Water
9
Water
Aboriginal peoples in Australia and their spiritual relationship with waterscapes
In Aboriginal culture in Australia, there is no clinical distinction between the land and water, either of water that flows over the land, rests upon it or flows beneath it.1 Land and water interface as ‘equal components of “country”, all require care and nurturing, and for which there are ongoing cultural responsibilities’.2
The contrast of Anglo-Australian definitions of what people refer to as the ‘environment’ is meaningless without direct reference to Aboriginal peoples. To refer to the land and the waters in Australia as simply an evolution of natural processes blatantly ignores the creation stories and Aboriginal law that underpin Aboriginal belief for their existence. A rock is not a rock. A waterhole is not just a waterhole. The meaning of Aboriginal life enriches the qualitative understanding of cultural landscapes and waterscapes in Australia.
In Millirrpum v Nabalco Pty Ltd, Blackburn J said:
There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land, and everything that exists on and in it, are organic parts of one indissoluble whole.3
With the advent of Native Title legislation in 1993, the interpretation and evaluation of Aboriginal law and the spiritual connection of Aboriginal peoples in Australia has been a constant reminder that the value systems of Aboriginal peoples and non-Aboriginal Australia are generally in flux and represent long-standing cultural dichotomies in the way in which natural resources management and cultural difference is approached.
Anthony McEvoy, an Indigenous barrister, states:
We reside in a world where our river systems are managed in a policy framework designed for extractive purpose [and] there is no room for spiritual considerations and it would be naïve for Aboriginal people to think such a framework has any ability to protect the spiritual aspects of the rivers. It would also be naïve to think that heritage protection, native title or land rights law can protect those spiritual interests.4
Indigenous water rights
International standard setting
Unlike Canada, the USA and New Zealand, among others, Australia does not have a domestic treaty, Bill of Rights or Human Rights Act to provide Aboriginal peoples in Australia with legal certainty or a formalised negotiation process at law. Aboriginal Australia has to rely on political ‘goodwill’ and the third-party status of natural resources management. The few successful Native Title applicants that have basic landholder rights are not representative of the rest of Aboriginal Australia. Certainty and political favour are not aligned with Aboriginal issues.
International laws have had a small, but significant, impact on attaining rights and interests to land and waters. The length of Native Title proceedings in the courts is testimony to Aboriginal peoples’ persistence, not to the provision of a ‘user-friendly’ Native Title process. Given the plethora of international law instruments and committees to drive necessary change, there is still an enormous gap between polity and reality.
Indigenous peoples throughout the world share in the common experiences of Aboriginal Australians. The Indian Treaty Council at the United Nations Permanent Forum of Indigenous Issues, noted:
Indigenous peoples are witnessing the increasing scarcity of fresh water, and the lack of access that Indigenous communities and other life forms such as the land forests, animals, birds, plants, marine life, and air have to waters, including oceans … Indigenous peoples are witnessing governments creating commercial interests in water [that] lead to inequities in distribution and prevent access to the life giving nature of water … Water is being treated as a commodity and as a property interest that can be bought, sold and traded in global and domestic market-based systems.5
The articulation of Indigenous people’s human rights is encapsulated in the draft Declaration on the Rights of Indigenous Peoples, in the International Covenant on Economic, Cultural and Social Rights, and the International Covenant on Civil and Political Rights, for example. The Convention on Biological Diversity makes reference to the rights of the land and waters of Indigenous peoples. Further, the Third World Water Forum 2003 produced a Declaration, which recognises:
… the special relationship that Indigenous peoples have with water … the environmental threats to water and the right of Indigenous peoples to make decisions at all levels regarding water.6
Australia has ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Racial Discrimination Act (RDA) (Cth) 1975 was a result of the parliamentary process. Although it is a difficult matter to legislate and diffuse conditioned racialised belief systems, the RDA 1975 has positively impacted upon Native Title provisions generally. It is yet to be applied in the courts in respect to the new water reforms in Australia and it is far from clear that this will ever happen.
The RDA 1975 creates an obligation on governments to deal with Indigenous interests in a non-discriminatory manner and agencies must exercise their power in a manner that is consistent with it. For example, s 7 of the Native Title Act (NTA) 1993 provides that the NTA 1993 is to be ‘read and construed’ subject to the provisions of the RDA 1975.7 The restriction in the allocation of water and access to water may well muster a new legal paradigm that may see the application of the RDA 1975. Further, there may be a strong case for ‘special measures’ in light of the Schedule in the RDA 1975 pursuant to Article 1 (4) of CERD, which states:
Special measures taken for the sole purpose of securing adequate advancement of certain racial and ethnic groups or individuals requiring such protection as may be necessary …8
The rights of Indigenous peoples in international law are expressed, for example, in Article 27 of the ICCPR as ‘the right to enjoy culture in community with other members of the group’.9 The United Nations committee of CERD recommended that:
… state parties recognize and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources …10
It is interesting to note that a wide variety of waterscapes such as wetlands have been referred to in the Convention on Wetlands of International Importance (RAMSAR Convention) to ‘constitute a resource of great economic, cultural, scientific and recreational value’. Aboriginal Australians would argue that wetlands are the ‘kidneys’ of the waterscape and filter the floodwaters that allow the good health of the water and the supply of food sources for Aboriginal communities.
