Baaka Water Commission
Proposal.
Baaka Water Commission Proposal
THE WAY FORWARD – SHARED FOOTPRINTS (GOING WITH THE FLOW)
The Way Forward Shared Footprints
Introduction:
The Baaka Water Commission is a bold approach to government and Traditional Owner reform requiring deep collaboration across the Water sector. Implementation of the reform will be driven by The Barkandji Native Title Group Aboriginal Corporation RNTBC Implementation Unit, a single entity acting on behalf of stake holders at every level.
The Barkandji Native Title Group Aboriginal Corporation RNTBC Implementation Unit is overseen by The Baaka Water Commission, a multi-agency decision-making and leadership body bringing together leaders at Ministerial and Departmental level from across State, Local and Commonwealth Government including NSW DPIE -Water, Environment, Fisheries, Natural Resource Commission, MDBA, Commonwealth Environmental Water Officer, Aboriginal Affairs, National Indigenous Australians Agency, NSWALC, Local Shires. Health, LLS, NBAN, MLDRIN, Biodiversity Conservation Trust, CSIRO,
The reform starts by placing vulnerable communities and environments along the Baaka at the forefront, while implementation entails a redesign of systems and processes to better meet their needs and improve outcomes along the Baaka for all the Baaka Water Community.
The Way Forward (Shared Footprints) using data and evidence to align funding to Baaka Water Community wellbeing outcomes.
Investment Approach
Central to our vision is an investment approach that will direct and prioritise whole-of-government funding to deliver targeted solutions that achieve measurable and meaningful outcomes. This approach is built on whole-of-government data, best available evidence, outcomes monitoring and continuous improvement. It will ensure that the efforts of Government are directed to areas of greatest need, with the services and resources required for the best outcomes for the Baaka Water Community.
Evidence, monitoring and evaluation
The Baaka Water Commission and the Barkandji Native Title Group Aboriginal Corporation RNTBC implementation Unit will pull together evidence from across government, the service sector, and academia, from Australia and overseas, to deliver targeted support that meets the needs of the Baaka Water Community. We will develop a Framework as a benchmark to understand and measure the success of programs and build evidence of what works.
One connected response – a single commissioning entity aligning funding and specialist cross-agency services
Single commissioning entity
The reform requires a commissioning entity to take a whole-of-government view of the system, independent of direct service delivery. The Baaka Water Commission Barkandji Native Title Group Aboriginal Corporation RNTBC Implementation Unit will work with government agencies to build a comprehensive view of all services for the vulnerable Baaka Water Community and gather available evidence. This will ensure that systems of support are delivered to those along the Baaka Water community. Our focus is ensuring targeted deliverables and the best long-term benefits that safeguard the future wellbeing of the Baaka Water Community.
There needs to be A whole of system redesign to better align the needs of the vulnerable Baaka Water Community, the vision is to provide an integrated response across services, with more efficient and affective mechanism to navigate paths for better collaborative management of the Baaka Water Community.
A focus on Needs-based supports – wrap-around supports designed to target the needs of vulnerable Baaka Water Communities including Evidence-informed targeted interventions and the formulation of The Baaka Water Commission intervention strategies which aim to keep Baaka Water community’s wellbeing at the forefront where appropriate. We are also strengthening investment in initiatives to support the wellbeing of the whole Baaka Community.
Natural Resource Commission Final Report Review of Water Sharing Plan for the Barwon-Darling Unregulated Water Sources 2012:
Introduction to NRC Report:
The above-mentioned report should be a real eye-opener for governments and water policy makers at all levels. This report is evidence based, backed by scientific research with submissions from traditional owners throughout the Barwon Darling River System. The following extract from the Natural Resources Commission Final Report Review of the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 September 2019 and various submissions to the report underline the poor management and disregard for the health of the river system, it’s traditional owners and communities who rely on the system as it’s lifeblood.
Native Title Water Rights:
The report outlines:
Cultural outcomes need to be defined and delivered; this chapter discusses the extent to which the Plan has achieved its stated cultural outcomes. It focuses on provisions in the Plan relating to native title rights and the wider Aboriginal, cultural and heritage values of these water sources.
In summary, the Commission found that existing native title rights have not been recognised in a timely manner, despite provisions within the Plan that allow for amendments to reflect native title determinations. More broadly, Aboriginal cultural values and objectives within the Plan are poorly defined, therefore it is difficult to assess how well the Plan is meeting its objectives in this area. There has also been no access to water under cultural water access licences and, until recently, engagement of Aboriginal traditional owners and communities had been piecemeal and ineffectual.
The Commission notes DPIE-Water’s recent efforts to better support Aboriginal outcomes, particularly as part of the water resource plan process and the revised water sharing plans currently on public exhibition. The issues outlined above should also be addressed as part of any revised plan.
