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Native Title Report 2008 - Appendix 7

Native Title Report 2008

Appendix 7: Overview of Australian water sector
legislation and policies
[1]

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Jurisdiction
Organisation

Responsible
Key responsibilities
Key policy documents and legislation
Summary of policy objectives
Commonwealth
Department of Environment, Water, Heritage and the Arts
National heritage


Water policy and resources (if negotiated with states)
National Water Initiative


Water Act 2007 commenced on 3 March 2008 (mainly for the
Murray-Darling Basin)


Environmental Protection and Biodiversity Conservation Act
1999


Living Murray


Snowy Initiatives
To implement national water reform focussing on water security, ecosystem
health, efficiency and conservation.


Provides a basin plan for the Murray-Darling, water trading, establishes
Murray-Darling Basin Authority to optimise economic, social and environmental
outcomes and to ensure sustainable use of water.


To protect the environment, especially matters of national significance in
line with the World Heritage Convention and Ramsar wetlands.
Queensland
Department of

Natural Resources

and Water
Responsible for water

planning and

management
Water Act 2000,

Qld Water Plan 2005-2010, Qld Smart State
Strategy 2005-2015.


Wild Rivers Act 2005


Cape York Peninsula Heritage Act 2007
A strategy for improving sustainable water management, ensuring a secure
future water supply for communities,

farmers, industries and rivers


Preserve natural values of rivers that are almost untouched


Provides for the identification of the significant natural

and cultural
values of Cape York Peninsula and joint management of national parks

New South Wales

Department of Water and Energy


Department of Environment and Climate Change

Water responsibility is shared between two departments


responsibility for water extraction in terms of planning and licensing


protection and management

Water Management Act 2000


Water Sharing Plans (statutory object prepared under Water Management
Act)[2]


Murray–Darling Basin Act 1992

Provide for the sustainable and integrated management of the water sources
s 3


Protect water for the environment while also securing the rights of water
users


Provide to carry out intergovernmental agreement
Victoria
Department of Sustainability and Environment
Water management
Water Act 1989


Green Paper: Securing our water
future[3]


Our Water Our Future: The White
Paper[4]
Sustainably manage water resources
South Australia
Department of Water Land and Biodiversity Conservation


Department for Environment and Heritage
Improve sustainability through the integration and management of all of the
State's natural resources


Achieve improved health and productivity of our biodiversity, water, land
and marine resources.
Natural Resource Management Act 2004


Water Resources Act 1997


Murray-Darling Basin Act 1993


River Murray Act 2003
Promote sustainable and integrated management of the State's natural
resources including water


Provide to carry out intergovernmental agreement


Protection and enhancement of the River Murray and related areas and
eco-systems

Summary of reported progress on implementing
Indigenous access provisions of the NWI by each Australian
jurisdiction
[5]

Jurisdiction
Indigenous access to water resources
Inclusion of Indigenous representation
Water plans to incorporate Indigenous objectives
Take account of native title
Account for water allocated to ‘traditional cultural
purposes’
Australian

Government
No specific Indigenous provisions


Water Act 2007, s 29, Authority to consult holders and managers of
environmental water in implementing environmental watering plan - This could
arguably apply to Indigenous peoples
Australian Govt will continue to work through the Advancing Reconciliation
Working Group of the NRM Ministerial Council for water-related Indigenous
issues.

Most native title issues

relating to NWI will be the

responsibility
of the relevant

state or territory govt dept. The Aust Govt will provide
advice to other Aust. Govt depts on water planning processes & native title
implications.


Water Act 2007 s 13 The Native
Title Act 1993
not affected.

Queensland
Include Indigenous representatives on water management advisory
structures.


Achieved through representation and consultation in development of water
resource plans.


Representatives involved in development of water resource plans (s 41 of
the Water Act 2000 requires a community reference panel (CRP) with
representatives of, inter alia, cultural interests).


May also have Indigenous Working Groups to complement a CRP.


Consultation through NRM bodies.
Traditional indigenous

uses generally provided

for by ensuring there
are sufficient environmental

flows. Their purpose is to

mimic natural flow
patterns.