The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and its regulations embody elements of the RAMSAR Convention and the Convention on Biodiversity, but the instruments of international law are mute in acknowledging the primary position of Indigenous peoples within the natural world and signify a passive recognition of Aboriginal peoples in Australia that does not pave the way for any ‘practical reconciliation’ of past or present inequities in respect of Aboriginal Australia. It strips away the intense and ongoing interrelationship of Aboriginal people with how and why the lands and waters and all living things were made.
From an Aboriginal perspective, a ‘cultural significance’ does not interpose with commercial exploitation or non-Aboriginal science. Materialism within a spiritual relationship is an uneasy bedfellow, as ethics is with corporate growth.
The ecological sustainable development of Aboriginal waterscapes and cultural landscapes hold ‘intergenerational equity’, which should be maintained as a living spiritual inheritance valued by every Australian, and not objectified as a historic museum piece. Water management defines Aboriginal creation of water and land in words such as ‘ecology’, ‘biodiversity’, ‘culture’ and ‘heritage’, ‘environmental flows’, ‘natural flood regimes’, ‘native vegetation’ or ‘native flora’. The categorisation of Aboriginal spiritual lands and waters are narrowly dissected into sectors of a whole. In spite of international law, Aboriginal peoples in Australia do not enjoy the global fruits of conventions or draft declarations. A library of research reports recount continued racial disadvantage.
Native Title recognition
The rights and interests of Aboriginal and Torres Strait Islanders to land and waters have been recognised in the Native Title Act (NTA) 1993 within the context of customary non-commercial use. The Native Title legislation and the rigours of the Australian legal system have made progress in reclaiming Aboriginal land and waters highly speculative. Current national and state water reforms have commodified water (for example, in water trading), hence the escalation of water pricing, which may obstruct or extinguish a Native Title claim to customary Aboriginal waters.
The cultural practice of Aboriginal peoples in orally passing down knowledge is considered as hearsay in evidence and the demands for physical sites connecting to unbroken customary practice11 is no meagre hurdle given the wide-ranging government policies that have controlled every aspect of Aboriginal communities and discredited Aboriginal knowledge.
In Mabo v Queensland (No 2), the recognition of Native Title in Australian law was indisputable:
Native title has its origin in the traditional laws acknowledged and the customs observed by the Indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common tenure but it is recognized by the common law. There is, therefore, an intersection of traditional laws and customs with the common law.12
The NTA 1993, s 212 confirms the Crown’s right to use and control the flow of water. Section 211 preserves the right of Native Title holders to fish or engage in other traditional activities and limited rights of access to engage in traditional activities, although the priority of the environment and scientific research is higher than Indigenous interests. The definition of ‘waters’ in the NTA is defined as ‘a sea, river, lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters or bed or subsoil under or airspace over any waters or the shore, or subsoil under or airspace over the shore, between the high and low water mark’.
The word ‘traditional’, which is defined in the NTA 1993 and qualified throughout the Act, maintains a view of Aboriginal communities in Australia as if existing in a colonial time warp within which spears and hairnets are acceptable and no contemporary adaptation is tolerated. However, the body of knowledge handed down in the Aboriginal family to the next generation does not exist in a vacuum, and this limited view upon which Native Title claims are considered is also fettered by the conversion of leases in perpetuity, Crown land conversions to freehold title, the proposed planning of public purpose areas, and a considerable amount of extinguished title to land and waters.
Among the small percentage of successful Native Title claims, the current negative reaction by West Australian and federal governments and other non-Aboriginal stakeholders to the successful Nyoongar case in Perth, Western Australia, is extraordinary. In that case, Native Title was granted in the Federal Court for the first time over a small area of a city, excluding offshore islands and land and waters below the low-water mark13.
The 1998 amendments to the NTA 1993, in particular, the changes to water rights under which Native Title claimants now have a procedural ‘right to comment’ in place of ‘a right to negotiate’ as in the NTA 1993, exhibits the ‘watering down’ and the entrenched aversion to the equitable sharing of Aboriginal cultural areas. In corporate Australia, the hub of negotiation is a key element in bargaining a commercial deal; however, Aboriginal Australians appear to have a modicum of third-party rights, and any legal interest is whittled away by protracted Native Title appeals and legislative amendments to the NTA in order to further limit future management and cultural connection to the land and waters. Native Title decisions as to waters have not faired well.
As reported by the former Aboriginal and Torres Strait Islander Commissioner:
The grant of future commercial and other interests regarding the use of waters or water resources always take precedence. The effect of these provisions is that governments will be able to grant fishing licences and leases, and permits and authorities in respect of waters without any consideration of the effect that these grants may have on native title interests…
In the Water Management Act 2000 (NSW), a Native Title holder is legally entitled to take and use water in the exercise of his or her customary practice, and does not require a water access licence.14 However, the maximum amount of water that Native Title holders are allowed to take is regulated by law.15
To date, the majority of Native Title claims have been over coastal waters with few claims over inland waters. In respect to a Native Title claim on inland waters, the extent of legal recognition in law is unclear in some circumstances.16 The NTA 1993 and the Native Title Amendment Act 1998 require the Native Title applicant to demonstrate that traditional laws and customs confer entitlement and responsibilities in relation to water, including ‘where water is seasonally scarce, knowledge of seasonal variation and the capacity to support large communities’.17
The Federal Department of Environment and Heritage contends that:
… it is likely that the majority of native title rights granted in respect to inland waters will be confined to activities such as hunting, fishing, gathering, cultural and spiritual activities for the purpose of satisfying the personal, domestic or non-commercial needs of native title holders … the vast majority of claims the Crown will retain the existing right to use, control and regulate the flow of water.18