Water rights

Importance of First Nations Water Rights

Water is an essential for all life. For Aboriginal and Torres Strait Islander people it holds profound cultural, spiritual and physical significance. Water sustains wellbeing, connection and obligation to Country.

First Nations water rights include inherent cultural rights over waters, some of which are recognised under international and Australian law. Water rights can also be enacted through western systems of water ownership and use, like water licences.

The Current Situation

Before colonisation, Aboriginal and Torres Strait Islander peoples owned and managed all water across the continent. Now, less than 0.2% of Australia’s inland waters are legally in First Nations hands. Significant work must be done to return water to First Nations communities.

Legal Recognition of Water Rights

Rights under international law

The United Nations Declaration on the Rights of Indigenous Peoples(UNDRIP) is the most comprehensive international framework recognising First Nations water rights. Relevant provisions include:

• Article 25: Right of Indigenous people to maintain spiritual relationship with water
• Article 27: Right to govern waters according to Indigenous laws and customs
• Article 32: Right of Indigneous peoples to decide what activities happen on territories, including water-related activities.

Australia is a signatory to UNDRIP, yet government has not yet translated these rights into laws and policies.

Native title rights

The Native Title Act 1993 recognises Traditional Owners’ water rights based on traditional laws and custom. However, these rights are generally limited to taking and using water for cultural purposes. It has historically been difficult to establish rights for commercial and economic water use. This means opportunities to develop commercial fishing operations or native food businesses through native title rights have been limited.

Statutory water rights

State and territory laws govern water rights in Australia, meaning they vary significantly across jurisdictions. These rights typically come in the form of water licenses, shares or allocations. Licenses generally include:

• Conditions on usage amounts
• Requirements for agreed commercial purposes.

These rights are not specific to Aboriginal and Torres Strait Islander people.

First Nations excluded from water access

Aboriginal and Torres Strait Islander organisations hold very few water entitlements under these statutory schemes, limiting opportunities for economic empowerment and cultural, spiritual and environmental outcomes.

Aboriginal and Torres Strait Islander people are regularly excluded from water planning, allocation and management processes, meaning large amounts of water can be allocated from waterways on their Country without their involvement.

National Agreement on Closing the Gap

In 2020, the Coalition of Peaks and all Australian governments signed the National Agreement on Closing the Gap, The National Agreement included targets to increase Aboriginal and Torres Strait Islander land and sea rights.

The National Agreement also committed to establishing a national inland waters target by 2021.

For the purpose of the target, inland waters are defined as:

Water that is inland from the coastal zone, is not ‘sea water’, and is located above the tidal limit and within land boundaries.

Progress and challenges

From 2020-2024, progress towards a target was slow and the commitment to introduce a target by 2021 was not met. Each state and territory had very different water regimes and ways of recording water interests, which meant it was not straightforward to develop a national baseline or national target.

In 2024, the Joint Council on Closing the Gap agreed to establish separate targets for each state and territory. These targets are due to be negotiated by the end of 2026 in partnership with state-based Peak bodies and Traditional Owner organisations.

Cultural flows

Any increase in Aboriginal and Torres Strait Islander water entitlements should be consistent with the definition of cultural flows set out in the Echuca Declaration which states:

“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. This is our inherent right.

This means a water reserve which is not “legally and beneficially owned” by a Traditional Owner group will not meet the definition. Nor will a licence purely for cultural or economic purposes rather than the full set of conditions set out in the Echuca Declaration.

The NNTC’s Role

The NNTC’s primary role in the inland waters target negotiations is as co-chair of the Inland Waters Target Working Group.

This working group oversees how each state and territory government is working with Aboriginal and Torres Strait Islander Peaks and Traditional Owner organisations in their jurisdiction to negotiate a target and enabling reforms. The NNTC also supports members to participate in negotiations through access to resources, expertise and information.

Beyond the inland waters target, the NNTC advocates more broadly recognition and enforcement of Traditional Owners’ rights over both their lands and their waters.

Resources & Links

• The National Agreement on Closing the Gap: https://www.closingthegap.gov.au/national-agreement

• DCCEEW First Nations Water Policy: https://www.dcceew.gov.au/water/policy/first-nations

• Background paper: National First Nations Water Roundtable 2023: View the document here.

• National First Nations’ Water Roundtable Outcomes Report 2023: View the document here.

• Watertrust Australia Landscape Map 2024: View the document here.

• MLDRN Echuca Declaration: View the document here.

• UNDRIP https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

• Native Title Act 1993: https://www.legislation.gov.au/C2004A04665/latest/text