Provides for maintenance of water levels in water holes of

identified
significance.


Special issues papers

prepared for Diamantina

and Georgina
WRPs.
As native title rights to water have not been legally recognised, Qld has
not been able to make any specific legislative or Water

Resource Plan
provisions.


However, water allocated to

protect ecosystem processes acts to protect
traditional uses associated with water.
Wild Rivers

The wild river declaration or water resource plan
must provide for a reserve of water in the area to which the declaration or plan
relates for the purpose of helping indigenous communities in the area achieve
their economic and social aspirations. This only applies to a small area in Cape
York.
New South Wales


Water Management Act
Commitment to Aboriginal peoples benefits to the Aboriginal people in
relation to their spiritual, social, customary and economic use of land and
water,
(s 3(c)(iv))in the objects of the act.


Each Water Sharing Plan (WSP) provides for access in the form of Aboriginal
cultural access licences. Fees for such licences have been waived.


Certain WSPs provide for

commercial access licences (North Coast
Rivers). Future WSPS will provide for these types of licence.


An Aboriginal Water Trust is now established under the WMA as a strict
commercial program.


Supports participation in the water economy. $5m is available for the first
2 years of operation.


A performance evaluation in 2007 will determine continuity.


The Water Trust has not led to significant outcomes for Indigenous
people[6]
Each WSP Management committee included 2 reps from the local Aboriginal
community (s 11-14).


Their responsibility to convey information discussed at meeting to
community for comment.


CMAs are establishing Aboriginal Reference Groups to be used for ongoing
consultations on future WSPs.
Many plans have general

aspirational statements. To evaluate this
component would require more direct research.


From conversations this has not really happened.
Native Title recognised s 55

Native title rights provided

for under
the Basic Landholder Rights provisions of the WMA, allowing a native
title

holder to take and use water without a licence o4 approval in the
exercise of native title
rights[7].


Native title claimants are

notified of applications for

consents
under the WMA (e.g new grants of water).


Applications for new/amended works will be assessed to avoid impacts on
Aboriginal heritage.
Each of the WSP recognise that extractions as part of a native title right
may increase over the term

of the WSP, if native title is granted in
NSW.
Victoria
Water Act 1989 currently

incorporates public processes into water
allocation decisions
2001 - Indigenous Partnership Strategy including NRM.


A framework (ILMF) is being developed. Regional Indigenous Facilitators
undertaking information sessions with environmental agency.


By mid 2007 formal agreements will be established with groups involved in
NRM issues.
Victorian River Health

Strategy (2002) highlights

The importance of
protecting

rivers of high community

value, inc. those with sites of sig.
‘for Indigenous culture’.

Indigenous consultation

must occur
during the

development of river health strategies (eg Glenelg Hopkins River).
A key objective of bulk entitlements consultative processes is to ensure that
water is provided to the rivers and floodplains in

a way that ‘ensures
continuation of indigenous

spiritual and cultural practice (e.g. Yorta Yorta
Cooperative Mgmt Agreement and Lake

Condah Sustainable Development
Strategy).
Since 2000 all affected

Indigenous groups are invited to participate in
bulk

entitlement consultative

processes.


No native title has been

awarded in Victoria. One

native title
consent order was granted involving Wotjobaluk people around the Wimmera River.
There is no provision relating to the allocation of water for traditional
cultural purposes.
In the event that water is legally allocated to native title holders for
traditional cultural purposes, it will be accounted for within

the relevant
water account.
South Australia


Natural Resource Management Act 2004
Water allocation plans must take into account those water users who are
dependent on the water source [s76]. Could be applied to Indigenous peoples
1 Member suitable to represent Indigenous interests - Natural Resources
Management Council [s 13 (2)9(e)].


Minister must give notice to Aboriginal people of Board appointment (s 25).


Initial discussions have commenced with Indigenous groups to ascertain
likely issues. Said to be an intrinsic

part of the review of all WAPs.


