Chapter Four - The Limited Recognition of Indigenous Water Rights in Australia

Summary

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.