aboriginal people have expressed their concern about many river health issues to the Commission.³ Some are being addressed as part of the NSW water reforms and new arrangements for natural resource management; ⁴ others remain as challenges needing to be addressed in policy and law making.

THE NATURE OF SIGNIFICANCE AND THE IMPORTANCE OF ACCESS

Continued access to significant areas, species and activities is highly important to Aboriginal peoples. The 'importance/significance' of place is not limited to 'items' concerning cultural heritage. It spans matters of spiritual and utilitarian significance, including access to traditional foods, medicinal plants and fauna and flora, as well as 'cosmological' values associated with waterways and related landscape features.

The Commission has been advised that archaeological reports usually focus on physical evidence, but that many sites are important for their spiritual significance or as meeting places. They include 'song lines', 'dreaming tracks' that often cover great areas of land, and 'contact sites'⁵. For example, Botany Bay has significance to all Australian Aborigines as the 'first contact site'.⁶

Riverine corridors are important to Aboriginal people in terms of culturally significant trees, access to 'cobra' (a worm that lives in woody debris in rivers)and other cultural food and medicines. They have been described as "ribbons of relative abundance".⁷ Currently, access for traditional purposes and activities has generally been denied to Aboriginal people on freehold land, National Parks estates ⁸ and areas where commercial oyster leases exist.

CONFLICTING GOALS

Aboriginal people have had limited success in claiming rights over public-use lands and waterways. For example, Aboriginal people have submitted to the Commission that conflicts exist between management of areas for natural heritage and protection for Aboriginal heritage. More broadly, it has been alleged that areas assessed for natural heritage values are more likely to become reserves than to be provided to land claimants. Yet, development of Indigenous Land Use Agreements, under the Commonwealth Native Title Act 1993, before the determination of a claim, could provide for continuous Aboriginal use without a change in title. Similarly, conflicts have emerged between the goals of preserving native species in national parks and allowing hunting for traditional cultural/spiritual purposes.

COMMON ASPIRATIONS

Setting aside specific spiritual and cultural matters, the Commission has found that both Aboriginal people and the wider community want ecologically healthy rivers with appropriate levels of biodiversity, water that is safe to drink and swim in and that provides aquatic food that is safe to eat. All recognise, in one way or another, that a healthy river cannot exist in isolation from its catchment

On the other hand, Aboriginal people often have an inherent understanding that effective river management requires a whole-of-system approach, as advocated by the Commission in all of its Inquiries⁹. They have argued before the Commission, and at the Boomanulla Conference that, to date, natural resource agencies have not provided the whole-system management approach which has been the Aboriginal way for millennia. Aboriginal people do not relate to what they term "bit management". For example, they point out that, whilst those responsible for national parks may be assigned a lead role in protecting Aboriginal heritage, they do not generally have responsibility for mangroves, water and fish, all of prime importance to Indigenous interests and healthy rivers.

RECOMMENDED PRINCIPLES

The following four principles are recommended for consideration by Australian policy and law makers in advancing the rights and interests of Indigenous communities in rivers and other natural resources across the nation. ¹⁰

REAL ABORIGINAL PARTICIPATION IN FUTURE NATURAL RESOURCE MANAGEMENT

Independent forums should be established by government, which provide opportunities for Aboriginal people to demonstrate their interests in rivers and water, including preferred mechanisms for effective participation in natural resource management. Recommendations should then be carried forward to government for consideration and action.

The Commission's Inquiries, dialogue with Aboriginal people and literature reviews suggest that Aboriginal people would benefit from explicit recommendations to Government by independent forums. For example, it was claimed by one participant that "the more the matter is addressed by independent inquiries and other government processes the better, as no proposal will emerge in a vacuum"

The Commission broadly supports that view. It notes that many of the initiatives, at both the federal and state levels, operating outside 'the government system' tend to stall at the discussion paper stage, rather than resulting in formal submissions to government for decision.

In the relatively few instances where government has become involved, mostly as a result of legal process, there is no defined accountability mechanism to ensure implementation of key decisions. The NSW Indigenous Fisheries Strategy and Implementation Plan is a notable exception.

Numerous reports and inquiries have identified the need to improve Aboriginal participation in natural resource management including existing and new rural industries. For example, the Rural Industry Strategy identified means by which Aboriginal commercial interests could be developed. ¹¹

The challenge here is to determine how to facilitate effective Aboriginal participation in future management, including regional landuse planning processes. This is a challenge that will need to be addressed by authorities at the three levels of government in Australia, as well as policy and law makers with an interest in human rights and Aboriginal justice.