Native title rights require recognition Native title rights require recognition. In the Plan, native title rights are addressed in the objective “manage these water sources to ensure equitable sharing between users (domestic and stock rights, native title rights, local water utility requirements)”, and the performance indicator “the extent to which domestic and stock rights and native title rights requirements have been met”.
The Commission has found that the stated objectives and performance indicators related to native title have not been achieved due to a lack of timely recognition of native title determinations, and a failure to provide allocations for native title. Clause 20 of the Plan currently states: “At the commencement of this Plan, there are no native title rights in these water sources. Therefore, the water requirements for native title rights are 0 ML per year.”
Although this clause was correct at the commencement of the Plan in October 2012, the Plan should have been amended to reflect the Barkandji native title rights determined in 2015 and 2017. Clause 84(3) supports such an amendment, stating that “This Plan may be amended following the granting of a native title claim pursuant to the provisions of the Native Title Act 1993 (Commonwealth) to give effect to an entitlement granted under that claim.”
Public submissions received as part of the review consistently noted the lack of action regarding the native title rights of the Barkandji and Malyangapa people despite many reported attempts by representative groups and individuals to raise the issue. This includes attempts by legal representatives of the Barkandji Traditional Owners (NTSCORP Limited), as described below.
“Attempts to raise this matter and seek clarification by two of the authors of this submission, as well as attempts by legal representatives of the Barkandji Traditional Owners, have faced slow and dissatisfying responses. NTSCORP Limited, the legal representatives of the Barkandji native title holders, raised these matters in their 2016 submission to the NSW Legislative Council’s Inquiry into the Augmentation of Water Supply for Rural and Regional NSW.
They described a process that was culturally insensitive and misleading, arguing that NSW’s Water Sharing Plans (including the Barwon-Darling Water Sharing Plan) do not respond to legal recognition of native Natural Resources Commission Final report Published: September 2019 Review of the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 Document No: D19/4123 Page 131 of 184 Status: Final Version: 1.0 title rights and that this can be “extremely distressing for Traditional Owners” (NTSCORP Limited 2016, p. 15).
We argue that the abovementioned objectives of the Barwon-Darling Water Sharing Plan (cl 10) to (b) protect, preserve, maintain and enhance the Aboriginal, cultural and heritage values of these water sources, and (c) protect basic landholder rights are not being achieved through this ongoing failure to recognise and accommodate native title to water held by Barkandji and Malyangapa peoples.
Despite the Barkandji’s native title determination granting specific rights to water as identified in Chapter 2.7.2, it is apparent that the actual implementation of native title rights is constrained in the context of an already fully-allocated system and complex water governance processes. The implications of excluding recognition of Barkandji native title rights from the Plan have resulted in a “failure to protect water and maintain sustainable water levels that support Barkandji’s enjoyment and exercise of their other water-related native title rights and interests”. This has led to much frustration and disappointment in the Barkandji community.
In 2016 these frustrations prompted two Barkandji-led protests aiming to raise awareness with governments, politicians, and the public. However, the subsequent lack of response created further disappointment for Barkandji people. In addition, some stakeholder submissions suggest the Plan violates the native title provisions in the Act and national water policy, as illustrated below.
“Since the successful native title claim, the Barkandji People have been recognised as Traditional Owners of the land which includes the rivers and groundwater. The determination of native title includes the right to take and use water…that must be recognised and protected. The government agree to our native title rights – but take our water away.”
Moreover, it has been noted that the Plan has not adequately addressed the needs of confirmed and potential, or in process rights holders, nor the provisions of the ‘future act regime’ to regulate how third parties can affect or impact native title rights to water; this potentially leaves the Government exposed to procedural and compensation claims.
Submissions to NRC Barwon-Darling Water Sharing Plan Review Report:
Submissions to the NRC Barwon-Darling Water Plan Sharing Review were wide and varied. Experts, Traditional Owners, Native Title Owners and Their Legal Representatives all outlined the poor management and disregard for Native Title and Traditional Owner rights. Some of the submissions below, if listened to should make Governments at all levels realise that the system is broken, and traditional owners must be listed too and included in the conversation.
Inadequate recognition of native title determinations is common across most water sharing plans in the region, which serves to undermine stated priorities for Aboriginal outcomes. Several submissions argued that the failure to update plans to reflect native title determinations and requirements is a poor measure of the ‘extent of recognition’ of Aboriginal peoples’ water values.
Research undertaken in the Barwon-Darling identifies gaps in how native title decisions are reflected in water sharing plans and the ways in which Aboriginal people are involved in water.
Jackson, S., Hartwig, L. and Tan, P.L. Griffith University – submission to the Commission for this review.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes.
