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Inquiry into the Water Amendment Bill 2008

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Inquiry into the Water Amendment Bill 2008

Australian Human Rights Commission

Submission to the Senate Rural and Regional Affairs and Transport Standing
Committee

7 November 2008

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Table of Contents

1 Introduction

  1. The Australian Human Rights and Commission (the Commission) makes this
    submission to the Senate Rural and Regional Affairs and Transport Standing
    Committee in its Inquiry into the Water Amendment Bill
    2008    .

2 Summary

  1. The Commission supports and commends the relevant state governments’
    and the ACT government’s progress in referring constitutional powers to
    the Commonwealth, enabling water resources in the Murray-Darling Basin to be
    managed in the national interest, optimising environmental, economic and social
    outcomes.

  2. However, the Commission is concerned that particular icon sites listed under
    the Ramsar Convention[1] are currently
    inadequately managed and protected. The Commission hopes that this will be
    improved under the new arrangements.

  3. Additionally, the Commission notes that the Ramsar Convention provides
    guidelines for establishing and strengthening local communities’ and
    indigenous peoples’ participation in the management of wetlands focusing
    on the need for indigenous engagement and participation, trust and capacity
    building, knowledge exchange, flexibility and
    continuity.[2] The Commission notes
    that to date there has not been appropriate inclusion of Indigenous peoples in
    Ramsar processes in Australia.

  4. The Commission notes that the Bill provides for the transfer of the current
    powers and functions of the Murray-Darling Basin Commission as outlined in the
    Murray-Darling Basin Agreement, to the new Murray-Darling Basin Authority. The
    Commission is concerned that there is currently no mandatory provision for
    Indigenous representation on the Authority or on the Advisory Committee’s
    established by the Authority.

  5. The Commission notes that the Bill aims to complement the Commonwealth
    Government’s Water for the Future plan announced by the Minister
    for Climate Change and Water on 29 April 2008, which provides $12.9 billion
    funding to support governance and water resource management reforms
    including:

    • (a) establish the Murray-Darling Basin Authority
    • (b) improve water information
    • (c) sustainable rural water use and infrastructure programs
    • (d) purchasing water to improve the health of the rivers and wetlands in the
      Murray-Darling Basin.

  6. The Commission notes that the Bill expands the mandatory content of the
    Basin Plan to include arrangements for ‘critical human water needs’
    for those communities dependent on the waters of the River Murray System.

  7. However, the Commission is concerned that the Bill does not include the
    rights of Indigenous peoples to water in the definition of ‘critical human
    water needs’.

  8. The Commission is concerned that the implications for native title and land
    rights have not been adequately considered or addressed. This is particularly
    relevant to the interplay between Indigenous land rights and cultural heritage
    regimes in each of the Basin states, and in the impact on native title rights
    and interests.

  9. The Commission is of the view that the Water Amendment Bill 2008 does
    not provide adequate protection of the rights and interests of the Indigenous
    peoples’ of the Murray-Darling River Basin.

  10. Further amendments to the Bill should expand the scope of the Bill to:
    • (a) Align the Water Act 2007 with federal and state legislation,
      particularly those relating to Aboriginal and Torres Strait Islander land
      rights, cultural heritage, environmental protection, the Native Title Act
      1993      , and climate change legislation when it is drafted.
    • (b) Realise the rights of Indigenous peoples whose country lies within the
      Murray-Darling River Basin, to participate in the management of the
      Murray-Darling River Basin and associated wetlands by providing for mandatory
      Indigenous representation on the Authority and associated advisory
      committee’s.
    • (c) Realise the rights of those Indigenous peoples whose country lies within
      the Murray-Darling River Basin to access allocations of water for cultural
      purposes by including Indigenous cultural flows as a priority identified under
      the proposed Part 2A, ‘Critical human water needs’.

3 Recommendations

  1. The Australian Human Rights Commission recommends that:
    • (a) the Government fully recognise the significance of the Murray-Darling
      River Basin to the Indigenous peoples whose lands lie within the Basin, and
      incorporate their distinct rights to water, the environment, economic
      development, participation and engagement into the Water Act 2007.
    • (b) the Water Amendment Bill 2008 provide that the power of the
      Authority to acquire, hold and dispose of real and personal property, to
      contract and to lease lands for the purposes of the Authority, must be with the
      exception of those lands secured for the benefit of Indigenous peoples and their
      communities, unless it is with the free, prior and informed consent of the
      Indigenous peoples whose rights are being affected.
    • (c) the Water Amendment Bill 2008 amend s 178(2) of the Water Act
      2007      , to make provision for mandatory Indigenous membership on the
      Murray-Darling Basin Authority; and s 202(5) of the Water Act 2007, to
      make provision for mandatory Indigenous membership on the Basin Community
      Committee.
    • (d) the Water Amendment Bill 2008 amend s 202(3) of the Water Act
      2007      , to provide that the Basin Community Committee must establish an
      Indigenous water subcommittee.
    • (e) Subsection 86A(2) of the Water Amendment Bill 2008 be expanded to
      recognise ‘Indigenous cultural flows’ as a ‘critical human
      water need’.
    • (f) the Water Amendment Bill 2008 amend s 202(7) of the Water Act
      2007      , to specifically provide that water users for Indigenous cultural
      purposes is included in the definition of water users.

