Indigenous access to water and participation in water planning under the National Water Initiative Sue Jackson , CSIRO Sustainable Ecosystems Poh Ling Tan , Griffith University

Outline NWI: Indigenous related elements ( SJ) Water planning framework ( PLT ) Legislative provisions for Indigenous access and participation ( PLT ) NWI implementation ( SJ ) Conclusions

NWI: Indigenous related elements ( SJ)

Water planning framework ( PLT )

Legislative provisions for Indigenous access and participation ( PLT )

NWI implementation ( SJ )

Conclusions

1. National Water Initiative (NWI) NWI recognises special character of Indigenous interests in water NWI objective: meet Indigenous needs of access & management Key mechanism is water planning Indigenous people not involved in negotiations

NWI recognises special character of Indigenous interests in water

NWI objective: meet Indigenous needs of access & management

Key mechanism is water planning

Indigenous people not involved in negotiations

NWI implementation tasks Incorporate Indigenous social, spiritual and customary objectives in planning Take account of native title rights Account for water allocated to native title holders for traditional cultural purposes Include Indigenous representation in planning

Incorporate Indigenous social, spiritual and customary objectives in planning

Take account of native title rights

Account for water allocated to native title holders for traditional cultural purposes

Include Indigenous representation in planning

Other NWI provisions Water plans: statutory basis for environmental and other public benefit outcomes, inc. Indigenous and cultural values (cl. 25 and schedule B (ii)). Plans to ‘describe the uses and users of water, including Indigenous water use’ (Schedule E). Protection of Indigenous heritage values to guide water trading rules (Schedule E). Indigenous knowledge

Water plans: statutory basis for environmental and other public benefit outcomes, inc. Indigenous and cultural values (cl. 25 and schedule B (ii)).

Plans to ‘describe the uses and users of water, including Indigenous water use’ (Schedule E).

Protection of Indigenous heritage values to guide water trading rules (Schedule E).

Indigenous knowledge

Discretionary terms Little guidance to water planners – how, what, when Limited definition of Indigenous interests, esp. commercial interests Qualifications

Discretionary terms

Little guidance to water planners – how, what, when

Limited definition of Indigenous interests, esp. commercial interests

2. Water planning framework To note stages of planning Preplanning/technical assessment Draft plan development Review/consultation Community engagement can occur at all 3 stages Note whether there is formal mechanism provided in the legislation for Indigenous engagement

To note stages of planning

Preplanning/technical assessment

Draft plan development

Review/consultation

Community engagement can occur at all 3 stages

Note whether there is formal mechanism provided in the legislation for Indigenous engagement

Water planning framework - QLD

NSW macro planning framework

Water planning framework: NT Water Advisory Committee ( WAC ) formed WAC skills development Draft Plan developed Draft Plan released for broader public consultation WAC undertakes broader community consultation Consideration of submissions by Department in consultation with WAC Department amends draft Plan as required Minister’s Plan Water Control District declared Consultation with WAC Terms of Reference

3. Legislative provisions for Indigenous access and participation Do objectives of water legislation refer to provision of benefits to Indigenous people? Statement of objects are important especially where particular legislative provisions are ambiguous. This is an established principle of statutory interpretation. For example: Full Court, Supreme Court Tasmania in Llewellyn v Clyde Group 2008 NSW Court of Appeal in Minister for Planning v Walker [2008] NSWCA 224 reinforces the importance of principles of ESD and statement of objects of legislation. These are relevant considerations only if specifically provided for as such in legislation. Nature Conservation Council of NSW Inc v The Minister Administering the Water Management Act 2000 [2005] NSW

Do objectives of water legislation refer to provision of benefits to Indigenous people?

Statement of objects are important especially where particular legislative provisions are ambiguous. This is an established principle of statutory interpretation.

For example:

Full Court, Supreme Court Tasmania in Llewellyn v Clyde Group 2008

NSW Court of Appeal in Minister for Planning v Walker [2008] NSWCA 224 reinforces the importance of principles of ESD and statement of objects of legislation. These are relevant considerations only if specifically provided for as such in legislation.

