Pic: A gathering of the Murray Lower Darling Rivers Indigenous Nations on the Murrumbidgee (courtesy MLRDIN)
Rivers, wetlands, waterways, springs and estuaries play important and powerful roles in the ancient places and cultures of Australia. They are frequently central to creation stories and to Aboriginal law/lore. Not only was this knowledge and law profoundly affected by invasion and colonisation, but it was also essentially ignored in Australia’s adoption of English water law and then as water law developed under colonial, State and Commonwealth governments. Native title may have remedied this situation in part in some places, but in southeastern Australia recognition of Aboriginal rights and interests in water has been very limited, through native title or in other ways. Some initiatives, such as the Traditional Owners Settlement Act, have sought to move Aboriginal recognition forward in Victoria.
A review of the Commonwealth Water Act is presently underway and this review process included the opportunity for groups, including Aboriginal traditional owner organisations, to submit ideas and views about the state of Aboriginal recognition in water law in the Federal sphere and about ways to advance recognition.
In this brief paper, we have considered key themes from those submissions and undertaken a legal analysis of them. We look at the legal mechanisms Aboriginal organisations (among others) are advocating to advance recognition within water law at the Federal level and provide commentary on these innovative and important ideas and debates. The purpose of the paper is to help advance the understanding of what is and isn’t legally possible (and where a policy ask isn’t legally possible, what a good alternative might be). Although there are some complexities in this area, there are many legal measures that can be adopted to better recognise Aboriginal water rights if governments are committed to doing so.