Resources, 7, page 15. Moggridge, B.J. and Thompson, R. (2019), Aboriginal voices are missing from the Murray-Darling Basin crisis, The Conversation 20 June, available at https://theconversation.com/aboriginal-voices-are-missing-from-themurray-darling-basin-crisis-110769.
NTSCORP (2017), BDNTGAC statement - Submission on Proposed Amendments to the Murray-Darling Basin Plan, 22 February 2017. NTSCORP (2017)
Submission: Proposed Amendments to the Murray-Darling Basin Plan; NTSCORP (2016)
Submission: Inquiry into the Augmentation of Water Supply for Rural and Regional NSW. Jackson, S., Hartwig, L. and Tan, P.L. Griffith University – submission to the Commission for this review.
This is supported by broader critiques of the application of Aboriginal water rights across state and national jurisdictions, including:
· the emphasis native title clauses place on ‘traditional cultural purposes’, which inadequately includes Aboriginal peoples’ understandings, uses and relationships with water, and also precludes economic development options the dependency of water rights on land rights, rather than any native title rights specifically in or to water; this means that Aboriginal water rights have not been tailored appropriately but rather ‘shoehorned’ to fit in a land rights framework;
· the fact that Aboriginal groups must tackle the significant hurdles and long timeframes of the Commonwealth native title process in order to have their water rights determined (albeit with limited native title provisions to water)
· the low priority given to Aboriginal needs in fully-allocated catchments – “an entitlement to extract water does not ensure that there is any water to extract or that the water is of consumable quality “.
Other government reviews have also commented on the poor implementation of actions relating to native title water rights. The Commission recommends that the Plan is amended immediately to better support and deliver native title rights of the Barkandji and Malyangapa traditional owners in line with the native title determination and the Native Title Act 1993 (Commonwealth, paragraph 6).
Any future engagement should be undertaken proactively, and as part of Indigenous Land Use Agreements or other agreements where possible, and in line with:
· specific water-related provisions of the Native Title Act 1993, including government and third parties impacts on native title rights to water:
· provisions under the Water Management Act 2000 where native title rights must not be detrimentally affected by lesser priorities of water extraction. The Plan should include set timeframes for amendment following future native title determinations, particularly in respect of the two current native title claims of the Gomeroi People (NSD2308/2011), and the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan Peoples (NSD415/2012).
Indigenous Land Use Agreements or other agreements should be used to prevent issues related to the long timeframes of native title claims and extended periods of inaction that often follow final determinations. The Commission recommends that DPIE–Water: Take steps to improve Aboriginal engagement and outcomes, including: Amending current provisions to include recognition of Barkandji and Malyangapa native title rights. Including a timeframe of three months to undertake initial amendments of the Plan following future determination of any other native title claims and Indigenous Land Use Agreements, and a further 12 months to undertake the detailed engagement, final amendment and allocation process.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes. Resources, 7: 16-32; and Tan, P.L. and Jackson, S. (2013), Impossible dreaming - Does Australia’s water law and policy fulfil Indigenous aspirations?
Environment and Planning Law Journal, 30:132–149. Jackson, S. and Morrison, J. (2007), Indigenous perspectives in water management, reforms and implementation.
In Hussey, K., Dovers, S. (Eds) Managing Water for Australia: The Social and Institutional Challenges, CSIRO Publishing,
Melbourne, pp. 23–41. Duff, N. (2017), Fluid Mechanics: The Practical Use of Native Title for Freshwater Outcomes.
AIATSIS Research Publications, Canberra; and Macpherson, E. (2017), Beyond recognition: Lessons from Chile for allocating Indigenous water rights in Australia.
University of NSW Law Journal, 40: 1130–1169. 421 Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes.
Resources, 7: 16-32; Taylor, K.S., Moggridge, B.J. and Poelina, A. (2017), Australian Indigenous Water Policy and the impacts of the ever-changing political cycle.
Australasian Journal of Water Resources, vol. 20, no. 2, pp. 1–16; and Tan, P.L. and Jackson, S. (2013), Impossible dreaming—Does Australia’s water law and policy fulfil Indigenous aspirations?
Environment and Planning Law Journal, 30: 132–149. 422 Behrendt, J. and Thompson, P. (2004), The recognition and protection of Aboriginal interests in NSW rivers.
Journal of Indigenous Policy, 3: 37-140. 423 National Water Commission (2009), Australian Water Reform 2009: Second Biennial Assessment of Progress in Implementation of the National Water Initiative;
National Water Commission (2011), The National Water Initiative—Securing Australia’s Water Future: 2011 Assessment; National Water Commission (2014), A Review of Indigenous Involvement in Water Planning; and Productivity Commission (2017),
Aboriginal outcomes need to be better defined and supported Aboriginal, cultural and heritage values need to be identified and recognised Aboriginal cultural values and objectives have not been effectively and explicitly detailed in water planning to date.
