Indigenous water

The Australian and New Zealand guidelines for fresh and marine water quality, released in 2018 (see Water quality guidelines), provide an introduction to the relationship between Indigenous people and water: ‘Water is core to life for Aboriginal and Torres Strait Islander peoples. Protecting and managing water is a custodial and intergenerational responsibility’ (DAWR 2018). If the cultural and spiritual values of water are sustained by providing water that is sufficient in both quantity and quality, many other components of Indigenous life will be healthy. For example, Australian Indigenous people have respected and known the worth of groundwater for thousands of generations. Groundwater sources were protected with the highest level of traditional law; sometimes only certain members with the highest status in a tribe may access these places (Moggridge 2020).

Native title legislation, and Commonwealth, state and territory cultural heritage and water legislation and agreements (including the National Water Initiative), provide for the recognition and management of Indigenous interests in water. However:

Indigenous people across Australia are some of the most disenfranchised and underrepresented groups in water management and ownership. Reform of Australian water management has largely failed to recognise and incorporate Indigenous values, connections, knowledge and rights. This issue is complicated by the many situations where Indigenous people’s traditional lands run across state and territory borders, resulting in diminished rights and access to waters. Bradley Moggridge, Kamilaroi man

Water and Indigenous people

In the 2007 Echuca Declaration (MLDRIN 2010), the Murray Lower Darling Rivers Indigenous Nations powerfully assert the importance of water to all aspects of Indigenous people’s lives:

Recognising and affirming that water has a right to be recognised as an ecological entity, a being and a spirit and must be treated accordingly. For the Indigenous Nations water is essential to creation and many of Dreaming and other ancestral beings are created by and dwell within water. Water is a living being and should be treated accordingly. Many of our ancestral beings are created by and live in water.

The research project paper ‘A pathway to cultural flows in Australia’ (MLDRIN et al. 2018) summarises the centrality of water to Indigenous people:

For First People, water is a sacred source of life. The natural flow of water sustains aquatic ecosystems that are central to our spirituality, our social and cultural economy and wellbeing. The rivers are the veins of Country, carrying water to sustain all parts of our sacred landscape. The wetlands are the kidneys, filtering the water as it passes through the land. First Nations Peoples have rights and a moral obligation to care for water under their law and customs. These obligations connect across communities and language groups, extending to downstream communities, throughout catchments and over connected aquifer and groundwater systems.

In his statement for the 2018 South Australian Murray–Darling Basin Royal Commission (Bates 2018), Barkandji Elder and knowledge holder Uncle Badger Bates spoke of the Baaka/Barka as inseparable from the lives and heritage of his people:

Our Barka means everything to us, it is our mother. It is who we are. We take our name from it, Barkandji means people belonging to the Barka. The Barka was created when Kuluwarra let the Ngatji (Rainbow Serpent) out of his waterbag up near Bourke, and the Ngatji lives in it still. Thirri also shaped the channel, bends and islands of the river after the Ngatji went thru with the water. The Ngatji looks after us and we have to look after it, it is our traditional job to look after the Ngatji and the river and the other surface and subsurface waters of the Barka and its floodplains. The Barka gives us healthy food and medicine, it gives us wood to make our artefacts, reeds to weave, it is where we go as families to swim, boat, camp, picnic, fish, go yabbying, and prepare and cook our traditional food. It is where we relax and enjoy our homeland … It is where we do our artwork, take photos, make videos, make songs and dances. We walk along the river and see where our ancestors cooked mussels or cut out a coolamon or a canoe, and we connect with them and use this to interpret and understand our landscape. For example, a shell midden means there is a stony bank in the river where the mussels live (this might be under water so you can’t see it), and then you know that the deep bend up or down from the shell midden is where the cod will be hanging out ’cause they eat the mussels. So, you know where to put your cod line in. We have many stories like this. The river is our memory, we walk along it and remember our history and our ancestors by looking at the marks and places.

Healthy water is central to Indigenous life, including culture, Country and people (Figure 25). Without healthy water, the 3 aspects will be in decline.

