By co-authors Emma Fitch (Solicitor, Terri Janke and Company) and Jodene Garstone (Jaru and Bardi woman, Legal Intern, Terri Janke and Company)
Water is life.
Rivers, lakes, springs, creeks and saltwater are the givers of life. Water rejuvenates Country season by season, is home to many land and water animals, and is key to the survival of people and culture. We live in a symbiotic relationship with water as it looks after us and we look after it. First Nations people have inherent rights to water by virtue of being the First Peoples of Country, as well as having rights under Western law. However, express rights under Western law remain limited.
With increased interest in First Nations knowledge as it relates to water, this presents both opportunities and risks. This article outlines the inherent rights of First Nations people to water, and provides necessary legal considerations for any water project.
Water is the holder of cultural knowledge, deeply connected to First Nations spirituality. Without water, connection to Country is muted. In some First Nations cultures, rivers are part of song lines and dreaming tracks, evidence of the connection to Country from time immemorial. In some First Nations cultures, many totems would not survive without water. First Nations people have rights beyond water itself, to protect totems, to stories, to protect the integrity of and to pass on culture.
Although water rights are commonly referring to freshwater, First Nations people also have rights to saltwater. Historically, sea levels were as low as 80m and there is evidence that First Nations people lived on what is now the seafloor, some 14m below current sea level. Land that is now covered by oceans was explored by sea Country people, showing the uniquely intimate relationship with the ocean. Knowledge of the sea is innate to culture. There are many creation stories about oceans, and while there are different variations between language groups, they often include an animal or spiritual being like a turtle or serpent who turned the waters salty.
The interaction between the land, water and sky is also significant to the creation of Country. From spiritual beings and animals travelling down from the sky creating lakes, rock formations and trees on their journey across the land, to stories of people and animals returning to the sky in the form of constellations, everything is intrinsically connected. The Country is telling the story of itself and of its people in all parts of itself.
Some language groups believe that spiritual and ancestral beings, who created Country, live at the bottom of rivers, lakes, and springs. Water is an embodiment of their power that continues to revive Country, keeping it strong. In the East Kimberley it is customary for visitors to rub a rock under their arms and throw it in the water as a way to introduce themselves to Country and the spirits that live beneath the water. In other areas, it is common for visitors to sip the water and spray it out in different directions. Again, this to signify that you are not from that Country, but you will look after it and in turn it will look after you.
In other countries, First Nations groups have successfully fought for water to have personhood, meaning that water has rights and duties in law. First Nations people already know this to be true. This is a remarkable feat as it has opened the door for more rights to be afforded to First Nations groups, and for strong water protections. The ebb and flow of surface and groundwater carves patterns into Country. The repetition of this, as the seasons change, is evidence of Country speaking to us as it retells us stories and guides us through the land we come from. These stories carry through art and song, but water is the original custodian of cultural knowledge. These ebbs and flows pulse through us in our veins; our wellbeing is reliant on water. This is true for both First Nations and non-Indigenous people.
Water is both tangible and intangible. You can see it, touch it, hear it, taste it, and smell it; yet it is also the nexus between Aboriginal spirituality and culture. In between the notion of the tangible and intangible lies the Western concept of ownership. In customary law Indigenous people are merely caretakers of Country. There is no sense of ownership, rather Country owns us. Here, the idea of water as intangible and spiritual is fundamental to why Indigenous people don’t own Country. We are born from Country and Country is within us. Ownership in Western law is a right. A right to buy an asset or commodity (i.e. water or land) and own it exclusively is inherent to Western values and law in Australia. The tension between these fundamental understandings of water are often difficult to reconcile.
Aqua nullius – this is a concept born from the absence of (physical) ownership over water by First Nations people and the Western assumption that if no human owned it, it was nobody’s water. Just as terra nullius denied Indigenous people the right to their land prior to Mabo [No 2], aqua nullius denies the existence of Indigenous people’s right to protect rivers and ancient aquifers, and the undeniable connection between water and culture. What is often forgotten is that Australia has many different legal systems co-existing and operating at any one time. Although Indigenous water rights are often not explicitly provided for under Western law, these inherent rights subsist today. Aqua nullius is yet to be overturned. These inherent cultural rights continue to be limited as long as aqua nullius underpins colonial legal systems.
