Facilitating Water Rights in Northern Australia

Science Week PresentationJohn Mackenzie

Virtual Revolution in Water Planning

• From a minor, ad hoc activity to a mainline and continuous activity of government

• From a conception of water as a commodity or a service to a conception of water as a key ingredient in economic and social policy

• From a process that involved a small group of professionals to one that now involves many different disciplines and the public at large

• From a discrete area of policy to one which is influenced by a large array of political considerations from the promotion of development in particular regions to meeting the social and economic needs of particular social groups.

The National Water Initiative (NWI)

Water Planning

Water RegulationWater Markets

Water scarcity

“A nationally-compatible market, regulatory and planning based system of managing surface and groundwater resources for rural and urban use that optimises economic, social and environmental outcomes”

Making Tradeoffs Transparent

“…settling the trade-offs between competing outcomes for water systems will involve judgements informed by best available science, socio-economic analysis and community input…”

Australia’s National Water Initiative

Section 36

Indigenous Water Rights

Under the NWI, governments have committed to: • provide for Indigenous access to water resources

• through planning processes that ensure inclusion of Indigenous representation in water planning wherever possible, and

• water plans incorporating Indigenous social, spiritual and customary objectives and strategies for achieving these objectives wherever they can be developed

• take account of the possible existence of native title rights to water in the catchment or aquifer area. • may need to allocate water to native title holders following the

recognition of native title rights in water• account for water allocated to native title holders for

traditional cultural purposes

• Correction to the historical exclusion of Indigenous people from water reform

• Pragmatic recognition based on the large and growing extent of land under Indigenous estate

• Provides basis for water allocation for cultural and commercial purposes

• Commits governments of Australia to acknowledging and protecting the special category of values that Indigenous stakeholders possess as Traditional Owners of the country’s water resources

How are people working together to develop water plans?

Our TRaCK research team explored ways to improve collaborative approaches to water planning to:

• develop a better means to involve communities, industry and the public

• to include social, cultural and economic values in water planning, especially those held by Indigenous people.

Collaborative Planning Case Studies

Agency Barriers to Collaboration

• Survey of approximately 1 in 3 water planners from across Australia

• 51% of planners identified that there are specific processes for Indigenous engagement.

• Most referred to the participation of Traditional Owners or other Indigenous representatives on the community reference panels.

• Cultural assessment is regarded by planners as the least important technical assessment conducted for the development of water plans.

• Many planners consider the assessment of environmental requirements commensurate with the needs, values and rights of Indigenous stakeholders and Traditional Owners.

National Water Planners Survey

2.27

3.68

3.75

3.80

3.86

4.00

4.15

4.17

Stakeholder Analysis

Facilitation

Science Communication

Decision-support Tools

Social Assessment

Conflict Management

Cross-cultural Engagement

Indigenous Engagement

Desired areas of training and developmentfor water planners

National Water Planners Survey

Unrealised Promise of Reform

• No national guidelines to ensure the inclusion of Indigenous rights or interests in water reform

• Inconsistent approaches across and within jurisdictions

• Biennial review of water reform conducted by the National Water Commission in 2009 found the explicit inclusion of Indigenous interests in water plans has been uneven and rare

Indigenous Rights to Water Report: Lingiari Report to ATSIC (2002)

Boomanulla Statement (2002)

Protocols, Principles and Strategies Agreement for Indigenous Involvement in Land and Water Management - North Central Region of Victoria (2002)

Indigenous Peoples Kyoto Water Declaration, Third World Water Forum (2003)

Memorandum of Understanding between Murray Lower Darling Rivers Indigenous Nations (MLDRIN) and Murray-Darling Basin Commission (2006)

United Nations Declaration on the Rights of Indigenous Peoples (2007)

Indigenous Water Policy Group (IWPG) Statement (2008)

Mary River Statement (2009)

Indigenous Water Policy Statement (2010)

Echucha Agreement (2010)

Protocols and Policies for Indigenous Inclusion

Indigenous Expectations from Planning

• Indigenous culture and values must be identified, respected and incorporated in natural resource planning and implementation, particularly with respect to the distinct connections maintained by Indigenous people to those resources.