Within the Plan, broader Aboriginal cultural and heritage values are described in the objective “protect, preserve, maintain and enhance the Aboriginal, cultural and heritage values of these water sources”. However, these values have not been identified, described or mapped.
There is also a relevant performance indicator “the extent of recognition of spiritual, social and customary values of water to Aboriginal people”. It is unclear how this performance indicator can be measured without specifying the values. This lack of identification of Aboriginal cultural values is also reflected in the Plan provisions.
There is one provision that allows for amendment of flow classes for the Boorooma to Brewarrina Management Zone if a satisfactory study demonstrates that access rules are having an adverse impact on the Aboriginal cultural value of the fish traps at Brewarrina. However, it does not specify the cultural value, uses, risks or impacts on the fish traps or any other cultural sites.
The Plan needs to better support Aboriginal cultural and heritage values and uses, objectives and outcomes in line with relevant legislation. Both state and national water legislation and policy integrate broader recognition of Aboriginal, cultural and heritage values and uses of water.
Specifically, in NSW, the Act notably includes a broad objective to ‘recognise and foster the significant social and economic benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water’ (section 3) and associated provisions.
The National Water Initiative acknowledges that “native title should not be solely relied upon to deliver Indigenous peoples the access and rights to their traditional waters. Water planners should consider other mechanisms for giving access and rights to water to Indigenous peoples”. The National Water Initiative also sets a standard for improving Indigenous engagement in water planning and access to.
Issues recognising Aboriginal values in water planning and management have been criticised widely, explored further in the following: National Water Commission (2009) Australian Water Reform 2009: Second Biennial Assessment of Progress in Implementation of the National Water Initiative; National Water Commission (2011).
The National Water Initiative—Securing Australia’s Water Future: 2011 Assessment; National Water Commission (2014), A Review of Indigenous Involvement in Water Planning. Plan section 78, part 8, division 2. Refer to Act provisions to meet this objective in division 3, part 2, section 13 (1(e)) and division 3, section 55.
Provisions under the Basin Plan integrate these elements of Commonwealth and state policy. Public submissions to this review provide evidence that the Plan does not sufficiently recognise the spiritual, social and customary values of water to Aboriginal people. Submissions indicate that the Plan’s objectives for Aboriginal outcomes are too general, values are not identified, and the Plan does not include specific compliance measures or clear benchmarks as required under the Basin Plan.
The Commission suggests that a better understanding and articulation of Aboriginal values and uses is needed for the Plan to protect, maintain and enhance these values. There have been significant efforts to provide guidance on how to undertake values assessments and consult effectively with Aboriginal people specifically in water planning and management.
However, these guidelines are not mandatory, so a proactive approach is required when identifying and protecting cultural values and uses and involving Aboriginal people in water planning and ongoing management. Fortunately, there is already a vast body of research to draw on that seeks to identify Aboriginal cultural values in this region.
Water, rivers, lagoons and springs are identified as being particularly significant in key studies of Aboriginal culture in the area. The Barwon-Darling is at the heart of this connection to country and underpins cultural practices and social structures, such as kinship relationships with fish and other beings.
Indeed, iconic species such as Murray Cod and Bony Herring (affected by the recent fish death events), have specific significance in Aboriginal storytelling, folklore and medicine. Water sustains the fish and underpins associated cultural practices.
The presence and movement of water in rivers ensures that highly valued relationships with the river are maintained, as captured in the Northern Basin Aboriginal Nations (NBAN) Board statement to the MDBA: “Good flows clean the waterways out. Food grows so we can hunt, fish and harvest wild tucker…When it rains and things grow we begin to see how the growth of one thing leads to the growth of another. That’s when our Aboriginal science becomes visible to us: we see how the growth of certain plants leads to the increase in certain insect populations which leads to increases in bird populations. These populations of living things are related to our totemic obligations. We teach our science, obligations and ceremonies — these are all a part of healthy Country — to our children; and we do this teaching on the waterways where the growth is actually happening.”
Australian Government (2017), Module to the National Water Initiative Policy Guidelines for Water Planning and Management: Engaging Indigenous Peoples in Water Planning and Management.
Chapter 10 of the Basin Plan sets out the water resource plan requirements for Indigenous engagement in water planning. These were prepared in partnership with MLDRIN and NBAN. The guide assumes a principle-based approach to engage with Indigenous peoples on a nation-by-nation based model, consistent with the United Nations Declaration on the Rights of Indigenous Peoples and drawing on the Convention on Biological Diversity’s Akwé: Kon Guidelines (2004).