IDENTIFYING, RECOGNISING AND PROTECTING 'SIGNIFICANCE'

The range of Aboriginal interests in waters should be given clear legal and administrative recognition rather than being shaped by default by the complex outcome and interplay of court and administrative processes.

For example, the Healthy Rivers Commission recommended that all coastal lakes should be individually assessed to determine their sustainability in terms of future uses. In carrying out such assessments, the Commission recommended, and the NSW Government agreed, that a process must be introduced to identify and protect Aboriginal values and significance. The Government's 'requirements are set down in a Statement of Intent. The approach is designed to serve as a pilot for Aboriginal consultation and involvement as part of the Comprehensive Coastal Assessment process for the remainder of the coastal zone of NSW. It will doubtless assist in fulfilling the Government's decisions, as part of its Coastal Protection Package, to investigate and enhance consultation with Aboriginal communities and to improve their participation in coastal management. ¹²

The broader challenge for policy and law makers lies in introducing such requirements into land use planning and controls, including in the exercise of powers by agencies, councils and catchment management bodies.

INCORPORATING INDIGENOUS INTERESTS IN WATER SHARING

Processes aimed at developing and operationalising formalised water sharing arrangements and plans should include tangible measures to recognise and protect Aboriginal rights and interests, including the spiritual, social and customary values of water. Aboriginal organisations must be represented and resourced to participate effectively in those processes. ¹³

Formalised arrangements for water sharing, such as the statutory-based Water Sharing Plans developed in NSW, customarily encode arrangements that operate for a considerable numbers of years. Any failure to address Indigenous interests in this process can therefore further institutionalise inequities for Aboriginal people. Uncertainty regarding water rights and interests of irrigators must not be allowed to diminish or overwhelm the introduction of clear measures to address the needs of Aboriginal people. For example, just as existing irrigators' past association with water access provides a generally recognised expectation, equity suggests that so too should Indigenous association over the last 40,000 years be recognised as providing a legitimate expectation for Aboriginal people.

REFINING EXISTING LEGISLATION TO ADVANCE ABORIGINAL INTERESTS

Existing legislation should be reviewed, refined and redrafted with a view to establishing how it could better recognise Aboriginal rights and interests in water and rivers.

The objects of the Water Management Act 2000 (NSW) provide for water sources to be managed for, among other things, "benefits to Aboriginal people in relation to their spiritual, social, customary and economic use of land and water". Despite those clearly articulated objects, the legislation does not clearly identify and recognise Aboriginal rights and interest in the river systems, leaving that instead to be determined in competition with other users who frequently already have their own interests clearly identified. All of those interests are therefore in competition one with the other. Such processes become a barrier if Aboriginal people are not adequately resourced to put forward their views and to negotiate.

In light of its many Inquiries, the Commission believes that it is important that barriers to access by Aboriginal people to land for customary purposes be removed. A number of mechanisms are available, including Indigenous Land Use Agreements (ILUAs) under the Native Title Act 1993, strengthening the Western Lands Act 1901 (NSW), and the preserving or strengthening of access provisions under Crown tenures, state reserves and travelling stock routes. ¹⁴ ILUAs could be used as the basis for co-operative management in ensuring that Aboriginal people have access to estuaries, or Aboriginal people could be invited to identify important areas along rivers, estuaries and the coast, in co-operation with management of national parks, with a view to securing priority access for cultural and traditional purposes.

A further challenge for policy and law makers includes how to extend the few Memoranda of Understanding between consenting landholders and Aboriginal communities and to gain greater governmental facilitation of the process. For example could riparian access be made a condition of subdivision of riparian lands?

Nationwide, there is much legislation which, if used imaginatively, would further advance Aboriginal rights and interests in water and rivers. Law makers might consider how amendments to existing legislation could ensure that Aboriginal people are recognised as the owners of their own cultural heritage and given greater control over it in riverine environments. ¹⁵

CONCLUSION

After eight years of independent public Inquiries into river health, the Commission is convinced that Aboriginal rights and interests in healthy rivers and catchments should be explicitly addressed in new approaches to natural resource management.