The Indigenous estate, including water landscapes, includes some of the most biodiverse terrestrial and aquatic environments, some of which support threatened species. Leiper et al. (2018) found that at least 60% of the 1,574 threatened species listed under the Environment Protection and Biodiversity Conservation Act 1999 across many taxa occur on Indigenous estates, including Indigenous Protected Areas, areas under land claims or native title, and co-managed country. These environments include nationally and internationally important and significant wetlands, riparian zones, deserts, forests, reefs, rivers, billabongs, lagoons and waterways.

The Australian and New Zealand guidelines for fresh and marine water quality state that the ‘cultural and spiritual values may relate to a range of uses and issues, including spiritual relationships, language, song lines, stories, sacred places, customary use, the plants and animals associated with water, drinking water, and recreational or commercial activities’ (DAWR 2018). Despite the significant political and social change that has affected Indigenous communities in the past 200 years, the sacredness of water remains formative in shaping Indigenous identity and values (Marshall 2014, Marshall 2017).

Water-dependent cultural values include (Moggridge et al. 2019):

• creation sites and stories linking with spiritual significance along a songline or dreaming track
• language (connects culture to place with water); when that water disappears, the language may disappear with it
• resource sites along rivers, within wetlands and next to natural springs; such sites supply traditional bush foods (hunting and gathering sites), medicines and reeds for weaving
• resource sites for artefacts, tools, art and crafts (e.g. water for axe head preparation)
• sustaining a cultural economy (trade of food, tools, weapons, access, water)
• ceremonial sites or meeting sites (always in close proximity to water)
• gender-specific sites linked through language, stories or songs – men’s and women’s business
• burial places and sites (known and unknown); many Aboriginal peoples’ ancestors are buried in soft riverine sand adjacent to watercourses
• surface-water- and groundwater-specific values (may be both); some rivers are reliant on groundwater flows or baseflow, and some rivers discharge straight into groundwater aquifers
• teaching sites (passing on knowledge), which are passed on from one generation to another; cultural indicators in the environment suggest the right time to catch or harvest a certain species; the flowing of a river may show that it is time to pass on that knowledge
• cultural-specific environmental conditions to sustain totemic species or cultural keystone species; water that is of sufficient quality and quantity at the right time will attract these species
• massacre sites where frontier battles occurred with traditional groups, usually alongside water places
• sites that contain physical or tangible evidence of occupation (middens, campsites, scarred and carved trees, stone arrangements, fish or eel traps, and tribal boundaries); a living scarred or carved tree still depends on water.

Waterways traditionally provided language boundaries between Indigenous groups and were also often sites of spiritual significance, used for gathering and ceremony. Many cultural dreaming stories are linked to water sources; as a result, Indigenous people have traditionally had custodial roles and obligations for the management of water (Waterwise Queensland 2021).

Water continues to play a significant role in Indigenous people’s lives and culture. Its value remains high for critical human needs such as drinking water, maintaining cultural obligations, recreational activities, economic opportunities and environmental outcomes. This has been the case for the past 65,000 years or more of Dreaming. Australia’s climate and landscapes make it the driest inhabited continent on Earth, and survival of Indigenous people for so long in this country is significant in their histories. Water sits high on political agendas and as a commodity, yet Indigenous people are being left behind and out of decisions that affect water management.

Pressures on Indigenous water

A range of pressures specifically affect Indigenous water values and interests. These include pressures caused by humans and human activity, as well as natural events. The competing pressures on water come from areas including (in no particular order):

• critical human need (drinking water)
• domestic use and sewage
• recreational uses and primary contact (swimming, diving)
• mining (coal-seam gas, iron ore and coal)
• introduced and pest species
• climate change (rising sea levels, rising temperatures and changing rainfall patterns)
• agriculture (overextraction, illegal taking of water, soil degradation, and nutrient and pesticide run-off)
• industry (point-source pollution)
• government policies and legislation (water plans).

For many of these, the pressures are not only a concern for Indigenous people in Australia but a national or global issue (e.g. climate change). But changes to inland water and Country have far more impact on Indigenous communities who remain and return to Country than on non-Indigenous people. For example, the Torres Strait islands are under threat from rising sea levels; not only may people lose access to their cultural estate, but the freshwater supplies on the islands are impacted by saltwater intrusion.