4 Scope and Intent of the
Bill

  1. The Commission notes that the Bill amends the Water Act 2007 which
    commenced on the 3 March 2008.

  2. The Bill gives effect to the intergovernmental Agreement on
    Murray-Darling Basin Reform     (Reform IGA), which was signed by the Prime
    Minister, and the Premiers of New South Wales, Victoria, Queensland and South
    Australia, and the Chief Minister of the Australian Capital Territory at the
    Council of Australian Governments Meeting on 3 July 2008.

  3. The Bill will:
    • (a) enable the transfer of the current powers and functions of the
      Murray-Darling Basin Commission to the new Murray-Darling Basin Authority
    • (b) strengthen the role of the Australian Competition and Consumer
      Commission by extending the application of the water market rules and water
      change rules
    • (c) enable the Basin Plan to provide arrangements for meeting critical human
      water needs.
  4. The Bill will be based on a combination of Commonwealth constitutional
    powers and a referral of certain powers from the Basin States to the
    Commonwealth.

5 The
Indigenous peoples of the Murray Darling

  1. Indigenous peoples are connected to and responsible for their land and
    waters and in turn Indigenous peoples obtain and maintain their spiritual and
    cultural identity, life and livelihood from their lands and waters.

  2. The Murray- Darling River Basin is home to a number of Indigenous
    Traditional Owner groups across the five states and territory. These Traditional
    Owner groups include the Ngarrindjeri, Kaurna, Peramangk, Wamba Wamba, Wadi
    Wadi, Wiradjuri, Yorta Yorta, Muthi Muthi, Mungatanga, Barkindji, Taungurung,
    Latji Latji, Wergaia, Wotjabulak, Barapa Barapa, Gamiloroi, Bugditji, and
    Nyiamppa Nations.

  3. The Traditional Owner groups of the Murray-Darling River Basin region
    identify as Indigenous Nations. For the purposes of this submission, the term
    ‘Indigenous Nations’ will be used to mean the same as
    ‘Indigenous peoples’.

  4. While these Indigenous Nations, are independently identified based on their
    inherent cultural diversity and their traditions, sites, stories and cultural
    practices; they all share a vision for the Murray-Darling River Basin –
    and that is a healthy, living river with natural flows and cycles, sustaining
    communities and preserving its unique values.

  5. The Indigenous Nations of the Murray-Darling River Basin possess distinct
    cultural and customary rights and responsibilities including: a spiritual
    connection to the lands, waters and natural resources of the Basin; management
    of significant sites located along the river banks, on the river beds, and sites
    and stories associated with the water and natural resources located in the
    rivers and their tributaries; protection of Indigenous cultural heritage and
    knowledge; accessing cultural activities such as hunting and fishing, and
    ceremony.

  6. For the Indigenous Nations of the Murray-Darling River, the water is not
    separate to the river and the river is not separate from the water. The river
    incorporates all of the lands and natural resources that rely on the water, and
    without the necessary management of the river and its lands and natural
    resources the water disappears.

  7. The river provides life through food and quality drinking water to
    Indigenous Nations, as it does to the Australian community. It has spiritual and
    cultural significance and also provides natural medicines to heal sickness, and
    enjoyment for recreational purposes. The natural flows and cycles feed all the
    rivers parts such as the tributaries, creeks, and nurseries. The native wildlife
    and plant depend on the river for survival. The entire ecosystem in and around
    the river needs to be maintained and looked after. If water is unhealthy,
    everything else will decline.[3] Indigenous peoples have an obligation under their traditional law and custom to
    protect, conserve, and maintain the environment and the ecosystems in their
    natural state to ensure the sustainability of the whole environment.

  8. Historically Indigenous peoples have been excluded from water management.
    There are low levels of awareness among Indigenous peoples of water institutions
    and regulation.[4] Indigenous
    Australians have had little to no involvement in state, territory and national
    consultation processes, and the development of water policy, and this has
    resulted in a limited capacity to negotiate enforceable water
    rights.[5]

  9. With Australia being a country of physical water scarcity, the Commission is
    concerned about the capacity for the recognition of Indigenous rights and access
    to water. In the context of the predicted significant impacts of drought and
    climate change, securing Indigenous cultural water rights will become
    increasingly important.

