TRENDS IN THE RECOGNITION OF INDIGENOUS WATER NEEDS IN AUSTRALIAN WATER REFORM: THE LIMITATIONS OF 'CULTURAL' ENTITLEMENTS IN ACHIEVING WATER EQUITY

• Published in: Journal of Water Law 2011-01, Vol.22 (2-3), p.109-123
• Main Authors: Jackson, S, Langton, M
• Format: Article
• Language: English
• ISSN: 1478-5277

In this article, we analyze the disparity in access to water resources between indigenous and non-indigenous Australians, the regional differences in the effectiveness of indigenous strategies to assert and negotiate their interests in this reform process and the consequent regional disparity in indigenous water rights recognized or contemplated in policy and at law. We provide a case study of New South Wales' (hereafter NSW) only Cultural Access Licence held by the Nari Nari Tribal Council of Hay to exemplify trends in the recognition of indigenous water rights. This case study raises questions not only about the efficacy of 'cultural' entitlements but also matters of equity, particularly the transaction costs that indigenous groups may bear when accessing water under this special measure. In light of these limitations, we ask whether a group like the Nari Nari Tribal Council could satisfy their diverse and evolving water management strategies by alternate means or must they and other indigenous groups rely upon an obscure and restrictive form of entitlement that privileges pre-colonial practices? Two distinct possibilities are environmental water allocations and commercially valuable tradeable licences. For either to work, governments would need to commit to reallocating entitlements to indigenous people with direct purchase of entitlements from willing sellers being the least contentious. Strategies that seek indigenous participation in mainstream environmental water management along with substantive water property rights to underpin economic activity are more likely to result in a reallocation of water to meet the needs of indigenous populations than 'cultural' entitlements.