Indigenous access to water and Indigenous access to water and participation in water planning under participation in water planning under

the National Water Initiativethe National Water Initiative

Sue Jackson, CSIRO Sustainable Ecosystems Poh Ling Tan, Griffith University

OutlineOutline

1. NWI: Indigenous related elements (SJ)

2. Water planning framework (PLT)

3. Legislative provisions for Indigenous access and participation (PLT)

4. NWI implementation (SJ)

5. Conclusions

1.1. National Water Initiative (NWI)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 implementation tasksNWI implementation tasks

1. Incorporate Indigenous social, spiritual and customary objectives in planning

2. Take account of native title rights

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

4. Include Indigenous representation in planning

Other NWI provisionsOther 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

• Discretionary terms

• Little guidance to water planners – how, what, when

• Limited definition of Indigenous interests, esp. commercial interests

QualificationsQualifications

2. Water planning framework 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

Water planning framework - QLDWater planning framework - QLD

NSW macro planning frameworkNSW macro planning framework

Water planning framework: NTWater 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

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

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.

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

ImplementationImplementation – access to water– 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

ImplementationImplementation – access to water – access to water con’tcon’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

Access to water – Access to water – con’tcon’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

Special measuresSpecial 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

ConclusionsConclusions

• 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