5.1 Indigenous
Peoples’ human rights

  1. The Australian Government has ratified a number of international human
    rights instruments, including the International Covenant on Civil and Political
    Rights (ICCPR), the International Covenant on Economic, Social and Cultural
    Rights (ICESCR), and the Convention of the Elimination of all forms of Racial
    Discrimination (CERD). The Australian Government has an obligation to ensure the
    full enjoyment and exercise of these human rights for its citizens, including
    Indigenous peoples.

  2. Indigenous peoples have a right to the equal exercise and enjoyment of their
    human rights. As articulated by AIATSIS:

    Clean water access is
    critical for health in all communities. In Indigenous communities’ lack of
    supply of clean water is linked to high morbidity and mortality rates. Unlike
    the broad rural demographic trends of rural to urban migrations and an ageing
    population, Indigenous Nations are staying on their lands and Indigenous
    communities have growing, young populations. Supporting these Indigenous
    communities is integral to the support of the socio-economic viability of rural
    Australia. The provision of services and infrastructure and the future
    development of growing Indigenous communities and Nations should be incorporated
    into planning objectives.[6]

  3. In addition, as Indigenous peoples, the Murray-Darling River Indigenous
    Nations hold a special status as the first peoples of the lands and waters. As
    such, they must be afforded a number of distinct rights that recognise their
    rights to; their lands, waters, and natural resources; self determination; and
    engagement and participation in government processes that directly or indirectly
    impact on their lives.

  4. The following internationally recognised rights are particularly relevant to
    the Indigenous Nations of the Murray-Darling Basin:



    (a) The right to water

    The right to water is a human
    right that is protected in a wide range of international instruments, including
    the ICESCR, ICCPR and the Declaration on the Rights of Indigenous
    Peoples.[7] The ICESCR provides an
    implicit right to water, recognising that it contributes to achieving an
    adequate standard of living and the right to enjoyment of the highest attainable
    standard of physical and mental health. The ICESCR and the ICCPR also recognises
    people’s right to freely dispose of their own natural resources where in
    no case can ‘a people be deprived of its own means of subsistence.’

‘The human right to water entitles everyone to sufficient, safe,
acceptable, physically accessible and affordable water for personal and domestic
uses.’[8] There is a
fundamental link between accessing water and living in dignity which means that
the human right to water is receiving increased attention and recognition both
in Australia and worldwide.[9] The
right to water is linked to many other rights including the right to food, the
right to health and the right to take part in cultural
life.[10]

The Declaration on the Rights of Indigenous Peoples further supports
Indigenous people’s rights to access, conservation and economic
development of water. It provides that Indigenous peoples have a right to
maintain and strengthen the distinctive Indigenous spiritual relationship with
‘traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas.’ It also provides that Indigenous peoples have
the right to conservation and protection of Indigenous lands and resources with
state assistance and the right to development for all Indigenous lands and
resources including water. Allocations of water for cultural purposes (cultural
flows) to the Indigenous Nations of the Murray-Darling River Basin will be
integral to fully realise their rights to water.

(b) The right to a healthy environment

Environmental rights
include the rights of access to the unspoiled natural resources that enable
survival such as land, shelter, food, water and air; the right to refuse
development; and specific environment-related rights of Indigenous peoples.

Environmental rights are provided for by international instruments including
the Convention on Wetlands of International Importance especially as Waterfowl
Habitat (RAMSAR Convention), the Convention on Biological Diversity, the Rio
Declaration and Agenda 21.

The Rio Declaration recognises the vital role of Indigenous
communities’ knowledge and traditional practices in environmental
management.

Agenda 21[11] is a comprehensive
plan of action to be taken globally, nationally and locally by organisations of
the United Nations, governments, and major groups in every area where there are
human impacts on the environment. It provides for the protection and management
of freshwater resources recognising the effects that climate change will have on
water and Indigenous peoples.[12] Agenda 21 identifies the need to engage Indigenous people in water management
policy-making and decision-making; improve Indigenous technologies to fully
utilise limited water resources and to safeguard those resources against
pollution; recognise the interconnection between economic development and access
and supply of water.[13]

The Ramsar Convention provides for the conservation and wise use of all
wetlands and their resources ‘through local, regional and national actions
and international cooperation, as a contribution towards achieving sustainable
development throughout the
world.’[14] Australia
currently has 64 Ramsar sites, with some of these located on the Murray-Darling
River Basin. The Convention provides guidelines for establishing and
strengthening local communities’ and indigenous people’s
participation in the management of wetlands focusing on the need for Indigenous
engagement and participation, trust and capacity building, knowledge exchange,
flexibility and continuity.[15]

The Convention on Biological Diversity’s objective is to sustain all
life on earth, including aquatic ecosystems, with the global goal to reverse and
stop the loss of biodiversity. The Convention is directly linked with the Ramsar
Convention through the Conference of the Parties (COP) decisions as the two
conventions overlap in dealing with similar subject matter. The Convention on
Biological Diversity provides for the respect, preservation and maintenance of
knowledge, innovations and practices of Indigenous and local communities
relevant for the conservation and sustainable use of biological diversity. Many
of the decisions of the COP call for the full and effective participation of
Indigenous communities in order to achieve the global goal.

