Aboriginal rights to water: WA reform and opportunity

Friday, 3 June 2016
Darren Forster

The Indigenous people of Australia own or control1 almost 30%2 of the country’s land mass, yet their specific water entitlements are estimated at less 0.01% of Australian water diversions.3 As the Western Australian (WA) government moves further along the path to water reform, there is rare occasion for them to go some way towards remedying this disparity. Should the proposed new legislation incorporate Aboriginal views, rights, priorities and interests into the legislative scheme, it would create opportunities and rightfully acknowledge the customary rights and future aspirations of our nation’s first peoples’. This is important in order to maintain their fundamental human rights,4 and to “protect, preserve and maintain the lifeways and territories of Indigenous peoples’ and local communities.”5 The intent of this paper is to examine the water law framework of WA and the Commonwealth, and to propose potential solutions that will aid the reform process in better incorporating Indigenous perspectives, aspirations and rights.

  1. Note, ownership, control and tenure can come in various forms.
  2. Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126, 2015).
  3. Environmental Justice Australia, Aboriginal Water Rights; Legal Analysis of Submissions to the Review of the Commonwealth Water Act (2014).
  4. As established in the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007).
  5. Stan Stevens, 'Chapter 3. Community-Oriented Protected Areas for Indigenous Peoples and Local Communities: Indigenous Protected Areas in Australia - Marcia Langton, Lisa Palmer, and Zane Ma Rhea' in (University of Arizona Press, 2014) 84.