Facilitating Water Rights in Northern Australia Science Week Presentation John Mackenzie

Virtual Revolution in Water Planning From a minor, ad hoc activity to a mainline and continuous activity of government From a conception of water as a commodity or a service to a conception of water as a key ingredient in economic and social policy From a process that involved a small group of professionals to one that now involves many different disciplines and the public at large From a discrete area of policy to one which is influenced by a large array of political considerations from the promotion of development in particular regions to meeting the social and economic needs of particular social groups.

The National Water Initiative (NWI) “A nationally-compatible market, regulatory and planning based system of managing surface and groundwater resources for rural and urban use that optimises economic, social and environmental outcomes” Water Planning Water scarcity Emphasise that the NWI entails a combination of policy instruments Planning is the system of decision-making that outlines the social choices made to determine the allocation of water to achieve social/economic and environmental outcomes Creates the boundaries of the use of water resources Water Markets Water Regulation

Making Tradeoffs Transparent “…settling the trade-offs between competing outcomes for water systems will involve judgements informed by best available science, socio-economic analysis and community input…” Australia’s National Water Initiative Section 36

Indigenous Water Rights Under the NWI, governments have committed to: provide for Indigenous access to water resources through planning processes that ensure inclusion of Indigenous representation in water planning wherever possible, and water plans incorporating Indigenous social, spiritual and customary objectives and strategies for achieving these objectives wherever they can be developed take account of the possible existence of native title rights to water in the catchment or aquifer area. may need to allocate water to native title holders following the recognition of native title rights in water account for water allocated to native title holders for traditional cultural purposes

Correction to the historical exclusion of Indigenous people from water reform Pragmatic recognition based on the large and growing extent of land under Indigenous estate Provides basis for water allocation for cultural and commercial purposes Commits governments of Australia to acknowledging and protecting the special category of values that Indigenous stakeholders possess as Traditional Owners of the country’s water resources

How are people working together to develop water plans? Our TRaCK research team explored ways to improve collaborative approaches to water planning to: develop a better means to involve communities, industry and the public to include social, cultural and economic values in water planning, especially those held by Indigenous people.

Collaborative Planning Case Studies

Agency Barriers to Collaboration

National Water Planners Survey Survey of approximately 1 in 3 water planners from across Australia 51% of planners identified that there are specific processes for Indigenous engagement. Most referred to the participation of Traditional Owners or other Indigenous representatives on the community reference panels. Cultural assessment is regarded by planners as the least important technical assessment conducted for the development of water plans. Many planners consider the assessment of environmental requirements commensurate with the needs, values and rights of Indigenous stakeholders and Traditional Owners.

National Water Planners Survey

Unrealised Promise of Reform No national guidelines to ensure the inclusion of Indigenous rights or interests in water reform Inconsistent approaches across and within jurisdictions Biennial review of water reform conducted by the National Water Commission in 2009 found the explicit inclusion of Indigenous interests in water plans has been uneven and rare

Protocols and Policies for Indigenous Inclusion Indigenous Rights to Water Report: Lingiari Report to ATSIC (2002) Boomanulla Statement (2002) Protocols, Principles and Strategies Agreement for Indigenous Involvement in Land and Water Management - North Central Region of Victoria (2002) Indigenous Peoples Kyoto Water Declaration, Third World Water Forum (2003) Memorandum of Understanding between Murray Lower Darling Rivers Indigenous Nations (MLDRIN) and Murray-Darling Basin Commission (2006) United Nations Declaration on the Rights of Indigenous Peoples (2007) Indigenous Water Policy Group (IWPG) Statement (2008) Mary River Statement (2009) Indigenous Water Policy Statement (2010) Echucha Agreement (2010) http://www.indigenouswater.org/IndigenousDeclarationonWater.html http://203.147.162.100/pia/engagement/stories/docs/boomanulla.pdf http://www.atns.net.au/agreement.asp?EntityID=3661 http://ntru.aiatsis.gov.au/conf2006/download_docs/Papers/Steven_Ross.pdf

Indigenous Expectations from Planning Indigenous culture and values must be identified, respected and incorporated in natural resource planning and implementation, particularly with respect to the distinct connections maintained by Indigenous people to those resources. Recognition and reinforcement of Indigenous identity and status of traditional ownership and custodianship includes the recognition and respect of customary governance arrangements around the management of resources. Indigenous people must be recognised as a unique class of stakeholders in resource management processes, due to the inextricable connectivity between identity, spirituality and water.

Respect for cultural diversity of Indigenous people Indigenous knowledge about the environment must be afforded parity with scientific knowledge in decision-making Where possible, active measures must be made to ensure legal protection of community intellectual property rights with regards to this knowledge. Respect for cultural diversity of Indigenous people including the differences in traditions, laws, sites, stories and cultural practices or traditional practices across communities. Planning processes must respect the cultural practices and custodial responsibilities of Indigenous peoples includes respect for community protocols as to who can legitimately speak for country The recognition of ongoing sovereignty and traditional custodianship of natural resources requires that the economic benefits that flow from natural resource management must be shared with Indigenous communities.