(c) A right to economic development

The ICESCR and the
Declaration on the Rights of Indigenous Peoples provide for Indigenous peoples
to access and use their lands, waters and natural resources for economic
development and building sustainable communities.

  1. At the domestic level, Indigenous peoples’ rights require legislative
    protection. In the development of legislative frameworks such as those relevant
    to land, water, and natural and cultural heritage, the following must be
    protected:

    • (a) the full participation and engagement of Indigenous peoples in the
      development of policy and legislation that directly or indirectly affects their
      lives and their rights
    • (b) the adoption of and compliance with the principle of free, prior and
      informed consent
    • (c) the protection of Indigenous interests, specifically access to our
      lands, waters and natural resources
    • (d) the protection of Indigenous areas of significance, biodiversity, and
      cultural heritage
    • (e) the protection of Indigenous knowledge’s
    • (f) access and benefit-sharing through partnerships between the government,
      private sector, and Indigenous communities
    • (g) non-discrimination and substantive equality.

  2. Additionally, while the Bill creates a certain degree of consistency through
    the referral of powers of the States to the Commonwealth, the Commission is
    concerned about the impact of the Bill on the capacity for Indigenous peoples to
    fully exercise and enjoy their rights to their lands and waters obtained through
    the Native Title Act 1993 (Cth), and the various state land rights and
    cultural heritage regimes.

  3. The Commission notes that the proposed Part 11A, addresses the
    interplay between the Water Act 2007 and State
    laws.[16]

  4. The Commission notes that the Water Act 2007 does not affect the
    operation of the Native Title Act
    1993    .[17]

  5. However, the Commission is concerned that some amendments included in the Water Amendment Bill 2008 may limit the rights of the Indigenous Nations
    of the Murray-Darling River Basin and that further amendments may be required to
    strengthen the ability of Indigenous peoples to protect their rights to their
    lands, waters, and natural resources within the Murray-Darling River Basin
    region.

  6. This must be assured through effective and guaranteed Indigenous
    representation on the relevant Committee’s of the Authority, and that the
    rights and interests of the Murray-Darling River Indigenous Nations to their
    lands, waters and natural resources are adequately protected under this
    legislation.

  7. The Commission recommends that the Government fully recognise the
    significance of the Murray-Darling River Basin to the Indigenous Nations whose
    lands lie within the Basin, and that they take this opportunity to incorporate
    their distinct rights to water, the environment, economic development and
    participation and engagement into the Water Act 2007.

  8. The Commission’s particular concerns are addressed
    below.

6 Submission in relation
to Schedule 1 – Amendments based on referrals of power

  1. The Commission supports the referral of powers to the Commonwealth by the
    referring States and the ACT as this will increase the ability for water
    resources in the Murray –Darling River Basin to be managed in the national
    interest, and the potential to optimise environmental, economic and social
    outcomes.

  2. The Commission is optimistic that the referral of powers to the Commonwealth
    will result in a more consistent approach in the development and implementation
    of policy and strategies relevant to the Murray-Darling River Basin, and
    increase the capacity for Murray-Darling River Indigenous Nations to participate
    and engage in relevant government processes.

  3. It is also encouraging to see that the Department of Climate Change and
    Water is working collaboratively with the Department of the Environment, Water,
    Heritage and the Arts to support governance and water resource management
    reforms aimed at improving water information, sustainable rural water use and
    infrastructure programs, and purchasing water to improve the health of the river
    and wetlands in the Murray-Darling River Basin. As identified by the Minister
    for Climate Change and Water, the Honorable Penny Wong:

    This Bill is
    about building a viable future for the Murray-Darling Basin in the face of
    climate change...For the first time an agreement to manage the Murray-Darling
    Basin in the national interest: for the first time to reflect the fact that the
    Murray-Darling runs across borders and needs to be managed in the national
    interest. So this Bill is about building a viable, long-term future for the
    Murray-Darling in the face of climate change.

