More aqua nullius? The Traditional Owner Settlement Act 2010 and the neglect of indigenous rights to manage inland water resources.

Author:O'Bryan, Katie
Position::Australia, Victoria

CONTENTS I Introduction II Native Title as a Source of Indigenous Water Rights A Background to the NTA B The NTA and Native Title Rights to Water 1 Relationship between the NTA and the Common Law 2 Future Act Provisions: Section 24HA--Management of Water and Airspace 3 Future Act Provisions Affecting Native Title Rights to Inland Waters: Subdivisions M and P (a) Subdivision M: Treatment of Acts that Pass the Freehold Test (b) Subdivision P: Right to Negotiate 4 Future Act Provisions: Indigenous Land Use Agreements 5 General Provisions of the NTA Affecting Native Title Rights to Manage Inland Waters (a) Section 211: Preservation of Certain Native Title Rights and Interests (b) Section 212: Confirmation of Ownership of Natural Resources, Access to Beaches Etc 6 Judicial Consideration of Inland Water Rights (a) Ward and Inland Water Rights 7 Determinations of Native Title and Water Rights: Victoria C Concluding Remarks on Native Title III Victorian TOS Act A Background B The TOS Act as It Relates to Indigenous Water Rights C Consultation and Procedural Rights under the TOS Act: The Land Use Activity Regime 1 Overview 2 Definitions Applicable to Water Management D Joint Management 1 Background: The River Red Gums Act 2 Joint Management and the TOS Act E Concluding Remarks on the TOS Act IV Conclusion I INTRODUCTION

The Traditional Owner Settlement Act 2010 (Vic) ('TOS Act') was enacted in response to the deficiencies of the Native Title Act 1993 (Cth) ('NTA') in recognising the native title rights and interests of Victoria's Traditional Owners. (1) As an alternative to the NTA, it was described by then Premier, John Brumby as 'a fairer and more flexible way to resolve [native title] claims than under the [NTA]'. (2)

It is widely recognised that the NTA is particularly inadequate when it comes to providing for Indigenous participation in water management. (3) Whilst the TOS Act delivers on a number of Indigenous aspirations for land and natural resources management, the question arises as to whether or not it also delivers on Indigenous water management aspirations.

In light of the inadequacies of the NTA, this article will evaluate the TOS Act for its ability to facilitate the participation of Indigenous Victorians in water management. To provide some background and context for the TOS Act, this article first explains the main deficiencies of the NTA in relation to water rights, and then outlines the limited native title water outcomes achieved to date by Victoria's Traditional Owners. The article then considers the nature of water rights capable of being recognised under the TOS Act and the consultation and procedural rights under the land use activity regime (which is the TOS Act's equivalent of the NTA's future act regime). The final Parts of the article analyse the role of Aboriginal title (introduced by the TOS Act) and joint management (enhanced by the TOS Act) in facilitating Indigenous participation in water management. It concludes that the TOS Act does little to advance the aspirations of Victoria's Traditional Owners to have a greater role in water management.


Following the seminal 1992 High Court decision in Mabo v Queensland [No 2] ('Mabo'), (4) the legal fiction that Australia was 'terra nullius' or uninhabited was finally put to rest. The Mabo decision thus marked a watershed moment in Australia's history of settler relations with its original Indigenous inhabitants. With the rejection of the terra nullius doctrine (5) came the recognition that Australia's Indigenous peoples were the prior owners and occupants of this country, (6) and that any rights and interests that survived British acquisition of sovereignty could be recognised by the common law. (7) Native title thus emerged, albeit not unscathed, from the shadows of the land ownership regime imported by the colonial settlers.

Mabo was a direct challenge to conventional understandings of Australia's land management and property rights regimes, the very existence of which had been predicated on the assumption that there were no Indigenous rights to land. It was, therefore, imperative that a mechanism be put in place to deal with native title claims, and with activities occurring on land on which native title exists or may be found to exist in the future. Thus, the NTA was born. Following a change in government and the High Court decision in Wik Peoples v Queensland ('Wik'),8 the NTA was the subject of major amendments in 1998, (9) with a number of those amendments affecting Indigenous water rights. (10)

The following section identifies the provisions of the NTA that recognise Indigenous rights to participate in the management of water resources and evaluates their effectiveness in light of the relevant case law.