2005 – established an Aboriginal Statewide Advisory Committee to
advise on Indigenous issues.
Natural Resources

Management Act 2004

provides for
consideration

of traditional owner interests in any natural resource. This
includes water allocation plans (s 7).
ILUAs have been used

‘in relation to access to and

for a range
of purposes. It is likely a similar approach may be adopted for indigenous
access to water resources especially given Aboriginal cultural practices which
integrate management of land, water and cultural practices’.
Undergoing review
WA


Undergoing reform process
Water allocation planning

processes provide for

Indigenous access to
water resources; specifically for nonconsumptive

cultural uses.
State NRM Council held a 2 day forum on facilitating Indigenous engagement.
Forum inc. the NWI.


National NRM meeting agreed to improve reporting on Indigenous interests
and water management.


Establishment of water resources management

Committee must include as
far as practicable a person who has knowledge and experience relating to
the

water needs and practices of local communities,

including Aboriginal
communities (s 26GK, s 26GL)
Indigenous ecological

knowledge is also sought

to assist in making
appropriate water allocations for the

environment.


Indigenous engagement is

especially sought in development plans eg.
Gnangara Mound near

Perth.
DOW to liaise with Office of

Native Title regarding the

current
process for dealing

with indigenous interests in

water management
plans.

By Jan 07, obtain legal advice on Indigenous access and entitlements
and the requirements under the NTA and Aboriginal Heritage Act 1972.


Policy position papers

finalised.

Tasmania
Review of Water Act only takes into account aboriginal heritage




ACT
No available data




Northern Territory


Undergoing reform process
NT water allocation planning processes provide access
for

non-consumptive cultural

beneficial uses and for access to the
consumptive pool for agricultural, aquaculture, public water supply, industry or
rural stock and domestic uses.
Indigenous engagement is

especially sought in developing WAPs and
as

members of Water Advisory Committees.


Water Act provides for water resources review panel where 8 people
appointed with experience in Aboriginal affairs one of considerations (s 24(3)).
Indigenous ecological knowledge is sought in allocating water to
the

Environment.
Implications of rights under

the NTA have not been

considered or
legally tested.


Legal opinion should be

sought to clarify this issue in the context of
water

allocation planning and

management.

Competent monitoring systems exist and all access to water in WCD is
controlled through

permits.

 

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[1] Adapted from Jackson S,
Indigenous Interests and the National Water Initiative: Water Management, Reform
and Implementation, Background Paper and Literature Review, Report for the IWPG
(2007), p 42. At: http://www.nailsma.org.au/nailsma/publications/downloads/NAILSMA_NWI_Review_UPDATEDec07.pdf (viewed 17 December 2008).

[2] NSW Department of Natural
Resources, Water Sharing Plans, http://www.naturalresources.nsw.gov.au/water/sharing_plans.shtml (viewed 17 December 2008)

[3] Department of Sustainability
and Environment, Victoria, Our Water, Our Future, http://www.ourwater.vic.gov.au/programs/owof (viewed 17 December 2008)

[4] Department of Sustainability
and Environment, Victoria, Our Water, Our Future, http://www.ourwater.vic.gov.au/programs/owof (viewed 17 December 2008)

[5] Adapted from Jackson S, Indigenous Interests and the National Water Initiative: Water Management,
Reform and Implementation
, Background Paper and Literature Review, Report
for the IWPG (2007), pp 104-109. At: http://www.nailsma.org.au/nailsma/publications/downloads/NAILSMA_NWI_Review_UPDATEDec07.pdf (viewed 17 December 2008).

[6] M Durette , Indigenous
Legal Rights to Freshwater: Australia in the International Context
CAEPR
Working Paper No. 42/2008 (2008), p 27. At: http://www.anu.edu.au/caepr/Publications/WP/CAEPRWP42.pdf (viewed 17 December 2008).

[7] M Durette, Indigenous
Legal Rights to Freshwater: Australia in the International Context
CAEPR
Working Paper No. 42/2008 (2008), p 20. At: http://www.anu.edu.au/caepr/Publications/WP/CAEPRWP42.pdf (viewed 17 December 2008).