Water Down Under: A Report from Australia by Barbara Cosens: Post 5: Indigenous Rights to Water and Capacity Building

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts here, here, here, and here.]

The colonial and frontier history of both the United States and Australia had devastating impacts on Indigenous populations.  Similar to other areas of law, both countries began with a basis in the laws and approach to colonization of England, but they diverged in their definition of the rights of the Indigenous people inhabiting the land they came to colonize. 

While the United States “negotiated” treaties with Tribes, Australia adopted the concept of terra nullius – the land belonged to no one.  It was not until the High Court of Australia in Mabo v. Queensland, rejected the concept in 1992 (yes, 1992 not 1892) and the Commonwealth passed the Native Title Act in 1993, that Indigenous people could begin to assert the right to land and water in Australia. 

In rejecting the application of terra nullius to Australia in Mabo, High Court Justice Brennan stated: 

[a]ccording to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. 

Mabo was a watershed moment in the rights of Aboriginal Australians, yet it was also a ruling with limitations. The High Court in Mabo recognized no sovereign role for Aboriginal people.  Instead, it considered the rejection of terra nullius to lead to recognition of traditional ownership of land and water, not to recognition of sovereign control over that territory.  The Native Title Act allows exercise of certain hunting, fishing and cultural rights free from State regulation, but to date this has been a fairly limited area of sovereign authority. 

In contrast, the United States began by negotiating treaties with Tribes that at least legally reflected the same process it would use with foreign nations (i.e. Advice and Consent of the Senate) it quickly eliminated that approach and at the same time the U.S. Supreme Court articulated the concept that Tribes were “quasi-sovereigns” subject to the plenary power of Congress.  In recent decades the U.S. Supreme Court has taken an increasingly narrow view of Tribal sovereignty.  Nevertheless, the recognition of even limited sovereignty stands in stark contrast to Australia. 

This difference struck a chord with me as the result of my experience in both observing and participating in the review of the Columbia River Treaty.  The Tribal voice as sovereigns at the table and their expertise and credibility as co-managers of the U.S. Columbia River salmon fisheries altered the shape and substance of the U.S. regional review process.  Their participation was instrumental in the regional decision to recommend elevation of ecosystem function to a third prong of the treaty, along with hydropower and flood control.  This broadening of management values away from optimization for limited engineered services, if followed, would enhance basin resilience in the face of growing population and climate change for all basin residents. 

Tracing the rising voice of the four U.S. Columbia Basin Tribes that now form the Columbia River Inter-Tribal Fish Commission (CRITFC), a three stage process emerges: (1) original articulation of the right in the 1855 treaties guaranteeingthe right of taking fish at all usual and accustomed places in common with citizens of the Territory; (2) definition of the right in the 1974 Boldt decision as up to 50% of the harvestable fish passing a U&A (as a usual and accustomed place is referred to); and (3) capacity building to assert that right.  It is this final step, capacity building, in which the Tribes have built the sophisticated fisheries science and policy management agency we see today in CRITFC.  Only through development of capacity have the Tribes been able to assert their own vision, incorporate their own traditional knowledge, and bring to the table a sophisticated view of modern tribal needs that are not arrested in a historical romanticized view of Native peoples.  Truly this is what the UN Declaration on the Rights of Indigenous Peoples means by self-determination. 

My own view was that the two stages of articulation and definition of the right were necessary precursors to capacity building.  Not so.  I have learned of an innovative approach by the Ngarrindjeri Nation in South Australia that approaches capacity building from the opposite direction and holds substantial promise for broadening the vision of land and water management in areas with claims to Native Title. 

Without treaties or the recognition of even limited sovereignty, and with claims to Native Title pending, the Ngarrindjeri Nation has begun the process of entering private contracts with local government to secure their voice in management of the land and water at the Murray Mouth – the biologically rich estuary and wetlands near the mouth of the Murray-Darling River (see photo below).  The Ngarrindjeri Nation has reached out to federal, state and local government to both seek funding for capacity building and to participate in resource decisions.  The partnerships they are developing not only resemble what we see with CRITFC, but may go a long way to easing tension over claims to Native Title in areas shared by non-Native people. 

                 

I learned of the work of the Ngarrindjeri Nation from two amazing scholars and activists at the Yunggorendi First Nations Centre at Flinders University – Daryl Rigney and Steve Hemming.  In what might be referred to as participatory action research, they have both worked with the Ngarrindgeri Nation to develop this approach and studied the results, an approach that not only speaks to the effectiveness of the Yunggorendi Centre, but increases the potential for transfer of this approach to other settings.  It has convinced me that while rights, or at least the threat of their establishment, are an important step in the process, it is the building of capacity for First Nations to speak for themselves that is the key component to their success.