  4. However, the Commission is concerned that the current Indigenous policy
    platform remains isolated, disconnected and disjointed. If there is to be real
    change in Indigenous peoples lives, governments must work collaboratively and
    develop policy that deals with Indigenous disadvantage from a holistic
    perspective. This includes ensuring Indigenous participation and engagement in
    governance and water management reform processes and strategies to improve the
    health of the river and wetlands in the Murray-Darling River Basin, as well as
    mitigating the impacts of climate change on the Basin.

6.1 Functions, powers
and duties of the Authority and the Basin Community Committee

  1. The Bill will give effect to a key outcome of the Reform IGA bringing the
    Murray-Darling Basin Authority (established by the current Act) and the
    Murray-Darling Basin Commission (established by the current Murray-Darling Basin
    Agreement) together as a single institution, to be known as the Murray-Darling
    Basin Authority. This enables the transfer of the current powers and functions
    of the Murray-Darling Basin Commission to the new Murray-Darling Basin
    Authority.[18]

  2. The Commission supports this amendment on the basis that it will align
    processes and create consistency in approach and application of the management
    and protection requirements relevant to the Murray-Darling River Basin.

  3. The Commission notes that proposed section 18E(3) provides additional
    functions, powers and duties of the Authority, namely to acquire, hold and
    dispose of real and personal property, to contract and to lease land provided
    for in section 173[19] of the Act
    which can be used to fulfil its functions and duties under Part 1A.

  4. Within the Murray-Darling Basin, Indigenous peoples currently hold less than
    0.2% of land, this is despite land reforms such as the NSW Aboriginal Land
    Rights Act 1983     and the Native Title Act, designed specifically to
    address the dispossession of Indigenous peoples from their lands and waters.
    This disparity in land tenure will have a number of flow-on implications.

  5. Firstly, the current disparity of Indigenous land tenure with the
    Murray-Darling River Basin means that it is highly likely that access to water
    for Indigenous peoples will be severely restricted if the government does not
    take proactive steps, such as those recommended in this submission, to protect
    that access.[20]

  6. Secondly, there is a direct overlap between water rights and native title
    rights and interests. While Indigenous water rights are recognised under the
    National Water Initiative, and other Commonwealth and state mechanisms, many of
    these are contingent on positive native title determinations or land rights
    negotiations. However, native title will be very difficult, if not impossible to
    prove in the Murray-Darling region. The Victorian Government in particular has
    acknowledged that ‘the onerous bar set by the courts in Yorta
    Yorta     of proof of the continuous existence and vitality of a pre-sovereignty
    normative society through to the current day is so difficult to reach’,
    given the history of dispossession and dispersal in the
    state[21]. The Wotjabulak Indigenous
    Nation has been the only group in the Basin to be successful in a determination
    of native title. Consequently, the nexus between native title and Indigenous
    water rights effectively means that water rights will not be realised.

  7. The Commission is concerned that the rights of Murray-Darling Rivers
    Indigenous Nations that have been successful in gaining recognition of their
    native title, land rights and/or cultural heritage protection, will be
    threatened by the proposed amendments in the Bill. The amendments can conflict
    with the rights of Indigenous peoples to control their land, waters and natural
    resources. The power to acquire, hold and dispose of real and personal property
    could further disadvantage Indigenous peoples and their communities that rely on
    the Murray-Darling River Basin for the livelihoods.

  8. The Commission urges the Authority, in its implementation of the
    legislation, to ensure that its actions are not only consistent with the
    procedural rights afforded to Traditional Owners by the Native Title Act
    1993     (Cth), but that the free, prior and informed consent of Indigenous
    peoples is obtained before decisions affecting their lands and waters are made.

  9. The Commission urges the Commonwealth Government to act in good faith and
    ensure that Indigenous peoples rights to their lands and waters are afforded the
    highest consideration in activities and actions undertaken by the Government and
    the Murray-Darling Basin Authority.

  10. In light of these issues, the Commission recommends that the power of the
    Authority to acquire, hold and dispose of real and personal property, to
    contract and to lease lands for the purposes of the Authority be with the
    exception of those lands secured for the benefit of Indigenous peoples and their
    communities, unless it is with the free, prior and informed consent of those
    Indigenous peoples whose rights are being affected.

6.2 Membership of
Authority, the Basin Community Committee, and relevant
subcommittee’s

  1. The Commission notes that while the functions, powers and duties of the
    Authority and the Basin Community Committee are considered in the Amendment
    Bill, the constitution of the Authority, the Basin Community Committee, and its
    related sub-committee’s remain the same, and do not provide for mandatory
    Indigenous representation.