Water has become highly politicised. The clash of Western economic interests and First Nations cultural interests is not new, and Country suffers the consequences. The constant pulling tension between economic interests and healthy Country is also here to stay. Water is often over allocated and not enough water is left in rivers for environmental or cultural flows to keep ecosystems, and the people that rely on it, healthy.
There are varying degrees of recognition of cultural flows for freshwater across state and territory legislation and within management frameworks, however, holdings and the ability to make decision around water remains fundamentally limited. In the Murray-Darling Basin, surface water holdings by Indigenous people constitute no more than 0.17% of the equivalent permitted take, and groundwater entitlements held by Indigenous entities constitute around 0.02% of all available groundwater. Collectively, this is less than 1 per cent of the market. Whilst the Government continues to look at how to improve Indigenous ownership of water, participation in decision-making, and developing a framework around ‘cultural flows’, First Nations people in the Basin continue to have very little control over how water is used and how it can support communities for wellbeing and prosperity. The flows of rivers are directly correlated with the wellbeing of communities. Access to and having self-determination over water is also a cultural right embedded in international law.
Water is also Indigenous Cultural and Intellectual Property (ICIP). ICIP rights protect the tangible and intangible of First Nations heritage – water is both literal and spiritual. ICIP rights, as provided for under international law, provide that due to the inherent connection to water and reliance for life, First Nations people must have equitable access to water for human and cultural rights to be exercised. This is arguable not only for water itself, but also for the stronger protection of stories, cultures and totems.
Properly protected ICIP rights enables First Nations people and communities to continue to practice traditional knowledge, have a role in managing Country, and assert already existing rights more clearly. Protecting ICIP rights of both fresh and salt water, supports the self-determination and empowerment of First Nations communities. Joint decision-making and opportunities to apply cultural knowledge in water management not only promotes self-determination, but this approach also supports the Government’s commitments under Closing the Gap, and fulfilling obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
While increased interest in Indigenous knowledge for water management presents opportunities, this also comes with risks. First Nations people already contribute their cultural knowledge and understandings of water to other parties in the management of water - this is their ICIP. Unless there are contracts in place stating that this ICIP remains legally owned by the Knowledge Holders, due to current laws in Australia, there is a risk that their ICIP – such as knowledge of rivers, flora and fauna – are legally given to others. This would be a breach of their ICIP rights.
Legal agreements between Knowledge Holders and other parties, such as government, non-government bodies, industry, research and private sectors, are essential to ensure that First Nations people can continue to be custodians and caretakers of their knowledge, and protect and preserve the integrity of their ICIP as it relates to water.
Partnerships around water can also not only protect ICIP, such partnerships also present opportunities to establish joint decision-making frameworks around water for mutually beneficial outcomes. This approach supports self-determination over water. Practically, this means for any water projects including First Nations people, including where cultural knowledge is offered, there must be specific clauses in contracts in place that assert these inherent rights around knowledge and self-determination, as provided for under international law. This approach can empower First Nations people in water management by proactively asserting these rights within partnerships in ways that fill the gaps within current Western laws.
Please get in touch with TJC if you would like any help with your water projects.
Indigenous Cultural and Intellectual Property Notice
There is ICIP in this blog. which belongs to the relevant Traditional Owners. ICIP refers to the rights of Aboriginal and Torres Strait Islander people to their cultural tangible and intangible heritage, comprising all objects, sites and knowledge, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, regarded as pertaining to a particular group or its territory.
Important legal notice
Any reference to laws and policies are for general use only. You should not rely on this document for legal advice. We recommend you obtain professional legal advice from a suitable, qualified legal practitioner.
References:  Geoff Bailey et al, ‘In a First Discovery of Its Kind, Researchers Have Uncovered an Ancient Aboriginal Archaeological Site Preserved on the Seabed’, The Conversation (1 July 2020) http://theconversation.com/in-a-first-discovery-of-its-kind-researchers-have-uncovered-an-ancient-aboriginal-archaeological-site-preserved-on-the-seabed-138108.  ‘How Water Became Salty’ https://austhrutime.com/salt_water_creation.htm.
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