Including additional modules for the National Water Initiative and the Basin Plan, and as part of the National Cultural Flows project.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes. Resources, 7: 16-32; Jackson, S., Pollino, C., Maclean, B., Moggridge, B. and Bark, R. (2015), Meeting Indigenous peoples’ objectives in environmental flow assessments:
Case studies from an Australian multi-jurisdictional water sharing initiative. Journal of Hydrology 52: 141-151; and Muir, C., Rose, D.B. and P. Sullivan (2010), From the other side of the knowledge frontier: Indigenous knowledge, social–ecological relationships and new perspectives.
The Rangeland Journal 32: 259–265. Paszkowski, L.K. (1969), Blandowski, William (1822 - 1878), Australian Dictionary of Biography, Volume 3, Melbourne University Press, pp. 182-183.
Statement from the NBAN Board, 14 January 2016, Moree. MDBA (2016), Our water, our life: An Aboriginal study in the northern basin. Murray–Darling Basin Authority, MDBA. Natural Resources Commission Final Report Published: September 2019 Review of the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 Document No: D19/4123 Page 135 of 184 Status: Final Version: 1.0:
The river is the life force that sustains important areas such as scar trees that were used for canoes, coolamons, shields and other culturally important sites like boundary trees. Water in the river preserves these sites as well as sacred sites throughout the region “when flows are right our sacred sites, like burial sites, are protected”.
Waterways are valued for the ways in which they integrate and support cultural history and connection; “the river is our memory – we walk along it and remember our history and our ancestors by looking at the marks and places”.
Water and its flows act as critical pathways to protect cultural history and connection for traditional owners and Aboriginal communities in these areas. Studies have also identified more specific cultural values in certain areas of the river system. For the Aboriginal people of the region, the river (the Barka) is at the heart of their culture and profoundly spiritual. The Barka is home to Ngatji, the rainbow serpent, who created the lands and rivers, and it is the Barkandji who are responsible for Ngatji’s health and wellbeing.
Aboriginal people’s cultural and spiritual values are embedded in country across a range of spatial and temporal scales and sites. For example, the Brewarrina fish traps described in Chapter 2.4 are an important historical inter-tribal meeting place for local Aboriginal groups. Upstream of the fish traps, the Ngemba Old Mission Billabong is also culturally significant.
In cultural terms these are treated as one complex site. The area was declared an Indigenous Protected Area in 2010 and is also a World Conservation Union Category V and VI protected area. To meet local Aboriginal water requirements, the two sites and the river section that connects them need to be managed together.
The Menindee Lakes have also been highlighted as an area of cultural significance in research studies, but most publicly in light of the significant fish death events. The Menindee Lakes are important to local Aboriginal people with cultural sites dating back over 13,000 years.
Submissions have called for more studies to better understand the water resources, Aboriginal cultural values and cultural water requirements in the Plan area, in partnership with local Vertessy, R., Mitrovic, S., Barma, D., Baumgartner, L, Bond N., and Sheldon, F. (2019), Independent Assessment of the 2018-19 Fish Deaths in the lower Darling: Final Report. Independent Panel Report for the Australian Government.
Statement from the NBAN Board, 14 January 2016, Moree. MDBA (2016), Our water, our life: An Aboriginal study in the northern basin, MDBA.
Badger Bates’ submission to the South Australian Royal Commission on the Murray–Darling Basin, 13 February 2019.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes. Resources, 7: 16-32.
Western Local Land Services have recorded the traditional language and specific uses of native plant materials in designated study areas for a series of ‘Ecological Cultural Knowledge’ projects across the area.
MDBA (2016), Our water, our life: An Aboriginal study in the northern basin. Murray–Darling Basin Authority. Maclean, K., Bark, R.H., Moggridge, B., Jackson, S., and Pollino, C. (2012), Ngemba Water Values and Interests. Ngemba Old Mission Billabong and Brewarrina Aboriginal Fish Traps (Baiame’s Ngunnhu). CSIRO, Australia, available at: https://publications.csiro.au/rpr/download?pid=csiro:EP127320&dsid=DS1;
Bark, R., Barber, M., Jackson, S., McLean, K., Pollino, C.A. and Moggridge, B. (2015), Operationalising the ecosystem services approach in water planning: a case study of indigenous cultural values from the Murray-Darling Basin, Australia.
International Journal of Biodiversity Science, Ecosystem Services & Management, available at: http://www.tandfonline.com/doi/pdf/10.1080/21513732.2014.983549
Vertessy, R., Mitrovic, S., Barma, D., Baumgartner, L, Bond N., and Sheldon, F. (2019), Independent Assessment of the 2018-19 Fish Deaths in the lower Darling: Final Report. Independent Panel Report for the Australian Government.
