TRaCK: Tropical Rivers and Coastal Knowledge

Science and knowledge that governments, communities, industries for sustainable use of Australia's tropical rivers and estuaries

Indigenous Rights in Water in Northern Australia - NAILSMA/TRaCK Project 6.2

TitleIndigenous Rights in Water in Northern Australia - NAILSMA/TRaCK Project 6.2
Publication TypeReport
Year of Publication2011
AuthorsO'Donnell, M
Date Published03/2011
InstitutionCharles Darwin University
ISBN Number978-1-921576-50-8
KeywordsBlue Mud Bay, cultural flow, Indigenous, Indigenous heritage, Indigenous rights, inland waters, land rights, National Water Initiative, native title, Northern Australia, Northern Territory, Queensland, Strategic Indigenous Reserve, subterranean water, surface water, traditional usage of waters, water management legislation, water plans, Western Australia

This project covers the range of laws applicable in northern Australia that recognize and affect Indigenous rights and interests in relation to onshore or inland waters both surface and subterranean.  This includes both Federal law and the law of the provincial jurisdictions of Western Australia, the Northern Territory and Queensland.

The key issues discussed and analysed include:

  • the scope of the legal recognition by Australian law of traditional law and custom in relation to water with particular reference to native title law and land rights legislation in northern Australia;
  • the relevance and impact of water management legislation; Indigenous heritage protection laws, legislation that recognizes statutory rights of traditional usage of waters and environmental legislation;
  • foundational legal issues concerning the legal status of “natural” waters and the universal vesting in the Crown of the right to the use and control of water;
  • compliance with the National Water Initiative with respect to Indigenous interests;
  • the implications of recent amendments to the Aboriginal Land Rights (Northern Territory) Act, 1976;
  • the implications for native title holders of new water plans in Katherine (NT) and the La Grange area of the West Kimberley in Western Australia;
  • the implications of recent court decisions, including the High Court’s (August 2008) decision in Blue Mud Bay in the Northern Territory;
  • the legal implications of markets for Indigenous interests and rights; and
  • proposals for revision of water law in northern Australian jurisdictions especially in relation to an Indigenous specific allocation from the consumptive pool.

Australian law currently recognizes in certain circumstances Indigenous rights to take and use water for non-commercial purposes.  There is an emerging native title jurisprudence concerning a right to trade, which potentially could include water in the future.  Native title law and land rights legislation recognises an Indigenous right to control access to water but not the ownership of water.