Priority Areas for Planning Indigenous Water Planning Issues Establishing terms of engagement processes that formalise relationships and establish a more level platform for negotiation between parties Defining or measuring Indigenous water use requirements tools and processes that enable greater clarification around water needs for cultural and consumptive purposes Access to the consumptive pool processes for articulating consumptive water needs and public benefit, outlining governance arrangements and determining procedures for access Knowledge and information exchange methods for enhancing cross-cultural knowledge exchange, recording of Indigenous knowledge, protection of Indigenous property rights, communicating Western hydrological knowledge and predictions Participatory goal setting participatory planning techniques which allow for articulation of social and economic aspirations in relation to water needs Water management regimes Guidelines for determining role of Indigenous groups in managing water, such as managing environmental flows or provision of other environmental services or monitoring

Development of Protocols Prior informed consent Respect for traditional modes of governance in decision-making Recognition of custodial responsibilities Integration of traditional ecological knowledge Flexibility in negotiation frameworks Alignment with community aspirations

Guidelines for Negotiation Platform Places Indigenous communities in a position to make informed decisions about future water use and management Ensures a strong negotiation position for those communities to maximise the financial and non-financial benefits of the water reserve Provides as much ownership and control of the decision- making process in the hands of the traditional governance structures of the Indigenous communities in the region as possible Allows for sufficient flexibility to initiate and advance planning objectives beyond responding to those of government agencies

Waterways Advisory Committee Wik Projects Pty Ltd received a Natural Heritage Trust grant in October 2008 to convene the Waterways, Wetlands and Coastal Management Advisory Committee Produced a draft Waterways, Wetlands and Coastal Management plan Similar catchment-based Indigenous Catchment Organisations emerging in Mitchell River, Kowanyama and Daly River

Key Features of Catchment Groups Unifies multiple and diverse language groups at a catchment scale Ensures space and opportunity for concerns, knowledge and values to be articulated Allows for engagement to be on Traditional Owner terms and consistent with custodial obligations Enables community to develop a strong framework for negotiation Allows for self-definition of Country in an integrated framework

Six priority northern Australian catchments Indigenous Water Facilitator Network Six priority northern Australian catchments The Guide will also draw on the knowledge and experience of the Indigenous Water Facilitator Network, particularly in relation to capturing what worked and what didn’t work for the facilitators in their experience across diverse settings. The facilitators have led the engagement and material testing for this guide, and have also provided structure, content and style advice and recommendations. Water Facilitators are based in Land Councils across north Australia

Diverse knowledge, beliefs, values and aspirations Model of Indigenous Water Facilitation Other Stakeholders Traditional Owners Diverse knowledge, beliefs, values and aspirations Decision making Water Facilitator Policy Management The aim of the model is to provide Indigenous communities with the capacity to directly engage in water management and planning and develop tool sets that can be used to inform policy development. Communication Negotiation Mediation Stakeholders Government agencies Rep bodies Land managers Community groups Industry groups Research providers Land & Sea programs Translation The Guide will support and expand on a well-established tradition of NRM facilitation, from ‘extension’-era resource management, through Landcare and catchment management, through to the Knowledge Brokerage model developed under NHT2. This facilitation model has a developed as an academic and practitioner body of knowledge. There is little adaptation of this work to the specific facilitation of Indigenous groups for NRM, although there is a wealth of untapped practical experience. As communities move from land acquisition to active land management (through ranger programs, IPAs etc.), the adaptation of this model of engagement is now and increasingly pertinent. The model presented in this diagram draws from Cash et al (2003) who investigated around 35 case studies to extract generalisable lessons for the design of NRM knowledge systems that establish institutional conditions most conducive to effective linking of knowledge, planning, decision-making and action. Published by the United States of America’s National Academy of Science, their findings suggest that effectiveness of knowledge exchange in NRM institutions is determined principally by two factors: the specific qualities of the knowledge and information being exchanged; and the role of ‘boundary work’ (that is facilitation) in overcoming the barriers which separate the knowledge sources and knowledge users. Planning Monitoring

Adapting Facilitation to Local Context Catchments with existing water management allowed greater facilitation of engagement in water management and planning by water facilitators. This provided foundations on which to develop Aboriginal Reference groups that could articulate aspirations for Indigenous led research and management programs. Where there were little or no foundations for engagement, facilitation was found to be complex and took time. Indigenous groups first needed to understand and articulate the cultural significance of water and their obligations under customary law to look after country before they could engage in government planning and policy development. When complex relationships exist between prescribed bodies corporate (PBCs) and state government development projects, caution needs to be applied so that Indigenous planning activities do not conflict with development aspirations of the representative body. Learnings from the IWCFN have demonstrated the need for flexibility in the approach to facilitation, based on scoping the political landscape. Regional facilitators need to navigate the dynamics of political, social, cultural environments at all levels of governance, including community, PBC, Regional Bodies, local organisations including local government, National Agencies, government departments and research community. This can have severe impacts on the ability of facilitators to lead the development of catchment action plans or strategies. To accommodate this, time frames and resource requirements need to be adaptive.