    (a) Membership of the Murray-Darling Basin Authority

Membership of the Murray-Darling Basin Authority is
provided for at Part 9, Division 2, Subdivision B, of the Water Act 2007. Section 177 provides that the Authority’s membership consists of (a) a
Chair; and (b) 4 other members. These members are to be appointed by the
Governor-General by written
instrument[22], and may only be
eligible for appointment as an Authority member if they have a high level of
expertise in one or more fields relevant to the Authority’s functions
(including water resource management, hydrology, freshwater ecology, resource
economics, irrigated agriculture, public sector governance, and financial
management); and not a member of the governing body of a relevant interest
group.[23]

(b) Membership of the Basin Community
Committee[24]

Membership
of the Basin Community Committee is provided for at Part 9, Division 3,
Subdivision D, of the Water Act 2007. Section 202 (4) provides that the
Basin Community Committee consists of a Chair and up to 16 other members as the
Authority appoints from time to time under subsection 204 (1). The Basin
Community Committee’s membership must include: (a) at least one Authority
member; and (b) at least 8 individuals who are water users or representatives of
one or more water users.[25] Water
users are defined as a person who is engaged in: irrigated agriculture;
environmental water management; uses water for industrial purposes; or uses
stock and domestic water.[26]

  1. The Commission recommends that the Water Amendment Bill 2008 amend
    s 178(2) of the Water Act 2007 to provide for mandatory Indigenous
    membership on the Murray-Darling Basin Authority, and to s 202(5) to provide for
    mandatory Indigenous membership on the Basin Community Committee.

  2. Further, membership on the Authority and related Committee’s must be a
    representative of the Murray-Darling Rivers Indigenous Nations, and the process
    for appointment of Authority and Committee Members must be decided upon by the
    peoples of the Murray-Darling River Indigenous Nations in accordance with their
    rights international treaties.

  3. This will facilitate the engagement and participation in policies and
    decision-making that directly or indirectly affects the lives of Indigenous
    peoples and their ability to exercise and enjoy their human rights.

  4. Section 202 (3) of the Water Act 2007 provides the Basin Community
    Committee must establish (a) an irrigation subcommittee; and (b) and
    environmental water subcommittee; and may establish other subcommittees.

  5. In order to give full recognition to the rights of Indigenous peoples to
    access and benefit from their lands and waters, the Commission recommends that
    the Water Amendment Bill 2008 amend s 202(3) of the Water Act
    2007    , to provide that the Basin Community Committee must also establish an
    Indigenous water subcommittee.

  6. The importance of adequate Indigenous representation is further highlighted
    by the proposed s86C of the Water Amendment Bill 2008, which provides for
    additional matters relating to monitoring, assessment and risk management
    considered in the Basin Plan.

  7. The full participation and engagement of the Murray-Darling Rivers
    Indigenous Nations is essential to ensuring that areas of significance and the
    interests of the Murray-Darling Rivers Indigenous Nations are adequately
    protected, and that management and risk aversion strategies are developed in
    coordination with the relevant Indigenous peoples. This is particularly
    important where climate change will increasingly impact on the health of the
    river, and the rights of Indigenous peoples.

6.3 Managing water
access rights etc. for the Living Murray Initiative

  1. The proposed s18H of the Water Amendment Bill 2008 requires the
    Authority, if so provided for under the Living Murray Initiative, to
    manage the water rights and interests held under the Living Murray
    Initiative,     in accordance with, and to give effect to, the Initiative.
    The Living Murray Initiative is defined by the proposed
    s18H(2).[27]

  2. The Commission notes that consultations were conducted by the Murray-Darling
    Basin Commission with the Murray-Darling Rivers Indigenous Nations to report to
    the Ministerial Council on community engagement. The Murray –Darling Basin
    Commission, commissioned the Report to the Murray-Darling Basin Commission
    – Indigenous Response to the Living Murray
    Initiative[28]     to detail
    Indigenous responses to issues concerning the communities knowledge, values,
    aspirations, issues information needs and concerns in relation to the vision of
    the Ministerial Council related to the Murray-Darling River Basin.

  3. The Commission recommends this report be considered by the Senate Committee
    and the Government to inform the current Water Amendment Bill
    2008.

6.4 Critical human
water needs

  1. The proposed item creates a new Part 2A, which requires the Basin Plan to
    include certain arrangements for meeting critical human needs as provided for in
    the Reform IGA.

  2. The Water Amendment Bill 2008, defines critical human water
    needs     as the needs for a minimum amount of water, that can only reasonably
    be provided from Basin water resources required to meet: (a) core human
    consumption requirements in urban and rural areas; and (b) those non-human
    consumption requirements that a failure to meet would cause prohibitively high
    social, economic, or national security
    costs.[29] The Bill identifies
    critical human needs as the highest priority use for communities who are
    dependent on Basin water resources; and to give effect to this priority in the
    Murray River system, conveyance
    water[30] will receive first
    priority from the water available in the
    system.[31]

  3. The Water Act 2007 currently provides for the mandatory consideration
    of the uses of Basin water resources (including by Indigenous peoples) and
    social, cultural, Indigenous circumstances of Basin communities dependent on the
    Basin water resources.[32]

  4. The Commission is concerned that Indigenous water needs are not adequately
    addressed by the proposed provisions in the Water Amendment Bill 2008 related to critical human water needs.

