Rachel Siewert (WA, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 5660 together with the exception of clauses 10 and 11:

(1)    Page 326 (after line 32), at the end of the bill, add:

Schedule 4—Amendments related to the recognition of Indigenous water rights

Water Act 2007

1 After paragraph 3(d)

Insert:

           (da)    to give recognition to Indigenous water rights and delivery of cultural flows; and

2 Subsection 4(1)

Insert:

cultural flows are 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 Indigenous Nations.

3 Subsection 4(1)

Insert:

cultural water has the meaning given by section 6A.

4 Subsection 4(1) (definition of relevant international agreement)

After paragraph (h), insert:

           (ha)    the United Nations Declaration on the Rights of Indigenous Peoples;

5 After section 6

Insert:

6A Cultural water

        (1)    Cultural water comprises water entitlements derived from cultural flows.

        (2)    Cultural water within the Basin can be used for the following purposes:

             (a)    empowerment and social justice—water is delivered to Country by the peoples;

             (b)    growing native plants;

             (c)    protecting and hunting animals;

             (d)    song, dance, art and ceremony;

             (e)    spiritual sites;

              (f)    improved cultural, economic and health outcomes through the provision of food, medicines and materials for art.

6 At the end of section 21

Add:

Basin Plan to recognise the right to cultural water

        (8)    The Basin Plan must be prepared so as to recognise cultural flows and provide recognition of entitlements to cultural water.

Note:   cultural water has the meaning given by section 6A.

7 After paragraph 22(3)(e)

Add:

           (ea)    the recognition of cultural flows and entitlements to cultural water; and

8 At the end of subsection 28(1)

Add:

    ; and (f)    recognise cultural flows and entitlements to cultural water.

9 At the end of subsection 178(3)

Add:

           ; (h)    Indigenous water rights and cultural flows.

12 At the end of subsection 202(7)

Add:

      ; or (e)    uses water as cultural water.

Note:   cultural water has the meaning given by section 6A.

(2)    Clause 2, page 2 (table item 4), omit “Schedule 3”, substitute “Schedules 3 and 4”.

These amendments are related to the recognition of Indigenous water rights. This is a very important issue. Members of this chamber will be aware that the Greens have been pursuing the issue of cultural water flows for quite some time. I moved some similar amendments previously, when we were debating the Water Act 2007. This very importantly deals with not only Indigenous water rights but also establishing cultural flows in the Murray-Darling Basin.

Indigenous nations are, and have been since time immemorial, connected to and responsible for their lands and waters. The peoples of every Indigenous nation obtain and maintain their spiritual and cultural identity, life and livelihood from their lands and waters. In addition, Indigenous nations each have responsibilities and obligations under their Indigenous law and custom to protect, conserve and maintain the environment and ecosystems in their natural state to ensure the sustainability of the whole environment.

In November 2007, Indigenous peoples for the nations represented within MLDRIN, which is the Murray Lower Darling Rivers Indigenous Nations, met in Echuca to come to an agreement on the definition of cultural flows and to discuss the impacts and benefits. The Indigenous nations of the Murray-Darling Basin have been working on this for quite some time and are very keen to ensure that their water rights are recognised and that cultural flows are provided for in the Murray-Darling Basin plan.

I would just like to remind the chamber that it is often cited that within Australia the percentage of land in the Indigenous estate is around 20 per cent. However, in the Murray-Darling Basin, Indigenous peoples currently hold less than 0.2 per cent of the land, despite comprising around four per cent of the basin’s population and despite land reforms such as the New South Wales Aboriginal Land Rights Act 1983 and the Native Title Act 1993. In other words, Aboriginal people’s connection to and involvement in the management of the Murray-Darling Basin has been extensively broken over a considerable period of time. We believe it is about time that we start recognising this and making provisions for Indigenous water rights and cultural flows.

The right to access water is supposed to be provided by the National Water Initiative and other Commonwealth and state mechanisms, but many of these are contingent upon positive native title determinations. Given the current disparity of Aboriginal land tenure within the Murray-Darling Basin, we believe access to water for Indigenous peoples has been severely limited and restricted. Unfortunately, until relatively recently, cultural flows have not been on the political agenda in Australia. They have not been part of the discussions on natural resource management. So, while Australia has moved on and is finally starting to recognise environmental water flows and the importance of natural resource management, we still have not adequately incorporated Indigenous knowledge, expertise and experience into natural resource management. As I said, making provision for cultural flows, in particular, still has not been fully and properly incorporated into our decision making.

MLDRIN defines cultural flows as water entitlements that are legally and beneficially owned by the Indigenous nations and that are of a sufficient and adequate quality and quantity to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous nations. Cultural water flows have many benefits and impacts. These include empowerment and social justice, where water is delivered to country by the peoples. They further include growing native plants, protecting and hunting animals, song and dance, art and ceremony, spiritual sites and improved cultural, economic and health outcomes through the provision of food, medicines and materials for art.

The difference between environmental and cultural water is that cultural water is the Indigenous peoples themselves deciding where and when water should be delivered, based on traditional knowledge and aspirations. This ensures that Indigenous peoples are empowered to fulfil their responsibility to care for country. The question of volumes needed under cultural flows needs to be acknowledged and scoped. More work needs to be done. MLDRIN acknowledges that that work does need to be done. But of course we need to make provision for cultural flows in the first place in order to ensure that there will be water available once the decisions have been made and the calculations have been done on the issue of volumes.

I would like to point out that there are a number of international conventions and processes through which there has been recognition of Indigenous rights to water. They include the International Convention on the Elimination of All Forms of Racial Discrimination 1965. A number of the provisions of this convention relate to the rights of Indigenous peoples to access and use their traditional water resources. For example, paragraph 5 of recommendation 23 of the convention says:

The Committee especially calls upon State parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources and, where they have been derived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories.

The World Heritage Convention also recognises cultural landscapes and their links to conservation and diversity. Included within that is a new category of cultural landscapes. Despite the emphasis on the recognition of Indigenous concepts of culture and appreciation of the sacred nature of these particular sites, a recent analysis of the implementation of the provision for the protection of cultural landscapes revealed that there is a Eurocentric nature to the sites listed and cites the fact that there has been a gap in recognition of the role of Indigenous peoples and Indigenous involvement in those cultural landscapes. The International Covenant on Economic, Social and Cultural Rights also applies here, as does the Convention on Biological Diversity 1992 and of course the draft declaration on the rights of indigenous peoples.

So the issues around cultural flows are recognised internationally. Australia is still to adequately deal with the issues surrounding cultural flows. Cultural flow issues certainly were not given recognition in the Water Act 2007 and are not included in the Water Amendment Bill 2008. We believe it is time that we start recognising these issues and start including a legislative basis for cultural flows. We acknowledge that further work needs to be done on how to implement cultural flows, but we believe we are far past the time when we should have given this issue a legislative base.

The Greens amendments on sheet 5660 relate to a number of issues, including the recognition of Indigenous water rights and the delivery of cultural flows, and we have used the MLDRIN definition of ‘cultural flow’. The amendments provide mechanisms by which we can start to incorporate cultural flows in the act and then start to implement those commitments, if the amendments are accepted, into the legislation—for example, establishing an Indigenous water subcommittee including people with expertise in Indigenous water rights and cultural flows. The amendments include recognition of cultural flows and also how we start to include cultural flows in decision making. I commend the amendments to the chamber.