B The NTA and Native Title Rights to Water

1 Relationship between the NTA and the Common Law

Mabo established that the common law could recognise those native title rights and interests that had survived the acquisition of sovereignty by the British Crown, provided that such recognition did not 'fracture a skeletal principle of our legal system.' (11) The NTA then established a statutory regime for the recognition of native title. It is now the NTA rather than the common law to which Indigenous people turn if they wish to seek recognition in the courts of their native title rights and interests. (12) The common law and Mabo remain relevant, although only to a limited extent. (13)

Although Mabo referred expressly only to recognition by the common law of native title rights to land, (14) the NTA clearly encompasses native title rights in relation to water: the long title of the NTA refers to waters, (15) and the definition of native title includes references to waters. (16) Waters are then separately defined as including:

(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or

(c) the shore, or subsoil under or airspace over the shore, between high water and low water. (17)

Many determinations of native title provide their own definition of waters, usually of a less inclusive nature. (18) A separate definition of water also exists for the purposes of s 24HA of the NTA. The rationale for separate definitions and the discussion of native title determinations appear later, below.

A number of sections of the NTA relate to or have an impact on Indigenous water management rights. (19) The following is an analysis of the most significant, commencing with the aforementioned s 24HA.

2 Future Act Provisions: Section 24HA--Management of Water and Airspace

Section 24HA is one of the 'future act' provisions of the NTA. (20) It is of particular relevance because it relates to the management of water, the role of native title holders and claimants, and notification/opportunity to comment procedures. (21) This section was one of the 1998 amendments to the NTA, (22) implementing point eight of Prime Minister John Howard's 'Wik 10 Point Plan', (23) the government's response to the so-called 'uncertainty' it saw as having been created by the Wik decision. (24)

The term 'water', for the purposes of this section, means 'water in all its forms'. (25) This definition deliberately excludes the bed or subsoil under, or airspace over, any waters because it was intended that these would be generally dealt with elsewhere in the NTA. (26)

Under s 24HA, the making, amendment or repeal of legislation or the grant of a lease, licence, permit or authority that relates to the management or regulation of water is valid. (27) The non-extinguishment principle applies, (28) and compensation is payable for any effect the act may have on native title rights. (29)

Unlike future acts which relate to mining, (30) future acts under this section do not attract the right to negotiate. (31) Instead, they fall within the class of future acts to which only the rights to be notified and to have an opportunity to comment apply. These rights are found in s 24HA(7) and are limited to those acts contained in s 24HA(2). They do not apply to s 24HA(1) which relates to the making, amending or repeal of legislation. That is, native title holders do not have to be notified nor given an opportunity to comment on any proposed making, amending or repeal of legislation relating to the management or regulation of water that affects their native title rights. (32)

In relation to the future acts in s 24HA(2) and the corresponding rights in s 24HA(7), those rights are very limited in scope, as the following cases demonstrate.

The scope of the opportunity to comment was discussed in Harris v Great Barrier Reef Marine Park Authority ('Harris'). (33) In this case, the Full Federal Court stated:

The right under s 24HA(7)(b) is, we think, a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate. The subsection does not confer any greater right on the native title interests. It is not a right to participate in the decision whether to issue the permit or a right that entitles the recipients to seek information from the decision-maker necessary to satisfy those interests about matters of concern to them. (34) The Full Court made a clear distinction here between the right to comment, as found in s 24HA, and other rights, (35) such as those found in other parts of pt 2 div 3: the right to make submissions, (36) the right to object, (37) the right to be consulted (38) and the right to negotiate. (39) The Full Court was clearly of the view that the opportunity to comment was a lesser right and that if the legislature had intended it to be more substantial, it would have provided as such.

In relation to notification, the applicants in Harris argued that the common law requirements of procedural fairness entitled them to be provided with sufficient...

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