From aqua nullius to aqua minimus? the legal recognition in Victoria of indigenous rights to participate in the management of inland water resources - lessons from Aotearoa-New Zealand

2017-10-10T05:41:23Z (GMT) by O'Bryan, Katharine Mary
My thesis involves an investigation and analysis of the legal recognition of Indigenous rights to participate in the management of inland water resources. My focus is on Victoria’s water management regime which I then compare with Aotearoa-New Zealand. I commence by exploring the concepts informing the topic, after which I set out various rationales for why Indigenous people are entitled to participate in water management. I also explain how I, as a non-Indigenous person, position myself to conduct research into Indigenous issues. I then examine the history of water law in Victoria, including the national dimension. An important element of this historical examination is the extent to which Indigenous people participated in the development of water law and policy. This provides the context for an analysis of the current water management regimes, in which I consider water specific legislation as well as other legislation by which Indigenous people may be able to participate in water management, including native title, land rights, cultural heritage and environmental legislation. At the national level, I conclude that involvement in water management is essentially advisory. Recognition in Victoria is limited to rights to take and use water for various non-commercial purposes, or to cultural heritage protection. Thus, although no longer in the pre-native title era of ‘aqua nullius’, Victoria has yet to move beyond ‘aqua minimus’. I then turn to Aotearoa-New Zealand. As a common law country with a significant Indigenous population, it warranted investigating to see if it had anything to offer Victoria, notwithstanding some notable differences between the two jurisdictions, including the existence of the Treaty of Waitangi. Following an overview of the history of water law in Aotearoa-New Zealand, I investigate three avenues for Māori participation in water management. First, by way of comparison with Australia, I consider native title, concluding that because of the continuing uncertainty in Aotearoa-New Zealand about the existence of native title rights to water, there is little that Victoria can learn from Aotearoa-New Zealand. I then consider Aotearoa-New Zealand’s primary statute governing water management, the Resource Management Act 1991 (NZ), concluding here that despite recognition of Māori interests, and mechanisms for Māori participation in water management, the RMA has not lived up to its full potential. This has led many Māori groups to turn to Treaty settlements to achieve their water management aspirations. In that regard I analyse two recent Treaty settlements, the 2010 Waikato River Settlement and the 2014 Whanganui River Settlement. My analysis reveals that they contain elements that have some similarities with existing Victorian mechanisms, but that the Victorian mechanisms do not extend as far. I then draw upon both jurisdictions in recommending proposals for legislative reform, including mandating consultation, recognising Indigenous interests and cultural values, strengthening the legislative status of joint management plans, and legislative provision for representation on various water management entities. These straightforward reforms would create a meaningful space for Indigenous voices in the water management landscape, and give Indigenous aspirations for participating in water management a viable prospect of being fulfilled.