Community involvement Engagement Readiness Assessment iii) Community Ownership Information gathering Community consultation Catchment planning Negotiation position ii) Building Capacity Building community interest Awareness and understanding Dedicating or obtaining resources Developing community confidence i) Preparation Scoping existing or establishing new consultation frameworks Building community capacity to talk about water Formal or informal engagement protocols Community involvement The concept of escalating involvement was developed at the Broome meeting with the ICWFN, in recognition of the progress and limits to progress for the facilitators in each of the areas. The initial stages involved building the framework for meaningful discussions, which may not necessarily lead to outcomes, but is about creating local capacity for people to talk about water. A key part of this stages is about language and definition, for example, defining cultural values, spiritual water use, customary practice. Concept development in a way that respects the principles of prior informed consent takes time – most facilitators have spent up to three years working on this alone. Second stage community desires to be informed and kept up to date with water facilitation work, but are unlikely to dedicate resources or specific attention to issues. Over this period, the facilitator seeks to build engagement readiness (interest, knowledge, resources and confidence). Third stage is a trigger event – for example, bringing together the community in a regional forum, involvement or commitment of key community leaders/celebrities, or a moment of crisis or risk that the community responds to, such as a mining application or a government plan. Fourth stage is community ownership, where the community takes on organising the terms of engagement themselves – setting up reference groups, seeking information, engaging research, developing plans. There is a need to develop a plan of engagement for each of these stages, recognising that the actual transition between these stages can be sudden or unanticipated.

Impact of the Facilitator Program in Northern Australia

In the Kimberley Documenting Traditional Ecological Knowledge Co-ordinated a series of ‘back to Country’ visits to record and document traditional ecological knowledge Development of a DVD documentary on ‘why water is important to Miriuwung people’ was presented at the Indigenous Water Policy launch at Parliament House in Darwin Model for documenting knowledge and build consensus views across language groups, share learning, discuss issues and achieve a view they can represent to others.

In the Kimberley Documenting Traditional Ecological Knowledge “There has been some really impressive local successes, for example, the seasonal calendar developed by the East Kimberley ICWF has had an impact as a new way (for others) of talking about climate change and perhaps application of the technique as a monitoring tool. It’s a new national way of looking at change”.

In the Top End Formulating Policy on Indigenous Water Reserves Facilitated discussions on Strategic Indigenous Reserves (SIRs) between NTG statutory planning authorities, the Northern Land Council and Traditional Owners: Oolloo and Mataranka groundwater districts TOs were able to make collective decisions about water reserves based on technical and cultural information Devised a formula for their desired SIR water allocations to negotiate Government Led to the establishment of two ongoing Traditional Owner Reference Panels in the areas Set a precedent for establishment of SIRs in statutory water planning

In Cape York Negotiating Complexity and Conflict Wenlock Catchment Traditional Owner Forum (40 TOs attending) was convened and held in Mapoon over three days in December 2010 Established the Wenlock Catchment Management Group Established a plan for mapping cultural values in the region Meeting outcomes report used as a submission to the House Standing Committee on Economics for Mapoon.

In Kowanyama Recounting the History of Success Documented the history of the Kowanyama Land and NRM office over twenty years entitled ‘Kowanyama – Bottom end of the Catchment’. Translation of water and river information collected over history of the office Included information on historical successes, including developing partnerships with external agencies Translated outcomes of programs into plain language that shows the importance of water to TOs.

In the Mitchell Collaborative Research Protocols Formation of the Mitchell River Traditional Custodian Advisory Group (MRTCAG), which aims to review and manage any scientific research carried out on their country. On November 24, 2009, MRTCAG signed an agreement with the TRaCK research program It allows for cooperation and collaboration for conducting research on lands owned and managed by the Mitchell River Catchment Traditional Custodians. Requires researchers to follow an agreed set of protocols and a code of conduct for working on Indigenous lands in the Mitchell River Catchment.

In the Gulf of Carpentaria

Evaluations of the Facilitator Program “This model of having facilitators linked together under a common set of principles across Northern Australia is as close as anyone has come thus far to doing this in a meaningful way...”

Indigenous Community Water Facilitator Field Guide Drawing from the experiences of the NAILSMA Indigenous Water Facilitator Network and the full range of TRaCK research and publications, this work will compile outputs as a field guide for community-based water facilitators to support Indigenous communities to better understand and participate in water planning, management and decision-making.