Indigenous Rights in Water in Northern Australia

Indigenous Rights in Water in Northern Australia Report

  • Author(s): Michael O’Donnell, NAILSMA, TRaCK
  • Published: 2011
  • Publisher: Charles Darwin University, Tropical Rivers and Coastal Knowledge (TRaCK), and the North Australian Indigenous Land and Sea Management Alliance Ltd (NAILSMA)

Abstract: This research examined present law and associated process in northern Australia and the way it deals with native title and other Indigenous interests in water. 1. The Indigenous worldview does not generally separate land and water in terms of rights and responsibilities. The legal recognition of the Indigenous relationship to country including water in Australian law fragments that worldview. 2. The traditional rights and interests of Indigenous peoples including in relation to water are not universally legally recognised in Australian law and when recognised at law it is of a limited nature. 3. Native title rights and land rights legislation recognise Indigenous rights in relation to water, but in different ways. For example, the NT Land Rights Act includes the land and waters of the inter-tidal zone within the freehold title. Whilst the Native Title Act, 1993 excludes the inter-tidal zone from the definition of land. Thus there can be no right to control access by native title holders to the inter-tidal zone. 4. Natural waters are not the subject of ownership by government and land owners including native title holders. This includes the vesting of the right to the use and control of water in the Crown, government or relevant government agencies under water management legislation. 5. The control over access to water on or in the land subject to land rights or exclusive possession native title is significant and an important Indigenous right in relation to water. 6. The common law riparian rights of land owners to use water including under land rights legislation no longer exist but have been replaced by a limited form of statutory rights to access water for domestic purposes, watering of stock and the keeping of domestic vegetable gardens pursuant to local water management legislation. 7.The abolition of common law riparian rights does not affect native title rights to take and use water. 8. Native Title and Land rights constitute substantive property rights and re not only the recognition of customary rights of usage such as gathering water, hunting and fishing.

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Suggested Citation
Michael O’Donnell, NAILSMA, TRaCK, 2011, Indigenous Rights in Water in Northern Australia, Report, viewed 13 August 2022, https://www.nintione.com.au/?p=3142.

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