  5. The Commission acknowledges that the legislation currently provides for the
    recognition of environmental water, and that the Authority must have regard to
    social, cultural and Indigenous issues in the Basin Plan.

  6. However, the Indigenous Nations of the Murray-Darling River Nations argue
    that they require specific cultural water allocations, which they refer to as
    ‘cultural flows’, to meet their spiritual, cultural, social,
    economic and environmental management responsibilities and development
    aspirations.

  7. The Indigenous Nations of the Murray-Darling River Basin define cultural
    flows as:

    ‘water entitlements that are legally and
    beneficially owned by the Indigenous Nations of a sufficient and adequate
    quantity and quality to improve the spiritual, cultural, environment, social and
    economic conditions of those Indigenous
    Nations’.[33]

  8. The Indigenous Nations of the Murray-Darling River Basin distinguish between
    cultural and environmental water. They argue that:

    The difference
    between environmental and cultural water is that it is the Indigenous peoples
    themselves deciding where and when water should be delivered based on
    traditional knowledge and their aspirations. This ensures Indigenous peoples are
    empowered to fulfil their responsibilities to care for
    country.[34]

  9. The impacts and benefits of cultural water to Indigenous peoples
    include:

    • (a) empowerment and social justice - water is being delivered to country by
      the peoples
    • (b) growing native plants
    • (c) protecting and hunting animals
    • (d) song, dance, art and ceremony
    • (e) spiritual sites
    • (f) improved cultural-economic and health outcome through the provision of
      food, medicines and materials for
      art.[35]

  10. The Indigenous Nations of the Murray-Darling River Basin understand that the
    volume of water required to bring the Rivers back to a healthy state is
    well-known. Therefore questions of volume for cultural water need to be explored
    through scoping work with the Indigenous Nations, and that is negotiated using
    informed consent and good faith
    processes.[36]

  11. The Commission recommends that s86A (2) of the Water Amendment Bill 2008, be expanded to recognise Indigenous cultural flows as a ‘critical
    human water need’.

  12. Further, the Commission recommends that the Water Amendment Bill 2008 amend s 202(7), to include the use of water for Indigenous cultural purposes
    in the identification of water
    users.

[1] Australia was one of the first
countries to sign the Ramsar Convention, and Australia designated the world's
first Wetland of International Importance: Cobourg Peninsula Aboriginal Land and
Wildlife Sanctuary in the Northern Territory, in 1974. The Ramsar Convention is
directly linked to the Convention on Biological Diversity and Ramsar wetlands
are recognised as a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act
1999.

[2] Guidelines for
establishing and strengthening local communities’ and indigenous
people’s participation in the management of wetlands, adopted as an annex
to Resolution VII.8 (1999). At http://www.ramsar.org/key_guide_indigenous.htm (viewed 3 October 2008).

[3] M
Morgan, L Strelein, J Weir, Indigenous Rights to Water in the Murray Darling
Basin – in support of the Indigenous final report to the Living Murray
Initiative, Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS), Research Discussion Paper No.14, 2004, The Native
Title Unit, AIATSIS.

[4] S Jackson,
(CSIRO), Indigenous Interests and the National Water Initiative Water
Management, Reform and Implementation Background Paper and Literature
Review, (2007), pp 65-6. At http://www.nailsma.org.au/nailsma/publications/downloads/NAILSMA_NWI_Review_UPDATEDec07.pdf (viewed 26 July 2008).

[5] M
Durette, Indigenous Legal Rights to Freshwater: Australia in the
International Context, (2008) Centre for Aboriginal Economic Policy Research
Working Paper No. 42/2008, p vii. At http://www.anu.edu.au/caepr/Publications/WP/CAEPRWP42.pdf (viewed 28 August 2008).

[6] M
Morgan, L Strelein, J Weir, Indigenous Rights to Water in the Murray Darling
Basin – in support of the Indigenous final report to the Living Murray
Initiative, Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS), Research Discussion Paper No.14, 2004, The Native
Title Unit, AIATSIS.

[7] Office of
the United Nations High Commissioner for Human Rights, Right to Water. At http://www.unhchr.ch/html/menu2/6/water/index.htm,
(viewed 3 October 2008).