It is becoming increasingly accepted that Aboriginal knowledge and values would often improve the management of lakes, rivers and their catchments. To achieve that result, a useful starting point would be government adoption of the eleven principles set out in the Boomanulla Statement as a framework by which Aboriginal participation in resource management becomes more effectively implemented through legislative reform. ¹⁶ If Aboriginal people are more fully involved in natural resource management in accordance with those principles, they would be empowered to enter into productive partnerships and be better equipped to exercise their right to self-determination.

The Commission's Inquiries have demonstrated the importance of specific strategies and protocols to shape further negotiations about both land and water management and their allocation. Such strategies and protocols must include mechanisms for effective Aboriginal participation in natural resource management, and they must recognise that Aboriginal rights and interests in water and healthy rivers cannot be separated from their interests in land, economic self-determination, cultural heritage and spiritual traditions.

This article has been reprinted from proceedings of 5th Australasian Water Law & Policy Conference, Melbourne 27-28 November 2003.

Further details of the conference can be found at www.countryconferences.com.au

Paula Douglas is the Assistant Commissioner of the NSW Healthy Rivers Commission

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FOOTNOTES

^[1] Farley Consulting Group, Indigenous Response to the Living Murray Initiative, (2003) 18 Report on consultation with Indigenous communities undertaken for the Murray Darling Basin Commission

^[2] Navin, K. & Officer, K, Towards an Aboriginal consultation strategy: Clarence River Catchment Inquiry Background Paper. (1998) prepared in advance of the Clarence Inquiry. See Healthy Rivers Commission. Independent Inquiry into the Clarence River System Final Report, November 1999.

^[3] List includes issues identified by Navin & Officer (1998).

^[4] For example, as part of the native vegetation planning process, the NSW Government (2002) released maps detailing plants of importance to inland Aboriginal people that were developed in a series of workshops with Aboriginal elders. The listings involve over 100 species found over 30,000 km². Plants are identified by their common and scientific names but are also categorised by how they are used - for ceremonies, decoration, food, habitat, implements, identifying seasons, medicine, shelter, mythical association or women's use. See NSW Government Draft Aboriginal cultural vegetation maps, Media Release Sydney, 26 August 2002.

^[5] Where Aboriginal people had early contact with European settlers

^[6] Williams, Shayne, Indigenous Perspective on Botany Bay. 2003, Presentation to the inaugural meeting of the Botany Bay Strategy Advisory Committee. DIPNR April 2003. Development of the Strategy forms part of the Government decision on the HRC's Georges River - Botany Bay Inquiry. See Healthy Rivers Commission. Independent Inquiry into the Georges River-Botany Bay System Final Report, September 2001

^[7] Behrendt J. & Thompson, P, The recognition and protection of Aboriginal interests in NSW rivers, (2003) Prepared for the NSW Healthy Rivers Commission by Chalk and Fitzgerald. Lawyers and Consultants, Sydney

^[8] It has been claimed that the current NPWS legislation (through plans of management) provides for Aboriginal communities to request that certain parts of the estate be set aside for Aboriginal use and access only. However, Aboriginal communities are not always aware of such provisions and so do not take up the opportunity, neither, it has been claimed, does NPWS initiate action in that regard.

^[9] See for example, Healthy Rivers Commission, 2000a. Securing Healthy Coastal Rivers: A Strategic Perspective, April 2000

^[10] These principles have been formulated from a number of sources including the Commission's independent public Inquiries, literature review and consultancies, especially Behrendt and Thompson 12003).

^[10] Healthy Rivers Commission, 2002a, Independent Inquiry into Coastal Lakes Final Report. May 2002

^[11] Behrendt and Thompson (2003) provide further detail

^[12] HRC (2002a)

^[13] For example, in its Hunter Inquiry. Healthy Rivers Commission. 2002b. Independent Inquiry into the Hunter River Final Report, May 2002, the Commission recommended that an established indigenous group, the Hunter Aboriginal Consultative Committee, be appropriately resourced to provide such input

^[14] Behrendt and Thompson (2003) provide detail.

^[15] Behrendt and Thompson (2003) also note the Importance to indigenous people of passing legislation that protects the full range of Aboriginal cultural heritage under Aboriginal control, with special protection given to Aboriginal remains, so they are not simply included as 'objects'.

^[16] The Commission recommended this in its North Coast Rivers Inquiry (HRC 2003). HRC. 2003, Independent Inquiry into North Coast Rivers Final Report Healthy Rivers Commission. March 2003