Although Australia’s innovative water policies and management frameworks have resulted in significant gains regarding water management, some of these policies have had impacts on access to water for Aboriginal and Torres Strait Islander Peoples. In an interview, Bradley Moggridge, Aboriginal water expert, surfaced that the National Water Initiative’s de-coupling of water and land has had the unintended effect of making access to water difficult for First Nations communities in Australia. This article explains in greater detail why land and water rights are separated in Australia, and what the unintended consequences have been.

Before colonisation, First Nations Peoples had unhindered access to water resources affixed to land and easy to access in each season. This water was used in everyday life and played an integral role in communities. As water and land became more commodified and often seen as a resource to market rather than a resource to protect, this access has been largely removed.

When Australia’s land and water were given away “by the bucket load” First Nations’ Peoples were still considered flora and fauna, enjoyed few rights, and were often restricted to living on missions and reserves. When finally they ‘became’ human all the good land located in proximity to water resources was already allocated in many river basins.

In Australia, to address mismanagement and water scarcity concerns, water and land rights were separated by the states and territories. The National Water Initiative legislation made huge strives to address environmental damage, wasted water, and poor water management practices. But, it also had the unintended consequence of locking First Nations Peoples out of the water market, particularly during dry times. They had land but not water, with no new access points through water plans.

Before this legislation, water was typically associated with land rights and allocated to people as they needed it. There was little to no cost involved for users. Now, water property rights do not go along with land ownership.

Why separate land and water rights?

The separation of land and water rights has a long history going back to Roman Times, where private rights were given to smaller, perennial watercourses. An FAO paper, entitled ‘Land and water: the rights Interface’, explores the economic, historical, and practical causes and consequences of the separation of land and water rights. This paper states that the separation of water rights from land rights may be suitable for conditions where: (a) different water qualities are required for different activities, or (b) water is limited in quantity and needs to be allocated for specific purposes to achieve pre-determined outcomes.

In Australia, water rights were put into place to balance economic and environmental objectives in a hydrologic system characterised by extreme weather conditions and poor management practices. Although these two objectives have become more balanced through the management of water rights and water markets, Moggridge points out that Indigenous cultural values have not yet been fully addressed through this system.

In Victoria, the 2016 water plan, Water for Victoria, is attempting to fully realise Indigenous, social, and recreational values through dedicated funding and political will. This plan represents an integrated, holistic approach to water planning and management that could pave the way for a truly value-based approach to water management where resources are often scarce.

First Nations’ access to the water market is limited

Brad explains that the separation is market-driven and excludes the majority of First Nations communities because water can be expensive to buy.

“In wet times, you might be out to buy some water at a decent rate but when it’s dry, you know water is liquid gold now. If you have water in dry times, you can get quite rich off it. Aboriginal People may be land rich, but in some instances are often money poor”Brad Moggridge, Aboriginal water expert

Without the funds needed to buy water, especially in dry times when it is at a premium, First Nations Peoples cannot benefit from market-driven legislation and in fact, are at a disadvantage because of it, as it is all but impossible to gain new access points.

“That was something that we tried to look at internally at the New South Wales Aboriginal Water Initiative, to try to establish ways or access points for Aboriginal People to get water,” says Moggridge. “There were a couple of licensing opportunities, there were cultural grounds and there were small quantities.”

Gaining water access

To try to gain access, Indigenous Australians are having to look at other opportunities, such as using retired water or getting philanthropic or corporate funding to be able to buy water.

Whether consumptive or non-consumptive, gaining access for water use is proving difficult for Australian and Torres Strait Islander populations. Government, water managers, and users are now facing the challenge of respecting Indigenous culture, traditions, and rights while balancing a push for water as an economic resource. Access for First Nations Peoples is an important concern for many stakeholders and it is important to ensure they are not pushed out of the market. Many see a need to ensure reserved water access, now, and in the future.

The separation of water and land has other drawbacks aside from the economic issues discussed above. Water is important in traditional practices and cultural knowledge and by hindering access to it, the legislation affects people’s health and wellbeing. This includes mental health, as well as their connection to the land and one another.