[8] Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in
the Implementation of the International Covenant on Economic, Social and
Cultural Rights, General Comment No. 15 (2002) The right to water (arts. 11 and
12 of the International Covenant on Economic, Social and Cultural Rights)
(2002). At: http://daccessdds.un.org/doc/UNDOC/GEN/G03/402/29/PDF/G0340229.pdf?OpenElement (viewed 9 October 2008). See also Substantive Issues arising in the
implementation of the International Covenant on Economic, Social and Cultural
Rights General Comment No. 14 (2000). The right to the highest attainable
standard of health (article 12 of the International Covenant on Economic, Social
and Cultural Rights). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument (viewed 9 October 2008).

[9] Office
of the United Nations High Commissioner for Human Rights, Right to Water.
At http://www.unhchr.ch/html/menu2/6/water/index.htm (viewed 3 October 2008). See also J Gray and J Nolan, Editorial, (2008) Human
Rights Defender, 17 (1) 1, p 1.

[10] Office of the United
Nations High Commissioner for Human Rights, Right to Water. At http://www.unhchr.ch/html/menu2/6/water/index.htm (viewed 3 October 2008).

[11] Agenda 21 was adopted by more than 178 Governments, including Australia,
at the UN Conference on Environment and Development in 1992. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[12] Agenda 21, Chapters 18 and 26. Chapter 26 specifically relates to
recognising and strengthening the role of Indigenous People and their
Communities. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[13] Agenda 21, Chapter 18. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).

[14] Convention of the Parties 2002, Convention on Wetlands of International
Importance especially as Waterfowl Habitat, Ramsar, 1971. At www.ramsar.org (viewed 3 October 2008).

[15] Guidelines for establishing
and strengthening local communities’ and indigenous people’s
participation in the management of wetlands, adopted as an annex to Resolution
VII.8 (1999). At http://www.ramsar.org/key_guide_indigenous.htm (viewed 3 October 2008).

[16] Item 45 repeals Division 2, Part 1 of the Water Act 2007. The substance
of this Division is now provided for in Part 11A. SeeThe Parliament of the
Commonwealth of Australia, Water Amendment Bill 2008, Explanatory
Memorandum, House of Representatives, 2008 p
26.

[17] The Water Act 2007, s13.

[18] The Parliament of
the Commonwealth of Australia, Water Amendment Bill 2008, Explanatory
Memorandum, House of Representatives,
2008.

[19] s 173 (1)(a) of the Water Act 2007, provides that: The Authority has the power to do all
things necessary or convenient to be done for or in connection with the
performance of its functions, other than the power (a) to acquire, hold and
dispose of real and personal property; or (b) enter into contracts; or (c) to
lease the whole or any part of the land or building for the purposes of the
Authority.

[20] Murray Lower
Darling Rivers Indigenous Nations, Cultural Flows, undated.

[21] Hulls
R,Attorney-General Victoria, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission, 16 September 2008.

[22] Water Act 2007, s 178
(1).

[23] Water Act 2007, s 178 (2) & (3).

[24] Water Act 2007, s 202 (2), provides that the Basin Community
Committee’s function is to advise the Authority about the performance of
the Authorities functions, including advising about: (a) engaging the community
in the preparation of each draft Basin Plan; and (b) community matters relating
to the Basin water resources; and (c) matters referred to the Committee by the
Authority.

[25] Water Act
2007, s 202 (5).

[26] Water Act 2007, s 202
(7).

[27] The Living Murray
Initiative, is the Intergovernmental Agreement on Addressing Water
Over-allocation and Achieving Environment Objectives in the Murray-Darling Basin
of 25 June 2004 read together with: (a) the Supplementary Intergovernmental
Agreement on Addressing Water Over-allocation and Achieving Environmental
Objectives in the Murray-Darling Basin of 14 July 2006; and (b) arrangements
referred to in clause 3.9.2 of the Agreement on Murray-Darling Basin
Reform-Referral, as defined in the Water Amendment Bill 2008, s18H(2).

[28] Farley
Consulting Group, Report to the Murray-Darling Basin Commission –
Indigenous Response to the Living Murray Initiative, commissioned by the
Murray-Darling Basin Commission, April
2003.

[29] The Water Amendment
Bill 2008, s86A (2).

[30] Water Amendment Bill 2008, s86A (4). Conveyance water is defined as water
in the River Murray system required to deliver water to meet critical human
water needs as far downstream as Wellington in South
Australia.

[31] Water
Amendment Bill 2008, s86A
(1).

[32] Water Act 2007, s21 (4)(v), and s22 (1)

[33] Murray Lower Darling Rivers Indigenous Nations, Cultural Flows, undated.

[34] Murray Lower
Darling Rivers Indigenous Nations, Cultural Flows, undated.

[35] Murray Lower
Darling Rivers Indigenous Nations, Cultural Flows, undated.

[36] Murray Lower
Darling Rivers Indigenous Nations, Cultural Flows, undated.