Lack of regard for Indigenous knowledge

Indigenous knowledge forms a long set of observations of Country, water and sky through the generations. Indigenous knowledge of, and methodologies for, water are slowly becoming a key part of how Australia manages the landscape (Moggridge 2021).

However, this knowledge and set of evidence remain of lesser status for influencing policy and legislation than non-Indigenous knowledge. This was evident from the 2 independent reviews into the fish deaths in the lower Darling River in 2019. Indigenous people (mainly the Barkandji) were not seen as experts and thus were not invited into the process, meaning that no Indigenous knowledge holder was part of either of the 2 reviews.

There have been advances in research into Indigenous water issues since the 2016 state of the environment report. In 2019, a special edition of the journal Australasian Journal of Environmental Management published a series of papers on Indigenous water issues, including waterway assessments, environmental flow partnerships, cultural values, water governance and Indigenous water rights. This was the first focus by a journal on Indigenous water in the Australian context, and possibly the first in which an abstract was translated to Nyikina Indigenous language (Poelina et al. 2019). The editorial for the special issue by Jackson & Moggridge (2019) described the work profiled in the edition as making a significant contribution to Australia’s environmental management efforts.

This relatively new field would benefit from more attention from policy-makers, funders, researchers, nongovernment organisations and the wider public. It could also benefit from reflection by the communities, researchers, policy-makers and practitioners who have built it up over the past 15–20 years, and those who are keen to learn more about what others are doing, what has worked and what has not. Also important is what next steps will need to be taken to advance Indigenous people’s rights and interests in water.

Management and ownership

The history of colonial settler water law and current-day water management under non-Indigenous management structures affect the access, ownership and value of Indigenous water health and entitlements.

One of the key issues is the overextraction of water resources beyond the sustainable yield of the systems. This is evident in the Murray–Darling Basin. Following the implementation of the National Water Initiative of 2004, management saw the opportunity to separate land and water into separate entities – leaving Indigenous people wondering how land can remain alive without water. From an Indigenous perspective, the quality and quantity of water go hand in hand.

The water market was created, and this has further disenfranchised Indigenous people and left them without land and water. The rules that dominate the market and the regulations that manage water sharing favour non-Indigenous landowners (Hartwig et al. 2020, Productivity Commission 2020).

There was a 17.2% decrease in Indigenous water entitlements in New South Wales over the 10 years to 2018 (Hartwig et al. (2020); Figure 27). This is a significant decrease, especially since Indigenous people make up nearly 10% of the region’s population and have less than 0.17% of available surface water.

There have been very few studies on the ownership of groundwater by Indigenous people. However, a recent study prepared by Hartwig & Jackson (2020) for the Murray–Darling Basin Authority revealed that the ownership of groundwater by Indigenous people in the Basin was insignificant compared with Indigenous people’s surface-water entitlements. Six Aboriginal-held groundwater entitlements were identified, all of which are located in New South Wales (Hartwig & Jackson 2020). Aboriginal organisations hold 0.556 gigalitres of groundwater entitlements, which equates to 0.022% of the available groundwater resource across the whole Basin. Aboriginal-held groundwater entitlements are valued at approximately $772,800 (in 2015–16 terms).

Drought and climate change

Drought is part of the Australian landscape and weather patterns, but the risk of drought has been increased through climate change caused by humans. Climate change is an environmental challenge that knows no boundaries, but Indigenous communities have a heightened risk; although they contribute the least to carbon emissions, they are the most affected on Country.

Indigenous people do not want to leave their traditional lands, because they believe that their ancestors have been there since time immemorial. But the projected climate changes will make conditions hotter and drier in south-eastern Australia, leading to increased fish deaths, species loss and uninhabitable lands.

In sea Country, rising sea levels mean that movement from these traditional lands is imminent. Torres Strait is experiencing the brunt of climate change in 2020. With larger tides encroaching on Country and saltwater intrusion into freshwater supplies, Torres Strait people will have to deal with the challenge of becoming climate change refugees and moving to mainland Australia (Mosby 2012, Kelly 2014, Murphy 2019).

