State of the Environment

2001

Inland Waters Theme Report

Australia State of the Environment Report 2001 (Theme Report)
Prepared by: Jonas Ball, Sinclair Knight Merz Pty Limited, Authors
Published by CSIRO on behalf of the Department of the Environment and Heritage, 2001
ISBN 0 643 06750 7

Introduction (continued)

Responses - management of inland waters and their catchments

For each of the three key management issues that are discussed in the following sections (i.e. water resources, water quality and aquatic ecosystems) the current management responses to each issue are also assessed. Management responses to an issue can be at a local, regional or national scale and include:

Currently, state and territory governments are directly responsible for water and catchment management in Australia. There are a number of statutory regimes that are common to land and water management in each state and territory (Gardner 1999). They include:

Tarn Shelf, Mt Field National Park, Tasmania

Tarn Shelf, Mt Field National Park, Tasmania

Source: Environment Australia.

The administrative frameworks for natural resource management (i.e. implementing the statutory regimes listed above) varies between states, and has generally evolved over decades as a result of political, social and environmental change. This haphazard and reactionary evolution has led to some government agencies involved in natural resource management having conflicting and overlapping functions, or performing similar tasks to other government agencies. Also in many states, new government agencies have been created to administer new legislation (e.g. the New South Wales National Parks and Wildlife Service was created in the 1970s to manage national parks, protect Indigenous heritage and protect threatened species).

There is also a trend in the devolution of natural resource management from state centralised and bureaucratic processes to regional or local processes usually through consultation in the preparation of management plans and/or the convening of representative management committees (e.g. catchment management committees). There is debate about whether these management plans or committees have been adequately resourced (Gomez-Fort et al. 1997), and on the legal status and basis of these plans/committees (Sproats & Kelley 1998). Increasingly, environmental protection and statutory planning powers are also being transferred from state agencies to local government, in some cases without sufficient resources for implementation.

In conflict with their regulatory responsibilities, state or local governments are often the largest polluters and suppliers of natural resources to the community. This includes the management of sewage treatment plants, water supply and other polluting activities (e.g. power generation). If the regulatory and policy functions of a government agency and its service or supply functions are not sufficiently separated, there is reduced opportunity for independent review and policy implementation (Gardner 1999).

Overlying the natural resource management framework is the fact that water does not respect the artificial political boundaries, and upstream activities in each catchment can impact downstream. This has implications at local, state and national levels for the effective management and allocation of resources. The Murray-Darling Basin Commission and the Murray-Darling Basin Ministerial Council are examples of organisations created to manage natural resources across political boundaries, although it should be noted that neither organisation has legislative powers.

Although state governments, and in some cases local governments, are directly responsible for water and catchment management in their areas of jurisdiction, the Commonwealth also has a significant and increasing responsibility. The Commonwealth's role in water and land management includes:

There is some evidence that the Commonwealth Government is becoming frustrated with the inaction of the states and territories in the implementation of water and land management reform. For example, despite repeated requests the Queensland State Government has yet to set a cap on water extraction from its rivers in the Murray-Darling Basin and unsustainable land clearing continues in the Condamine catchment. There appears to be a growing belief among all political parties at a federal level, conservation groups and the scientific community, that a national approach accompanied by legislative reform is required to provide for the ecologically sustainable use of Australia's catchments. In December 2000 a bipartisan House of Representatives committee released a report into 'Co-ordinating Catchment Management' (HRSCEH 2000) which recommended (among other things) that:

Although none of these measures has been implemented, the report provides a model for the future 'nationalisation' of natural resource management in Australia. Certainly there are Commonwealth constitutional powers that could be used to justify national resource management laws (Molloer & McKay 2000).

Indigenous water rights

The linkage between traditional Aboriginal culture and inland waters is undeniable. Movements of Aborigines and the location of campsites have been shown to be linked to the availability of water (Berndt 1993). Sacred sites are often based around waterholes or soaks, and secret ceremonies often involve the use of water from these sites. As well as providing drinking water, inland waters also sustained plants and animals that provided traditional Aboriginal food sources. There is also evidence that inland waters were part of Aboriginal trade routes (Powell 1991).

Since the High Court's Mabo decision in 1992 and the subsequent enactment of Commonwealth and state native title legislation, many native title claims over land and waters have been made. Based on experiences in other countries where similar rights have been granted to the Indigenous population, native title is likely to become one of the fundamental issues in resource development.

The Mabo decision held that Aboriginal and Torres Strait Islander people who have maintained a continuing connection with their country in accordance with their traditions and customs may hold native title, provided that it has not been validly extinguished. Proving a continuing connection usually involves showing that traditional laws and customs have been passed down, at least from the time of the acquisition of sovereignty, to the present day. Native title can, however, be extinguished.

To date, most native title claims covering water have been over coastal waters, although there have also been claims over inland waters. The mechanisms for the settlement of native title claims over inland waters provided by the Native Title Act 1993 are the same as for coastal waters; however, the legal issues raised in relation to each can be quite different.

There is some debate over whether traditional Aboriginal communities or groups 'owned' water resources as generally other non-local or nomadic groups used many inland waters for food and drinking water. A connection between a particular Aboriginal group or community and a water resource may be difficult to prove in these circumstances. However, where inland water resources have a strong cultural value (i.e. as a sacred site) the link may be clearer as the cultural value is specific to an Aboriginal group or community.

Although native title may be claimed over an inland water resource, the extent that the claim may be recognised in law is unclear in some circumstances. Section 253 of the Native Title Act states that water includes:

sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters, or the bed or subsoil; under or airspace over, any waters or shore

It is unclear, however, whether native title can be successfully claimed over water flowing in surface or subterranean waterways. On the one hand it can be argued that native title rights to water flows which feed sacred inland water sites (e.g. waterholes) are possible. On the other hand there is a well-established common law principle that no-one has any property in flowing water and the courts have stated that native title rights and interests that are contrary to well-established principles of the common law can not be recognised if to do so would 'fracture a skeletal principle' of the Australian legal system.

It is likely that the majority of native title rights granted in respect to inland waters will be confined to activities such as hunting, fishing, gathering, cultural and spiritual activities for the purpose of satisfying the personal, domestic or non-commercial communal needs of native title holders. It is likely that in the vast majority of claims the Crown will retain the existing right to use, control and regulate the flow of water.

Indigenous land use agreements negotiated under Native Title Act may also indirectly impact on inland waters through agreement to the modification of current catchment land uses and management responses (Craig 2000).

It is interesting to note that in many states significant reform of water management is currently occurring. Except for New South Wales, Indigenous rights to inland waters do not appear to be addressed in most of the proposed state water reforms. As part of the new Water Management Act 2000 for New South Wales, Indigenous people will have automatic membership on water management committees and are permitted to use inland waters for cultural purposes.

At this stage no water quality guidelines have been developed for the protection of cultural and spiritual values in Australia or New Zealand. Because of the lack of such guidelines in the water management framework, cultural values cannot be taken into account through the process of establishing the specific water quality objectives for a particular water resource.

Further work will need to be undertaken as part of the next revision phase for the Water Quality Guidelines to better define cultural and spiritual value for users in both Australia and New Zealand. In the meantime, Australian and New Zealand managers, in full consultation and cooperation with Indigenous peoples, will need to decide how best to account for cultural values within their own management frameworks. They will need to take account of existing legislation, regulations and guidelines.