By Lana D Hartwig. PhD candidate, Australian Rivers Institute.
In July 2017, ABC’s Four Corners program claimed that millions of dollars of water was being stolen by large irrigators in north-western New South Wales (NSW) and southern Queensland. Over the past seven months, ongoing political and criminal investigations have scrutinised water theft claims as well as raised questions about governmental water management practices.
This issue is particularly pertinent in western NSW and the Darling River; the same region where it has been argued the NSW Government’s water plans have failed to recognise and accommodate the Barkandji Aboriginal People’s established legal native title rights, as our new study outlines.
For the Barkandji People, the Barka (the Darling River) is of deep significance in interconnected ways. Their name literally means ‘the people of or belonging to the river’ in the Barkandji language.
After a near-18 year legal battle, in June 2015 the Federal Court determined the Barkandji People are native title holders. Significantly, this decision recognised the Barkandji People’s ongoing and unbroken legal rights relating to the enjoyment and use of water – including parts of the Darling River – and its associated resources and landscapes.
What the Barkandji People did not anticipate, however, was that the struggle to have their water rights respected, recognised and protected, including within NSW water management regimes, was only just beginning. Seeking to raise awareness about their river health concerns and generate government action, Barkandji Traditional Owners have organised and attended several rallies and protests in towns along the Darling River and even in Canberra over the past two years.
Water management is an especially contentious issue in Australia, especially in the state of NSW which has some of our most over-allocated water systems. Here, and in other parts of Australia, unsustainable farming practices and prolonged overuse of water has caused significant ecological degradation to rivers and wetlands.
In recent decades, Australian governments have attempted to ameliorate this environmental degradation by introducing mechanisms like capping water extractions and returning water to the environment.
Over a similar time period, Australian governments implemented a number of measures aimed to address historic and ongoing land dispossession injustices. These measures collectively have seen over 30% of Australia’s landmass handed back to First Nations Peoples (though with varied levels of control and influence).
Little comparable action, however, has occurred in regards to recognising Aboriginal peoples’ water rights. In fact, it was only in 2004 that Australia’s national water policy first acknowledged the existence of Aboriginal water rights and interests.
The NSW Government is one of the very few jurisdictions to have included provisions focused on Aboriginal water access in its water regimes. For example, under NSW water management legislation, native title rights are to be protected through enforceable regulatory water planning instruments called ‘Water Sharing Plans’.
The Barkandji’s native title claim overlaps with five of these Water Sharing Plans, all of which contain explicit provisions allowing them to be updated if and when a native title determination is handed down. To date, however, no Plan has been amended despite the Barkandji now being established legally recognised native title holders for over two and a half years.
Significantly, one of these Plans was introduced one year after the Barkandji native title claim was determined. Yet, this Plan states: ‘At the commencement of this Plan, there are no native title rights in these water sources.’
In our research article, we draw from the Barkandji People’s struggles in engaging with water regimes to analyse the outcomes of Aboriginal water claims more broadly. We reveal that these attempts at recognition can have problematic outcomes, whether intended by governments or not. We characterise these outcomes as ‘misrecognition’ and ‘non-recognition’ and describe the associated implications for Aboriginal peoples. The paper calls for more scrutiny of government implementation of the measures designed to protect native title.
This work appeared in the open-access journal Resources. You can read the full research article here.