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Poh Ling Tan Sue Jackson19.02.2009
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Poh Ling Tan Sue Jackson19.02.2009

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Poh-Ling Tan and Sue Jackson on Water Access and Planning, Indigenous Water Planning Forum, National Water Commission, February 2009

Poh-Ling Tan and Sue Jackson on Water Access and Planning, Indigenous Water Planning Forum, National Water Commission, February 2009

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  • 1. Indigenous access to water and participation in water planning under the National Water Initiative Sue Jackson , CSIRO Sustainable Ecosystems Poh Ling Tan , Griffith University
  • 2. Outline
    • NWI: Indigenous related elements ( SJ)
    • Water planning framework ( PLT )
    • Legislative provisions for Indigenous access and participation ( PLT )
    • NWI implementation ( SJ )
    • Conclusions
  • 3. 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
  • 4. 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
  • 5. 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
  • 6.
    • Discretionary terms
    • Little guidance to water planners – how, what, when
    • Limited definition of Indigenous interests, esp. commercial interests
    Qualifications
  • 7. 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
  • 8. Water planning framework - QLD
  • 9. NSW macro planning framework
  • 10. 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
  • 11. 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
  • 12. 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
  • 13. 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.
  • 14. 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
  • 15. 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
  • 16. 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
  • 17. 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
  • 18. 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?
  • 19. NWI implementation: evaluation
    • No performance indicators, standards, targets
    • Implementation reports lack detail
  • 20. 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