Examples given include studies about impacts of groundwater extraction, and on groundwater dependent culturally significant sites. Overall, it is clear that Aboriginal people of the region view themselves as an integral part of the river and water system; which sustains life, well-being, history and identity.
The Commission argues that these strong and ongoing cultural values and uses need to be better recognised in water planning, management and access into the future and should be immediately supported with an interim flow allocation for each Aboriginal nation in the Plan area; as has been implemented in other jurisdictions.
The Plan also needs to specify Aboriginal water-related values, objectives and outcomes. This process needs to be undertaken in consultation with Aboriginal nations in the Plan area and in line with:
· guidelines for identifying and protecting Aboriginal values, objectives, outcomes included in the National Water Initiative, the Act and the Basin Plan, and operationalised in some parts of the Basin through the Aboriginal Waterways Assessment method;
· processes of flow allocations set out in the National Cultural Flows Project to support Aboriginal water interests of nations
· guidelines for flow allocations that emphasise the need to include spiritual, cultural, environmental, social and economic purposes and alignment but separation from environmental flow allocations;
SMART performance indicators and targets to ensure progress against the stated outcomes, as part of an agreed monitoring and evaluation plan with clear resourcing and reporting responsibilities to deliver as intended.
The Commission notes DPIE-Water’s recent efforts in supporting Aboriginal outcomes, particularly their work in integrating more detailed Aboriginal cultural objectives and measures in water resource plans and revised water sharing plans currently on public exhibition and adopting nation-by-nation consultation. DPIE-Water should expand this work to address a significant gap in these activities over recent years (see examples in Appendix E).
The Commission recommends that DPIE–Water: 14 Take steps to improve Aboriginal engagement and outcomes, including: Providing an interim water allocation for each nation in the Plan area. An interim allocation is required to deliver clear and immediate support for water rights that
Submissions to the Commission for this review, including: Jackson, Hartwig, Tan – Griffith University; Dharriwaa Elders Group: The Queensland Government has used unallocated flows to support Aboriginal water interests as part of their draft water resource plans, see: https://www.mdba.gov.au/sites/default/files/pubs/qld-water-connectionsaboriginal-peoples-water-needs-in-the-murray-darling-basin-2019_1.pdf.
Where systems are fully allocated, it is possible to investigate options for the use of market instruments to allocate these flows. Available at http://www.mldrin.org.au/what-we-do/aboriginal-waterways-assessment/
Available at http://www.culturalflows.com.au/
Cultural flows are defined as “…water entitlements that are legally and beneficially owned by the Indigenous Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Nations. This is our inherent right.” (Echuca Declaration, 2010 quoted in the Basin Plan)
The NBAN Board found that there is a risk that environmental watering, which benefits Country, is confused with cultural water, a different water allocation necessary for cultural use as determined by Aboriginal Nations (MDBA, 2016, Our water, our life: An Aboriginal study in the northern basin)
The Commission recommends that DPIE–Water: responds to a long period of inaction. This approach also acknowledges the significant amount of time needed to identify Aboriginal water-related values, objectives and outcomes, and develop final agreed flow allocations in consultation with all relevant Aboriginal organisations, including traditional owners and Aboriginal Land Councils.
Aboriginal water licences need to support values and uses The Plan includes Aboriginal water licences to support cultural outcomes in line with the Act. The Act includes three categories of Aboriginal water access licences:
1. cultural access licences;
2. Aboriginal community development licences;
3. Aboriginal environment licences.
These access licence categories have been implemented in different ways across the state. Cultural use licences are available in all surface water and groundwater management areas. In contrast, community development licences are only available in catchments where water extraction is not yet over allocated (largely in coastal water management areas), and Aboriginal environment licences for supplementary water are only available in areas of high river flows.
All Aboriginal specific licences include conditions that set limits to volumetric entitlements, use options, and restrict or prohibit trade. Within the Plan, cultural water access licences are included and capped at 10 ML per year, while the Aboriginal environment licences for supplementary water are set at 2,000 ML per year. Community development licences are not included in the Plan (or any equivalent mechanisms to recognise and foster economic benefits to Aboriginal people) as it is a fully allocated system.
Despite these licences being available, the draft audit of the Plan found that no communities in the Plan area have accessed water under these provisions and there is no water reserved for use under these entitlements. This lack of uptake has been related to the limits to volumetric entitlements and restrictions noted above, and also a lack of access to land and required infrastructure (pipes, pumps, fuel and storage).
DPIE-Water does not appear to have a policy or protocol for processing applications for supplementary water (Aboriginal environmental) access. The process for obtaining cultural water access has been described as ‘laborious’, with no guidance for Aboriginal people and limited staff to assist with applications.
