Issues in Natural Resource Management: Implications of Native Title and the future of Indigenous Control and Management of Inland Waters

The year 2003 was declared by the United Nations as the International Year of Freshwater.2 In March that same year, at the Third World Water Forum in Kyoto, Japan, indigenous people re-affirmed the fundamental importance of water to their physical, spiritual and cultural existence in the Indigenous Peoples Kyoto Water Declaration. And in December 2003, the United Nations declared that 2005 - 2015 would be the International Decade for Action "Water for Life". These events were but a few of many international initiatives re-enforcing the growing recognition in the international sphere of the importance of this resource to the world, the need to manage it in a sustainable manner, and the role of indigenous people in such management.4 But where does Australia stand on the issue of the indigenous role in the management of inland waters, and how does native title rate as a source of recognition of this role? These questions have become all the more important given the water shortages being experienced in many parts of Australia, and the increasing focus on climate change. In looking at these matters, I begin by providing 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 paper of native title rights to water in Ward v Western Australia,5 there is a particular focus on the water management regime in Western Australia.Following this, I look at the provisions of the Native Title Act 1993 (Cth)which relate to native title rights and interests in water, and briefly touch on the scope of such interests that have been recognised in Western Australia to date.This will include a discussion of judicial interpretations of the provisions of the Rights in Water and Irrigation Act 1914 (WA). From this I then seek 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, I then review other avenues that have been proposed for recognising indigenous customary law. I then explore whether a conflict of laws approach to the recognition of indigenous customary law might be an alternative worthy of further investigation. The paper will conclude with a summary of the future for management of inland waters by indigenous Australians.