Issues in Natural Resource Management - Inland Water Resources - Implications of Native Title and the Future of Indigenous Control and Management of Inland Waters

Abstract

This article begins with a basic outline of rights in water under the common law of Australia and the subsequent evolution into rights based in statute. Given the discussion later in the article of native title rights to water in Ward v Western Australia, there is a particular focus on the water management regime in Western Australia.

Following this, the article looks at the provisions of the Native Title Act 1993 (Cth) which relate to native title rights and interests in water, and briefly touches on the scope of such interests that have been recognised in Western Australia to date. This includes a discussion of judicial interpretations of the provisions of the Rights in Water and Irrigation Act 1914 (WA). From this the article then seeks to highlight some of the limitations of native title as an avenue for the recognition of indigenous customary law to control and manage inland waters.

Given the limitations of native title so identified, the article then reviews other avenues that have been proposed for recognising indigenous customary law. It then then explores whether a conflict of laws approach to the recognition of indigenous customary law might be an alternative worthy of further investigation. The article concludes with a summary of the future for management of inland waters by indigenous Australians.

Keywords: indigenous rights, water, native title, Australia