Climate measurements are meeting the predictions of drying, increased temperatures and impacts on landscapes. Many elders speak of the health of Country (in other words, the state of the environment), and they are saying that Country is sick. The impacts vary across the continent; at the forefront of climate change impacts is Torres Strait, where impacts on freshwater resources and the loss of Country are real and occurring now.

Indigenous perspectives provide one way of looking at and managing drought. When there are extended periods of no or little rain, the Indigenous way of valuing water recognises that what you do in and with your waters will impact downstream nations. In contrast, non-Indigenous management sets dams at the top of catchments and, if no rain fills the dams, water cannot be delivered to keep the rivers alive. This is not the Indigenous way.

Indigenous water management

Because water is a major component of the ecology and climate of an environment, its management as a resource is crucial to the success of environmental heritage maintenance. Indigenous people’s interconnected relationship with Country means that water has played a critical role in the shaping of culture and identity. There have been instances where frameworks, methods and guidance for including Indigenous knowledge and values in water management have been developed, but there seems to be a reluctance or unwillingness for states and territories to collect data and assess the impacts.

Despite the centrality of water to Indigenous people’s lives and all aspects of culture, there has been limited integration of this cultural practice in statutory regulations. Indigenous people have historically been excluded from water management, and Indigenous water rights are not adequately recognised by Australian law and policy (Aboriginal and Torres Strait Islander Social Justice Commissioner 2009).

Hence, environmental management plans, which have neglected to engage and consult Indigenous communities, have limited these communities’ access to and use of water, as well as custodial practices (Moggridge & Thompson 2021b):

Australia has the least formal recognition of Indigenous water rights of any of the colonised countries, encompassing only non-exclusive rights to access water for personal and domestic purposes, and not for commercial purposes. The most recent reviews of progress in water reform in Australia found that the inclusion of Indigenous values in water planning was ‘rare’ even though policy and legislative frameworks provided mechanisms for engagement, and that most jurisdictions have routinely failed to identify and provide for Indigenous cultural values in water planning.

Water events and Indigenous policy responses

Since 2016, several significant events – either natural or human induced – and responses to these events have been based around inland water (Table 3). The events include the major drought, the devastating multiple fish deaths in the lower Baaka/Barka – Darling River, catastrophic fires, run-off from fire-affected areas, and the impacts of the COVID-19 pandemic. All of these have had varying impacts on Indigenous water resources and communities. Some actions listed Table 3 are not directly related to any of that year’s major events, but are important moments in Indigenous water that have occurred during the past 5 years.

Indigenous water consultation and access

Lack of access to water and Country has been a threat to Indigenous people’s cultural obligations and maintaining those cultural places. Indigenous people see water and country as a linkage to the creation stories, language, wellbeing, spirituality. If Indigenous people are unable to access country and water the spirit and wellbeing of the people suffers. If cultural places fall on private property, then that cultural connection or set of values may fall into disrepair and be lost to generations. Bradley Moggridge, Kamilaroi man

Land ownership and water ownership are ways of accessing Country; another is through access to Crown land, national parks, reserves and state recreation areas, potentially involving co-management agreements. Indigenous access to, and ownership of, land has been increasing, with Indigenous Protected Areas, land rights, native title, Indigenous Land Use Agreements, and the Indigenous Land and Sea Corporation.

The Australian Government and some state governments have also started to recognise the need for specific provision to be made for Indigenous water consultation and access.

Closing the Gap

In 2020, the Closing the Gap targets were updated. A new National Agreement on Closing the Gap (Australian governments & Coalition of Aboriginal and Torres Strait Island Peak Organisations 2020) was agreed to by all levels of Australian governments, and Aboriginal and Torres Strait Islander representatives. The agreement includes 4 priority reform areas and 17 socio-economic targets. Outcome 15 is that ‘People maintain a distinctive cultural, spiritual, physical and economic relationship with their land and waters’, with the associated targets of:

• by 2030, a 15% increase in the fraction of Australia’s land mass subject to Aboriginal and Torres Strait Islander people’s legal rights or interests
• by 2030, a 15% increase in areas covered by Aboriginal and Torres Strait Islander people’s legal rights or interests in the sea.