Some stakeholder submissions stated that the Aboriginal community should be better supported to access water entitlements, and that water should be secured to allow allocations in line with the National Cultural Flows research project. The Commission notes that DPIE-Water has taken significant steps recently to address these issues (see Chapter 10.3). Aboriginal environment licences for supplementary water is a licence category that is only available in the Barwon-Darling.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes. Resources, 7: 16-32.
Submissions to the Commission for this review including: Environmental Farmers Network; MLDRIN; MDBA; Dharriwaa Elders Group, Australian Floodplain Association; NSW National Parks Association;
The Commission recommends that Aboriginal licence categories, and the processes for applying for them, need to be simplified and clear to enable better access to water. This needs to address a range of Aboriginal water interests including economic opportunities and acknowledge the other issues that can impact on access to water through licences, including:
· limits to volumetric entitlement;
· restrictions on uses;
· complexity of licence governance and application processes;
· limited awareness and capability around water licencing;
· restricted access to land and water infrastructure.
The Commission recommends that DPIE–Water: 14 Take steps to improve Aboriginal engagement and outcomes, including: Simplifying licence categories and processes for Aboriginal water access that can address include cultural, environmental, social and economic purposes.
Aboriginal involvement can be improved Aboriginal involvement in water management has been variable and ineffective over the past 20 years. Water management committees, as described in the Act, were not used after 2004.
From 2016, Stakeholder Advisory Panels were established, each with 14 or 15 members, including Aboriginal representatives. Regardless of native title rights, there are provisions for only one Aboriginal community representative member on each surface water Stakeholder Advisory Panel, and two on the single state-wide groundwater Stakeholder Advisory Panel.
Previously these roles were filled by staff under the NSW Aboriginal Water Initiative who had an understanding of water management. However, with the cessation of this initiative in 2017, Aboriginal Elders are expected to take on these roles with often limited experience in water management. This type of piecemeal engagement of Aboriginal traditional owners and communities has not provided adequate representation.
For example, management of water resources in Barkandji country will be informed by at least three Stakeholder Advisory Panels, two of which currently Brewarrina Shire Council; Central West Environment Council; Wentworth Shire Council; have one Barkandji representative each. Moreover, Barkandji traditional owners have representation on Murray Lower Darling Rivers Indigenous Nations (MLDRIN) but not on Northern Basin Aboriginal Nations (NBAN).
Economic opportunities may include Aboriginal employment in NSW water management, leasing of water licences or native bush food centres.
Submissions to the Commission for this review including Commonwealth Environmental Water Holder; MLDRIN; Dharriwaa Elders Group.
Hartwig, L.D., Jackson, S. and Osborne, N. (2018), Recognition of Barkandji Water Rights in Australian Settler Colonial Water Regimes. Resources, 7: 16-32. 4
The Aboriginal Water Initiative Program was established in 2012 and ran until 2017, funded at $1.69 million per year. It aimed to improve Aboriginal involvement and representation in water planning and management in NSW and monitor progress against targets established in water sharing plans.
Taylor, K.S., Moggridge, B.J. and Poelina A. (2017), Australian Indigenous Water Policy and the impacts of the everchanging political cycle, Australasian Journal of Water Resources, 20:2, 132-147.
Moggridge, B.J. and Thompson, R. (2019), Aboriginal voices are missing from the Murray-Darling Basin crisis. The Conversation, 20 June, available at: https://theconversation.com/aboriginal-voices-are-missing-from-themurray-darling-basin-crisis-110769
A number of submissions raised the need to improve involvement of Aboriginal stakeholders, noting the limitations of current ‘community engagement’ approaches rather than active involvement in water planning and ongoing management. Submissions note continued efforts by multiple stakeholders to raise these issues and frustrations at the lack of government response.
The Commission recognises DPIE-Water’s recent efforts to address these issues by engaging on a nation-by-nation basis as part of the development of water resource plans – see Chapter 10.3 for more information about recent initiatives to improve Aboriginal engagement and outcomes.
Due to the long time frames to undertake meaningful engagement and build trust, it is important to follow clear and transparent guidelines. The Commission recommends agreeing on an appropriate engagement process and timeframe with nations, traditional owners, the NSW Aboriginal Land Council and Local Aboriginal Land Councils that is then led by these groups; noting this will vary between nations and communities and cannot rely on the limited representation provided by existing Stakeholder Advisory Panels.
DPIE-Water should also ensure engagement activities are well resourced and supported by Aboriginal staff with knowledge of water planning and management that can help to build water literacy and capability in communities.
