Facilitating Water Rights in Northern
Australia
Science Week Presentation
John Mackenzie
Virtual Revolution in Water
Planning
• From a minor, ad hoc activity to a mainline and continuous activity of
government
• From a conception of water as a commodity or a service to a
conception of water as a key ingredient in economic and social
policy
• From a process that involved a small group of professionals to one
that now involves many different disciplines and the public at large
• From a discrete area of policy to one which is influenced by a large
array of political considerations from the promotion of development
in particular regions to meeting the social and economic needs of
particular social groups.
The National Water Initiative
(NWI)
“A nationally-compatible
market, regulatory and
planning based system of
managing surface and
groundwater resources for
rural and urban use that
optimises economic, social
and environmental
outcomes”
Water Planning
Water
scarcity
Water Markets
Water Regulation
Making Tradeoffs Transparent
“…settling the trade-offs between competing
outcomes for water systems will involve
judgements informed by best available
science, socio-economic analysis and
community input…”
Australia’s National Water Initiative
Section 36
Indigenous Water Rights
Under the NWI, governments have committed to:
• provide for Indigenous access to water resources
• through planning processes that ensure inclusion of
Indigenous representation in water planning wherever
possible, and
• water plans incorporating Indigenous social, spiritual and
customary objectives and strategies for achieving these
objectives wherever they can be developed
• take account of the possible existence of native title rights to
water in the catchment or aquifer area.
• may need to allocate water to native title holders following the
recognition of native title rights in water
• account for water allocated to native title holders for
traditional cultural purposes
• Correction to the historical exclusion of Indigenous
people from water reform
• Pragmatic recognition based on the large and
growing extent of land under Indigenous estate
• Provides basis for water allocation for cultural and
commercial purposes
• Commits governments of Australia to acknowledging
and protecting the special category of values that
Indigenous stakeholders possess as Traditional
Owners of the country’s water resources
How are people working together to
develop water plans?
Our TRaCK research team explored ways to
improve collaborative approaches to water
planning to:
• develop a better means to involve
communities, industry and the public
• to include social, cultural and economic
values in water planning, especially those
held by Indigenous people.
Collaborative Planning Case
Studies
Agency Barriers to Collaboration
National Water Planners Survey
• Survey of approximately 1 in 3 water planners from across
Australia
• 51% of planners identified that there are specific processes
for Indigenous engagement.
• Most referred to the participation of Traditional Owners or
other Indigenous representatives on the community reference
panels.
• Cultural assessment is regarded by planners as the least
important technical assessment conducted for the
development of water plans.
• Many planners consider the assessment of environmental
requirements commensurate with the needs, values and
rights of Indigenous stakeholders and Traditional Owners.
National Water Planners Survey
Desired areas of training and development
for water planners
Indigenous Engagement
4.17
Cross-cultural Engagement
4.15
4.00
Conflict Management
Social Assessment
3.86
Decision-support Tools
3.80
Science Communication
3.75
3.68
Facilitation
Stakeholder Analysis
2.27
Unrealised Promise of Reform
• No national guidelines to ensure the inclusion of
Indigenous rights or interests in water reform
• Inconsistent approaches across and within
jurisdictions
• Biennial review of water reform conducted by
the National Water Commission in 2009 found
the explicit inclusion of Indigenous interests in
water plans has been uneven and rare
Protocols and Policies for
Indigenous Inclusion
Indigenous Rights to Water Report: Lingiari Report to ATSIC (2002)
Boomanulla Statement (2002)
Protocols, Principles and Strategies Agreement for Indigenous Involvement in Land and
Water Management - North Central Region of Victoria (2002)
Indigenous Peoples Kyoto Water Declaration, Third World Water Forum (2003)
Memorandum of Understanding between Murray Lower Darling Rivers Indigenous Nations
(MLDRIN) and Murray-Darling Basin Commission (2006)
United Nations Declaration on the Rights of Indigenous Peoples (2007)
Indigenous Water Policy Group (IWPG) Statement (2008)
Mary River Statement (2009)
Indigenous Water Policy Statement (2010)
Echucha Agreement (2010)
Indigenous Expectations from
Planning
• Indigenous culture and values must be identified, respected and
incorporated in natural resource planning and implementation,
particularly with respect to the distinct connections maintained by
Indigenous people to those resources.