United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples (United Nations Department of Economic and Social Affairs 2017) was prepared in 2004 by the United Nations Permanent Forum on Indigenous Issues. It recognises Indigenous ownership of Indigenous cultural expression, including water, and in 2007 was voted on and accepted by the United Nations. The following articles concern water and procedural mechanisms to include Indigenous people in inland water allocations:

• Article 25 – Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
• Article 32.2 – States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Australian Government

In 2018, the Australian Government committed $40 million to acquire water for Indigenous people in the Murray–Darling Basin: $20 million each for northern Basin and southern Basin Indigenous communities (DAWE 2021a). This commitment remains crucial for water justice for Indigenous people, as it is the only pathway for substantive surface-water access for Aboriginal people in the Murray–Darling Basin. However, by June 2021, no funding had been issued.

The Water Act 2007 (Cth) was amended to include an Indigenous member to the Murray–Darling Basin Authority (MDBA) board. The Australian Government has appointed Nari Nari man Mr Rene Woods to the permanent Indigenous Authority Member board position.

The Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018 passed through the Australian Parliament on 28 November 2018. The amendment is designed to increase flexibility to allow the Indigenous Land and Sea Corporation to use its funds to access water entitlements as well as land entitlements.

The National Water Initiative (NWI) renewal was established and progressed following the release of the Productivity Commission’s issues paper (May 2020) and its follow-up draft report on national water reform (September 2021; see National Water Initiative). The process included establishment of a Committee on Aboriginal Water Interests to provide advice on appropriate content in this major review of national water reform in Australia. It is anticipated that a draft renewed NWI will be prepared by December 2021, with a final draft provided to jurisdictions after the July 2022 National Water Reform Committee meeting. It is anticipated that jurisdiction signatures and an action plan on implementation will be sought by November 2022.

The Australian Government established the First Nations Environmental Watering Guidance Project, through the Commonwealth Environment Water Office. The project has worked with the MDBA, the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) and the Northern Basin Aboriginal Nations (NBAN) to incorporate Indigenous environmental watering objectives into planning for environmental flows at a Basin scale.

Australian Government funding relating to water access includes 2 full-time positions for 3 years to support MLDRIN and NBAN. The funded employees will work with local Indigenous communities and government agencies to translate the findings of the National Cultural Flows Research Project into practical activities. Additional funding of $1.5 million will cover the costs associated with these activities, including ongoing development of the Aboriginal Waterways Assessment program. This funding will supplement the existing $635,000 per year allocated to MLDRIN and NBAN.

Australian Capital Territory

The 2019 Australian Capital Territory (ACT) state of the environment report placed the Ngunnawal (Indigenous) chapter second in the report, indicating the relevance and importance of Indigenous knowledge. The ACT report notes that if a framework for reporting against cultural values and indicators is developed, this information can be included in future editions.

New South Wales

At state and territory level, the New South Wales Water Management Act 2000 was the first piece of Australian water legislation to clearly incorporate Indigenous values directly, referring to the need to consult on ‘(iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water’ (s. 3: Objects).

The Act further provides for specific-purpose Aboriginal licences and the consideration of values in water-sharing plans. The provisions in the Act provided for the creation of the Aboriginal Water Initiative (AWI) unit, which developed methodologies for consistently describing and recording Indigenous cultural values associated with water (Moggridge et al. 2019). The AWI ceased in 2017.

The most significant new policy is the amendment of the Water Management (General) Regulation 2018 for the regulation of floodplain harvesting, including the issuing of licences to landowners in New South Wales. However, implementation dates remain uncertain. It is also not clear whether Indigenous landowners will receive free floodplain harvesting licences; the benefit is likely to fall to non-Indigenous landowners, including graziers and irrigators.

In 2020, the NSW Independent Commission Against Corruption report was released, which investigated complaints of corruption in the management of water in New South Wales and systemic noncompliance with the Water Management Act 2000. This report exposed the disenfranchised position that Indigenous people face with regard to water.