• Recognition and reinforcement of Indigenous identity and status of traditional ownership and custodianship

• includes the recognition and respect of customary governance arrangements around the management of resources.

• Indigenous people must be recognised as a unique class of stakeholders in resource management processes, due to the inextricable connectivity between identity, spirituality and water.

• Indigenous knowledge about the environment must be afforded parity with scientific knowledge in decision-making • Where possible, active measures must be made to ensure legal

protection of community intellectual property rights with regards to this knowledge.

• Respect for cultural diversity of Indigenous people

• including the differences in traditions, laws, sites, stories and cultural practices or traditional practices across communities.

• Planning processes must respect the cultural practices and custodial responsibilities of Indigenous peoples• includes respect for community protocols as to who can

legitimately speak for country• The recognition of ongoing sovereignty and traditional

custodianship of natural resources requires that the economic benefits that flow from natural resource management must be shared with Indigenous communities.

Establishing terms of engagement

processes that formalise relationships and establish a more level platform for negotiation between parties

Defining or measuring Indigenous water use requirements

tools and processes that enable greater clarification around water needs for cultural and consumptive purposes

Access to the consumptive pool

processes for articulating consumptive water needs and public benefit, outlining governance arrangements and determining procedures for access

Knowledge and information exchange

methods for enhancing cross-cultural knowledge exchange, recording of Indigenous knowledge, protection of Indigenous property rights, communicating Western hydrological knowledge and predictions

Participatory goal setting

participatory planning techniques which allow for articulation of social and economic aspirations in relation to water needs

Water management regimes

Guidelines for determining role of Indigenous groups in managing water, such as managing environmental flows or provision of other environmental services or monitoring

Indigenous Water Planning Issues Priority Areas for Planning

Development of Protocols

• Prior informed consent

• Respect for traditional modes of governance in decision-making

• Recognition of custodial responsibilities

• Integration of traditional ecological knowledge

• Flexibility in negotiation frameworks

• Alignment with community aspirations

Guidelines for Negotiation Platform• Places Indigenous communities in a position to make

informed decisions about future water use and management

• Ensures a strong negotiation position for those communities to maximise the financial and non-financial benefits of the water reserve

• Provides as much ownership and control of the decision-making process in the hands of the traditional governance structures of the Indigenous communities in the region as possible

• Allows for sufficient flexibility to initiate and advance planning objectives beyond responding to those of government agencies

Waterways Advisory Committee

• Wik Projects Pty Ltd received a Natural Heritage Trust grant in October 2008 to convene the Waterways, Wetlands and Coastal Management Advisory Committee

• Produced a draft Waterways, Wetlands and Coastal Management plan

• Similar catchment-based Indigenous Catchment Organisations emerging in Mitchell River, Kowanyama and Daly River

Key Features of Catchment Groups

• Unifies multiple and diverse language groups at a catchment scale

• Ensures space and opportunity for concerns, knowledge and values to be articulated

• Allows for engagement to be on Traditional Owner terms and consistent with custodial obligations

• Enables community to develop a strong framework for negotiation

• Allows for self-definition of Country in an integrated framework

Six priority northern Australian catchments

Indigenous Water Facilitator Network

Water Facilitators are based in Land Councils across north Australia

Model of Indigenous Water Facilitation

MA

NA

GE

ME

NT

MA

NA

GE

ME

NT

DECISION DECISION MAKINGMAKING

PO

LIC

Y

PO

LIC

Y

PLANNING

PLANNINGMONITORIN

G

MONITORING

WATER FACILITATOR

TRAN

SLATION

NE

GO

TIATIO

N

MED

IATI

ON

CO

MM

UN

ICA

TIO

N

Stakeholders Government agencies

Rep bodies Land managers

Community groups Industry groups

Research providers Land & Sea programs

The aim of the model is to provide Indigenous communities with the capacity to directly engage in water management and planning and develop tool sets that can be used to inform policy development.

