Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

Abstract

Abstract:The passage of the Native Title Act 1993 (Cth) brought with it much anticipation-though in reality, quite limited means-for recognizing and protecting Aboriginal peoples' rights to land and water across Australia. A further decade passed before national and State water policy acknowledged Aboriginal water rights and interests. In 2015, the native title rights of the Barkandji Aboriginal People in the Australian State of New South Wales (NSW) were recognized after an eighteen-year legal case. This legal recognition represents a significant outcome for the Barkandji People because water and, more specifically, the Darling River, or Barka, is central to their existence. However, the Barkandji confront ongoing struggles to have their common law rights recognized and accommodated within Australian water governance regimes. Informed by literature relating to the politics of recognition, we examine the outcomes of government attempts at Indigenous recognition through four Australian water regimes: national water policy; native title law; NSW water legislation; and NSW water allocation planning. Drawing from the Barkandji's experiences in engaging with water regimes, we analyze and characterize the outcomes of these recognition attempts broadly as 'misrecognition' and 'non-recognition', and describe the associated implications for Aboriginal peoples. These manifestations of colonial power relations, whether intended or not, undermine the legitimacy of state water regimes because they fail to generate recognition of, and respect for, Aboriginal water rights and to redress historical legacies of exclusion and discrimination in access to water.

Conceptualizing Hydro-socio-ecological Relationships to Enable More Integrated and Inclusive Water Allocation Planning

“…Fully addressing these principles will take time and resources and in some cases will require significant changes in government policy and processes. Some of the considerations relating to water governance (principle 1), for example, exceed the current scope of Indigenous recognition in policies and mechanisms throughout most of Australia, 86 including Western Australia (WA). Despite this, the outputs from our research have now been used to inform the early stages of water planning.…”

Water and Indigenous rights: Mechanisms and pathways of recognition, representation, and redistribution

“…Yet the fact that there are dynamic, interacting and overlapping socio-legal repertoires relating to water tends to be ignored by national governments who commonly assume that water rights and water management institutions are exclusively framed, enacted, and governed by state agents or market participants (Boelens & Vos, 2014;Van Koppen, Giordano, & Butterworth, 2007). In addition, the common expectation in liberal modes of environmental governance that decision-making will occur through procedures that do not favor the beliefs of any particular group means that Indigenous peoples are treated as undifferentiated "stakeholders" (Hartwig, Jackson, & Osborne, 2018;Phare, 2009;Schmidt & Peppard, 2014;Wilson, 2014).…”

“…Australian governments are not required to gain consent or to negotiate before granting a right to take water (Tan & Jackson, 2013). A study by Hartwig et al (2018) documents the failure of the state of NSW to amend water plans to accord with court recognition of the native title rights of the Barkandji people of the Darling River. New Zealand (Ruru, 2013) and Andean laws also constrain collective water rights systems, recognizing them only insofar as they pose negligible competition to previously recognized and privileged private users (Boelens, 2009).…”

Indigenous Water Management

“…It is now fifteen years since policy-makers first recognised Indigenous rights and interests in national water policy and added the issue to the many others that had preoccupied water reformers during the previous decade, albeit giving it limited treatment (Jackson and Morrison 2007). While many have rightly noted this late recognition as a glaring omission, coming more than a decade after the Mabo High Court decision and the Native Title Act (Cth) (see Taylor et al 2017;Hartwig et al 2018;Jackson 2015;Marshall 2017; O'Bryan 2019), it has nonetheless provided an impetus for change in how we manage water, and the ways in which we seek knowledge of water, as well as appreciate its critical importance to all groups in Australian society. An important illustration of the degree to which water management agencies recognise the need for Indigenous voices can be found in the recent decision of the Ministerial Council for the Murray Darling Basin (MDB) to add an Indigenous member to the MDB Authority.…”