Northern Territory

In the Northern Territory, Strategic Indigenous Reserves (SIRs) were established in the late 20th century, largely in response to lobbying from Indigenous organisations and after considerable political debate (Taylor et al. 2017). The policy shift was well received by the Indigenous community and underpinned production of A policy statement on north Australian Indigenous water rights by the Indigenous Water Policy Group. The election of a national Coalition government in 2013 was followed by the disestablishment of SIRs (Stewart 2013).

It 2016, the Northern Territory Labour opposition went to the Territory election with a commitment to review the policy position on SIRs. After its election victory, a discussion paper (DENR 2017b) was released that proposed that SIRs be associated with a reserved volume of water exclusively accessible to Aboriginal landowners. Following the review, a policy framework was published (DENR 2017a), and the water entitlements were referred to as Strategic Aboriginal Water Reserves. In October 2019, the Northern Territory Government passed the Water Further Amendment Act 2019. This legislation establishes Aboriginal economic development as a new ‘beneficial use’ category in the Northern Territory Water Act 1992, paving the way for water in new allocation plans to be assigned to Aboriginal water reserves.

Queensland

Queensland has incorporated Indigenous people’s water interests in new water plans, through explicitly stated cultural outcomes and recognising the importance of water resources to Indigenous people, including their strong spiritual connection to water.

The Cape York Water Plan 2019 recognises the close cultural connection of Aboriginal and Torres Strait Island people with the land and water resources through unallocated water reserves. This involves the granting of water licences to an eligible person at zero cost per megalitre. Such a licence is not subject to water licence fees and charges.

South Australia

In 2019, through the development of water resource plans as required by the Water Act 2007 (Cth), South Australia worked with nations within the South Australian Murray–Darling Basin to better understand objectives and desired outcomes for water management. The South Australian Government committed to continuing meaningful engagement with Indigenous people on water resource planning processes through a series of engagement principles.

Tasmania

The Tasmanian Water Management Act 1999 provides broad directions for the Minister for Primary Industries and Water to oversee the sustainable use and development of all freshwater resources in Tasmania. The Act has been in place for 22 years; considering the engagement of Indigenous Tasmanians and their cultural values relating to water, Tasmania is lagging behind other states.

Victoria

Victoria released the Water for Victoria policy (DELWP 2016) in late 2016. Chapter 6 (‘Recognising and managing for Aboriginal values’) includes 4 actions:

• recognising Aboriginal values and objectives relating to water
• including Aboriginal values and traditional ecological knowledge in water planning
• supporting Aboriginal access to water for economic development
• building capacity to increase Aboriginal participation in water management.

The policy was associated with a funding program totalling $9.7 million, which included funding to create a targeted Aboriginal water unit (DELWP 2016, Productivity Commission 2017).

Victoria has also recognised the cultural value of water with the introduction of legislation to recognise the Yarra River/Birrarung as a legal entity (O’Donnell & Talbot-Jones 2018). The legislation allows the Wurundjeri, the Traditional Custodians of Birrarung, to be included in decisions and the management of the river. This includes through representation on the Birrarung Council (‘the voice for the Yarra’), as prescribed by the Act, involvement in the development of the Yarra River Action Plan (DELWP 2017), and involvement in all matters relating to the river.

The Victorian Government is working with Aboriginal Victorians as equal partners to determine the approach to a treaty or treaties. It is supported by the work of the First Peoples’ Assembly of Victoria, and the soon-to-be-constituted Yoo-rrook Justice Commission, which will enable a truth and justice process.

Western Australia

Indigenous engagement advanced in Western Australia through the establishment of the Aboriginal Water and Environment Advisory Group, announced by the Director General of the Department of Water and Environmental Regulation in the 2018–19 annual report (DWER 2019). The advisory group has been established to advise the Western Australian water minister. The state is also developing the Fitzroy Water Allocation Plan, the first strategic Aboriginal water reserve through the Yamatji Nation Indigenous Land Use Agreement, and the draft Derby Water Allocation Plan includes a strategic Aboriginal water reserve.