• Recognition and reinforcement of Indigenous identity and status of
traditional ownership and custodianship
• includes the recognition and respect of customary governance
arrangements around the management of resources.
• Indigenous people must be recognised as a unique class of
stakeholders in resource management processes, due to the
inextricable connectivity between identity, spirituality and water.
• Indigenous knowledge about the environment must be
afforded parity with scientific knowledge in decision-making
• Where possible, active measures must be made to ensure legal
protection of community intellectual property rights with regards
to this knowledge.
• Respect for cultural diversity of Indigenous people
• including the differences in traditions, laws, sites, stories and
cultural practices or traditional practices across communities.
• Planning processes must respect the cultural practices and
custodial responsibilities of Indigenous peoples
• includes respect for community protocols as to who can
legitimately speak for country
• The recognition of ongoing sovereignty and traditional
custodianship of natural resources requires that the economic
benefits that flow from natural resource management must be
shared with Indigenous communities.
Priority Areas for Planning
Indigenous
Water
Planning
Issues
Establishing terms of engagement
processes that formalise relationships and establish a more level platform for negotiation
between parties
Defining or measuring Indigenous water use requirements
tools and processes that enable greater clarification around water needs for cultural and
consumptive purposes
Access to the consumptive pool
processes for articulating consumptive water needs and public benefit, outlining governance
arrangements and determining procedures for access
Knowledge and information exchange
methods for enhancing cross-cultural knowledge exchange, recording of Indigenous
knowledge, protection of Indigenous property rights, communicating Western hydrological
knowledge and predictions
Participatory goal setting
participatory planning techniques which allow for articulation of social and economic
aspirations in relation to water needs
Water management regimes
Guidelines for determining role of Indigenous groups in managing water, such as managing
environmental flows or provision of other environmental services or monitoring
Development of Protocols
• Prior informed consent
• Respect for traditional modes of
governance in decision-making
• Recognition of custodial responsibilities
• Integration of traditional ecological
knowledge
• Flexibility in negotiation frameworks
• Alignment with community aspirations
Guidelines for Negotiation Platform
• Places Indigenous communities in a position to make
informed decisions about future water use and management
• Ensures a strong negotiation position for those communities
to maximise the financial and non-financial benefits of the
water reserve
• Provides as much ownership and control of the decisionmaking process in the hands of the traditional governance
structures of the Indigenous communities in the region as
possible
• Allows for sufficient flexibility to initiate and advance planning
objectives beyond responding to those of government
agencies
Waterways Advisory Committee
• Wik Projects Pty Ltd received a Natural Heritage Trust
grant in October 2008 to convene the Waterways,
Wetlands and Coastal Management Advisory Committee
• Produced a draft Waterways, Wetlands and Coastal
Management plan
• Similar catchment-based Indigenous Catchment
Organisations emerging in Mitchell River, Kowanyama
and Daly River
Key Features of Catchment Groups
• Unifies multiple and diverse language groups at a
catchment scale
• Ensures space and opportunity for concerns,
knowledge and values to be articulated
• Allows for engagement to be on Traditional Owner
terms and consistent with custodial obligations
• Enables community to develop a strong framework
for negotiation
• Allows for self-definition of Country in an
integrated framework
Indigenous Water Facilitator Network
Six priority northern
Australian catchments
Water Facilitators are
based in Land Councils
across north Australia
Model of Indigenous Water Facilitation
DECISION MAKING
Other Stakeholders
WATER FACILITATOR
Traditional
Owners
Diverse
knowledge, beliefs,
values and
aspirations
Stakeholders
Government agencies
Rep bodies
Land managers
Community groups
Industry groups
Research providers
Land & Sea programs
The aim of the
model is to provide
Indigenous
communities with
the capacity to
directly engage in
water management
and planning and
develop tool sets
that can be used to
inform policy
development.
Adapting Facilitation to Local Context
Catchments with existing water management allowed greater facilitation of
engagement in water management and planning by water facilitators. This
provided foundations on which to develop Aboriginal Reference groups that
could articulate aspirations for Indigenous led research and management
programs.
