Beyond native title: future directions in legislative recognition of Indigenous water management rights – recent developments in Aotearoa New Zealand and Victoria

Development of water law in Victoria has largely ignored Indigenous rights to participate in water management, resulting in minimal recognition in the Water Act 1989 (Vic). Other legislative mechanisms (both Commonwealth and State, including the Native Title Act 1993 (Cth)) have also been shown to be of limited utility in facilitating Indigenous participation in water management.

Treaty settlements in Aotearoa New Zealand have been more successful in facilitating Māori participation in the management of water resources, especially some of the more recent settlements. Of particular interest is the legislation implementing the Whanganui River Settlement in which the Whanganui River has been recognised as a legal entity, represented by a River Guardian containing Māori representation. 

After outlining the current status of the legislative recognition of Indigenous water management rights in Victoria’s water management regime, this paper will look at the benefits and disadvantages of the River Guardian concept and its potential application in Victoria. In that regard, the role of the Victorian Environmental Water Holder will be considered, as well as the proposed Yarra (Birrarung) Protection Bill, which will establish a Birrarung Rivers Council to act as a ‘champion for the Yarra River’.