Water is country, country is culture: the translation of Indigenous relationships to water into law
This thesis is about how unique Indigenous conceptions of and relationships to water can be translated into law and subsequently recognised and protected. Water is Country and Country is culture. Water is not only an essential element of all life processes but also of the unique identities of the Canning Basin traditional owners; the Karajarri, Nyikina and Mangala, Ngurrara, and Tjurabalan people. Relationships to water reflect not only intimate knowledge of where water can be sourced, whether a water source is permanent or seasonal, and its interactions with the underlying groundwater, but are also the source of Indigenous rights and interests. ‘Ownership’ of land and waters is expressed as ‘belonging to Country,’ with specific duties and responsibilities to care for water sources. Senior law holders are responsible for the maintenance of specific water places, and the cultural relationships with the sentient beings that live within permanent water sources (or jilas). Custodianship of water and the authority to make decisions over water are built into social interactions between landscapes and people. As such these norms form the basis of the legal traditions of the Canning Basin groups, providing a normalising authority for judging water access and use. The modes of cultural validation within the Canning Basin are reflected in the language, laws and customs of the Karajarri, Nyikina and Mangala, Ngurrara, and Tjurabalan people. As such, it is the relationships, and the corresponding knowledge and interactions that sustain these relationships that create the rights of the Canning Basin traditional owners to water, and, as we will see, form the basis of their recognised native title rights and interests. In Australia, Indigenous forms of native title are legally recognised by a statutory process outlined in the Native Title Act 1993 (Cth) enacted after the original Mabo decision, in which the High Court held that Indigenous laws and customs continue to exist and would be recognised by Australia’s property law system. The Mabo decision has enabled the retrospective recognition of Indigenous laws and customs. Parallel to the emerging legal recognition of Indigenous relationships to Country has been the recognition of the urgency of climate change, water scarcity and ecological degradation, creating an opportunity for an alliance between Indigenous and non-indigenous interests in protecting water places. In particular, the slow decline of the Murray Darling has brought the need to reconsider existing water management practices into stark relief while also causing developers to focus on the undeveloped northern Basins in Australia. The way in which water development is negotiated reflects broader questions: how can the pre-sovereignty rights of Indigenous people to traditional waters be recognised and to what extent will the relationships between the Canning Basin traditional owners and their underground rivers find expression in current laws? These questions are often answered based on the interaction between water planning and allocation and native title as enacted under legislation. However, focus on the internal coherency of the law has often distracted scrutiny away from the origins of legal traditions and its role in the iterative relationship with culture and identity. Socially and culturally ascribed normative values underpin the ability of the law to accommodate Indigenous claims. Within marginal contexts, dominant and projected relationships to water will continue to prevent the self-determined development of Indigenous groups. The central question of this thesis is: how can Indigenous relationships to water be meaningfully translated into Australia’s water laws? This research question involves two objectives: to articulate, both conceptually and legally, Indigenous legal traditions for defining relationships to water, reflected through cultural values and practices that relate to water, and to assess how Indigenous rights and interests in water have been translated into judicial decisions, as well as policy and legislative initiatives in both Australia and comparative jurisdictions.
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