The Commission recommends that DPIE–Water: 14 Take steps to improve Aboriginal engagement and outcomes, including: Building on the established nation-by-nation engagement already being undertaken to identify Aboriginal values and uses, objectives and outcomes, and flow allocations. This should use relevant guidelines, be well-resourced with Aboriginal staff experienced in water management, and include a specific process and clear timeframe for implementation in consultation with all relevant Aboriginal groups.
More can be done to improve Aboriginal outcomes The Commission notes recent efforts of DPIE-Water in supporting Aboriginal outcomes, particularly their work in integrating more detailed Aboriginal cultural objectives and measures in revised water sharing plans currently on public exhibition.
Key initiatives of DPIE-Water include:
· Nation by Nation consultation - with Aboriginal Peoples across 29 Aboriginal nations to better understand each nation’s values and water objectives to inform water resource plans. Consultation began in March 2018 and should involve around 70 workshops and 180 face to face interviews with traditional owners by the end of 2019. The outcome will see 29 nation reports included in the 22 water resource plans in the Basin, including the four nations in the Plan area - Barkandji, Murrawarri, Ngemba and Ngiyampaa Nations.
· funding to Barkandji - to make sure the Barkandji Peoples are adequately supported in water reforms in NSW, DPIE-Water has provided funding to the Barkandji Prescribed Body Corporate over two years to assist them to participate in the water reform processes.
· metering traineeships - as part of new metering rules, meters need to be validated by certified meter installers. DPIE-Water is funding two Aboriginal traineeship positions to undertake meter validation and will result in the individual becoming qualified to validate meters under the NSW Government’s new metering framework.
· two additional Aboriginal staff - in Broken Hill and Albury in addition to four existing permanent Aboriginal staff to help DPIE-Water service First Nations across the state.
· coordinating engagement activities - DPIE-Water is also working internally to better coordinate engagement with Aboriginal stakeholders, for example by having a single point of contact for the Barkandji Peoples to reduce confusion and engage more effectively.
DPIE-Water should progress and expand this work to address the inaction and setbacks experienced in NSW since the disbanding of the Aboriginal Water Initiative in 2017. Many submissions noted that significant efforts are needed to redress Aboriginal values and uses, objectives and outcomes across all water sharing plans, in consultation with Aboriginal stakeholders.
This state-wide activity needs to be undertaken in a consistent and transparent way, led by an overarching NSW Aboriginal Water Strategy or similar, with supporting governance, staff and resources.
Submissions have raised valuable examples of such approaches including: an overarching Aboriginal Water and Land Holder and an associated Trust Account; dedicated Aboriginal roles in water management (for example Aboriginal Rangers and Water Officers for monitoring and compliance); and Cultural Flows Projects and Officers. Support for broader activities at the state and Commonwealth level are also fundamental to ensuring an effective coordinated response from DPIE-Water.
DPIE-Water also advised that the Commonwealth has committed $40 million to support cultural and economic water entitlements for Murray-Darling Basin Aboriginal communities through the Indigenous Land Corporation, and another $20 million in grants to remote, rural and regional Aboriginal communities impacted by the Basin Plan.
These efforts need to be supported and further developed through a formal strategy and funded policies as adopted in other states, to support ongoing Aboriginal involvement and leadership in water management across NSW, and beyond the current water resource plan and water sharing plan processes.
Submissions to the Commission for this review including: MLDRIN Board; MDBA; Dharriwaa Elders Group NSW Aboriginal Land Council.
Submissions to the Commission for this review including: MLDRIN Board; NSW Aboriginal Land Council; NSW Irrigators Council.
Recent reforms in Victoria under the Water and Catchment Legislation Amendment Bill 2019 have formalised obligations for Victorian water and catchment management agencies to engage with and support opportunities for Aboriginal involvement. The Water for Victoria Plan has also been central to providing opportunities for Aboriginal Nations to document water-dependent values, collaborate with water management agencies and pursue economic development opportunities through access to water.
Conclusion
Considering the poor state of our Darling Baaka River system we have an opportunity to work together, to bring experts, governments and Traditional owners together to bring our waterways back to life. We put forward that the way to achieve this is through the formation of the Baaka Water Commission – An entity that gives us all an equal voice with the best interests of the health of our beautiful life-giving Baaka and the individuals, communities and livelihoods that rely on it!
We have the cultural right to speak for our Baaka and do so under Traditional Lore in our attempt to make a lasting difference for the generations who will become custodians to our scared and ancient lands and waters in to the future.
The Baaka Water Commission is in no terms also any form of compensation for the injustices, mismanagement, and any act of discrimination against the Barkandji Native Title Holders and their rights.
Let’s share the journey as one in Unity and make Respectful, informed, accurate, meaningful, realistic, achievable, resourced, measurable, humanistic, environmental, social, emotional, economical, change that is Holistic to the wellbeing of the Baaka Water Community.