Nature Conservation Council of NSW Inc v The Minister Administering the Water Management Act 2000 [2005] NSW

Legislative provisions contd. Do water planning processes legislatively require Indigenous participation in consultative committees? Regulatory design is important “ Whether or not a statutory decision-maker can be said to have taken into account irrelevant considerations usually requires attention to the whole of the legislative scheme and … involves an assessment of the actual decision-making process.” Arnold v Minister Administering the Water Management Act 2000 [2008] NSW Court of Appeal, Spigelman CJ

Do water planning processes legislatively require Indigenous participation in consultative committees?

Regulatory design is important

“ Whether or not a statutory decision-maker can be said to have taken into account irrelevant considerations usually requires attention to the whole of the legislative scheme and … involves an assessment of the actual decision-making process.”

Arnold v Minister Administering the Water Management Act 2000 [2008] NSW Court of Appeal, Spigelman CJ

Legislative provisions contd. Are there special mechanisms for allocating water for Indigenous needs? This is important especially Where the ‘recognition space’ for native title is limited At present native title only provides domestic and non-tradeable use If catchments are overallocated and there is intense competition for water, Indigenous interests are overlooked as existing use is relatively better specified.

Are there special mechanisms for allocating water for Indigenous needs?

This is important especially

Where the ‘recognition space’ for native title is limited

At present native title only provides domestic and non-tradeable use

If catchments are overallocated and there is intense competition for water, Indigenous interests are overlooked as existing use is relatively better specified.

4. Implementation - participation Representation on water advisory committees Some Indigenous Reference Groups No formal consultation in Tas and ACT Some studies of values and consultations Is it working? No evidence of evaluation Evidence that advisory/consultation approach is inadequate e.g. NT

Representation on water advisory committees

Some Indigenous Reference Groups

No formal consultation in Tas and ACT

Some studies of values and consultations

Is it working? No evidence of evaluation

Evidence that advisory/consultation approach is inadequate e.g. NT

Implementation – access to water Indigenous water use rarely assessed If attended to, not related to flow or quantified Tendency to include customary needs in environmental flows inadequate in sustaining environment ecological criteria are too narrow

Indigenous water use rarely assessed

If attended to, not related to flow or quantified

Tendency to include customary needs in environmental flows

inadequate in sustaining environment

ecological criteria are too narrow

Implementation – access to water con’t No comprehensive impact assessment – impairment of native title rights – but consultation over licences Jurisdictions appear to be waiting for positive determinations before allocating water Water has been provided to meet native title requirements (current and potential) in NSW (WSPs) and NT

No comprehensive impact assessment – impairment of native title rights – but consultation over licences

Jurisdictions appear to be waiting for positive determinations before allocating water

Water has been provided to meet native title requirements (current and potential) in NSW (WSPs) and NT

Access to water – con’t No agreed method for determining native title allocations e.g. land area vs. per capita domestic consumption Differences in purpose – domestic use vs. commercial Native title agreements – Lake Condah? No national account of Indigenous water allocations

No agreed method for determining native title allocations e.g. land area vs. per capita domestic consumption

Differences in purpose – domestic use vs. commercial

Native title agreements – Lake Condah?

No national account of Indigenous water allocations

Special measures NSW’s specific purpose licences 1 cultural access licence 0 commercial licences Queensland Indigenous Reservations in Wild Rivers areas How transparent, accessible and equitable are current measures?

NSW’s specific purpose licences

1 cultural access licence

0 commercial licences

Queensland Indigenous Reservations in Wild Rivers areas

How transparent, accessible and equitable are current measures?

NWI implementation: evaluation No performance indicators, standards, targets Implementation reports lack detail

No performance indicators, standards, targets

Implementation reports lack detail

Conclusions NWI provides basis for participation and access to water for non-consumptive uses Water planning is key process. Need improvement. Statutory review required. Some jurisdictions have policies to improve access for commercial purposes, others express interest in reform Cumulative effect of allocations may impair native title Policy ‘infrastructure’ is poorly developed Different approaches across Australia Little monitoring and evaluation, no performance indicators No targets and standards for improved access

NWI provides basis for participation and access to water for non-consumptive uses

Water planning is key process. Need improvement.

Statutory review required.

Some jurisdictions have policies to improve access for commercial purposes, others express interest in reform

Cumulative effect of allocations may impair native title

Policy ‘infrastructure’ is poorly developed

Different approaches across Australia

Little monitoring and evaluation, no performance indicators

No targets and standards for improved access