Where there were little or no foundations for engagement, facilitation was
found to be complex and took time. Indigenous groups first needed to
understand and articulate the cultural significance of water and their
obligations under customary law to look after country before they could
engage in government planning and policy development.
When complex relationships exist between prescribed bodies corporate
(PBCs) and state government development projects, caution needs to be
applied so that Indigenous planning activities do not conflict with
development aspirations of the representative body.
Engagement Readiness Assessment
iii) Community
Ownership
• Information gathering
• Community consultation
• Catchment planning
• Negotiation position
ii) Building Capacity
• Building community interest
• Awareness and understanding
• Dedicating or obtaining resources
• Developing community confidence
i) Preparation
• Scoping existing or establishing
new consultation frameworks
• Building community capacity to
talk about water
• Formal or informal engagement
protocols
Impact of the Facilitator
Program in Northern Australia
In the Kimberley
Documenting Traditional Ecological Knowledge
• Co-ordinated a series of ‘back to Country’ visits to
record and document traditional ecological
knowledge
• Development of a DVD documentary on ‘why water
is important to Miriuwung people’ was presented at
the Indigenous Water Policy launch at Parliament
House in Darwin
• Model for documenting knowledge and build
consensus views across language groups, share
learning, discuss issues and achieve a view they
can represent to others.
In the Kimberley
Documenting Traditional Ecological Knowledge
“There has been some really
impressive local
successes, for example,
the seasonal calendar
developed by the East
Kimberley ICWF has had
an impact as a new way
(for others) of talking about
climate change and
perhaps application of the
technique as a monitoring
tool.
It’s a new national way of
looking at change”.
In the Top End
Formulating Policy on Indigenous Water Reserves
•
Facilitated discussions on Strategic
Indigenous Reserves (SIRs) between NTG
statutory planning authorities, the Northern
Land Council and Traditional Owners:
•
•
•
•
•
Oolloo and Mataranka groundwater districts
TOs were able to make collective decisions
about water reserves based on technical
and cultural information
Devised a formula for their desired SIR
water allocations to negotiate Government
Led to the establishment of two ongoing
Traditional Owner Reference Panels in the
areas
Set a precedent for establishment of
SIRs in statutory water planning
In Cape York
Negotiating Complexity and Conflict
• Wenlock Catchment
Traditional Owner Forum
(40 TOs attending) was
convened and held in
Mapoon over three days in
December 2010
• Established the Wenlock
Catchment Management
Group
• Established a plan for
mapping cultural values in
the region
• Meeting outcomes report
used as a submission to the
House Standing Committee
on Economics for Mapoon.
In Kowanyama
Recounting the History of Success
Documented the history of the
Kowanyama Land and NRM
office over twenty years entitled
‘Kowanyama – Bottom end of
the Catchment’.
Translation of water and river
information collected over history
of the office
Included information on historical
successes, including developing
partnerships with external
agencies
Translated outcomes of programs
into plain language that shows
the importance of water to TOs.
In the Mitchell
Collaborative Research Protocols
• Formation of the Mitchell River Traditional Custodian
Advisory Group (MRTCAG), which aims to review and
manage any scientific research carried out on their
country.
• On November 24, 2009, MRTCAG signed an
agreement with the TRaCK research program
• It allows for cooperation and collaboration for
conducting research on lands owned and managed by
the Mitchell River Catchment Traditional Custodians.
• Requires researchers to follow an agreed set of
protocols and a code of conduct for working on
Indigenous lands in the Mitchell River Catchment.
In the Gulf of Carpentaria
Evaluations of the Facilitator
Program
“This model of having facilitators linked
together under a common set of principles
across Northern Australia is as close as
anyone has come thus far to doing this in
a meaningful way...”
Indigenous Community Water
Facilitator Field Guide
Drawing from the experiences of the NAILSMA
Indigenous Water Facilitator Network and the full
range of TRaCK research and publications, this
work will compile outputs as a field guide for
community-based water facilitators to support
Indigenous communities to better understand and
participate in water planning, management and
decision-making.