Catchments with existing water management allowed greater facilitation of engagement in water management and planning by water facilitators. This provided foundations on which to develop Aboriginal Reference groups that could articulate aspirations for Indigenous led research and management programs.

Where there were little or no foundations for engagement, facilitation was found to be complex and took time. Indigenous groups first needed to understand and articulate the cultural significance of water and their obligations under customary law to look after country before they could engage in government planning and policy development.

When complex relationships exist between prescribed bodies corporate (PBCs) and state government development projects, caution needs to be applied so that Indigenous planning activities do not conflict with development aspirations of the representative body.

Adapting Facilitation to Local Context

Engagement Readiness Assessment

Impact of the Facilitator Program in Northern Australia

In the Kimberley Documenting Traditional Ecological Knowledge

• Co-ordinated a series of ‘back to Country’ visits to record and document traditional ecological knowledge

• Development of a DVD documentary on ‘why water is important to Miriuwung people’ was presented at the Indigenous Water Policy launch at Parliament House in Darwin

• Model for documenting knowledge and build consensus views across language groups, share learning, discuss issues and achieve a view they can represent to others.

In the Kimberley Documenting Traditional Ecological Knowledge

“There has been some really impressive local successes, for example, the seasonal calendar developed by the East Kimberley ICWF has had an impact as a new way (for others) of talking about climate change and perhaps application of the technique as a monitoring tool.

It’s a new national way of looking at change”.

• Facilitated discussions on Strategic Indigenous Reserves (SIRs) between NTG statutory planning authorities, the Northern Land Council and Traditional Owners:

• Oolloo and Mataranka groundwater districts

• TOs were able to make collective decisions about water reserves based on technical and cultural information

• Devised a formula for their desired SIR water allocations to negotiate Government

• Led to the establishment of two ongoing Traditional Owner Reference Panels in the areas

• Set a precedent for establishment of SIRs in statutory water planning

In the Top End Formulating Policy on Indigenous Water Reserves

• Wenlock Catchment Traditional Owner Forum (40 TOs attending) was convened and held in Mapoon over three days in December 2010

• Established the Wenlock Catchment Management Group

• Established a plan for mapping cultural values in the region

• Meeting outcomes report used as a submission to the House Standing Committee on Economics for Mapoon.

In Cape YorkNegotiating Complexity and Conflict

Documented the history of the Kowanyama Land and NRM office over twenty years entitled ‘Kowanyama – Bottom end of the Catchment’.

Translation of water and river information collected over history of the office

Included information on historical successes, including developing partnerships with external agencies

Translated outcomes of programs into plain language that shows the importance of water to TOs.

In KowanyamaRecounting the History of Success

• Formation of the Mitchell River Traditional Custodian Advisory Group (MRTCAG), which aims to review and manage any scientific research carried out on their country.

• On November 24, 2009, MRTCAG signed an agreement with the TRaCK research program

• It allows for cooperation and collaboration for conducting research on lands owned and managed by the Mitchell River Catchment Traditional Custodians.

• Requires researchers to follow an agreed set of protocols and a code of conduct for working on Indigenous lands in the Mitchell River Catchment.

In the MitchellCollaborative Research Protocols

In the Gulf of Carpentaria

Evaluations of the Facilitator Program

“This model of having facilitators linked together under a common set of principles across Northern Australia is as close as anyone has come thus far to doing this in a meaningful way...”

Indigenous Community Water Indigenous Community Water Facilitator Field GuideFacilitator Field Guide

Drawing from the experiences of the NAILSMA Indigenous Water Facilitator Network and the full range of TRaCK research and publications, this work will compile outputs as a field guide for community-based water facilitators to support Indigenous communities to better understand and participate in water planning, management and decision-making.