INDIGENOUS PEOPLES LEGAL WATER FORUM A forum to explore the rights of Indigenous peoples to be involved in the governa

1. INDIGENOUS PEOPLES� LEGAL WATER FORUMA forum to explore the rights of Indigenous peoples to be involved in the governance of freshwater �Indigenous Australians Property Rights to Water� Lee Godden Melbourne Law School

2. Overview Trends impacting indigenous peoples� rights to water Climate change; economic restructuring Market Environmentalism and Water Governance Trends in water law and governance in Australia: environmental flows/ tradeable water entitlements Strategies for Involvement: rights-based and neo-liberal Water law regimes Native Title and Land Rights Legislation Consent determinations under Native Title Act 1993 Agreement-making

3. Broad trends affecting Indigenous Peoples� engagement on freshwater issues? Climate Change Physical and Social Impacts Economic and Legal restructuring Market environmentalism Ecosystem services; culturally-based livelihoods underpinned by sustainable water use Global markets Water Governance How to meaningfully include indigenous cultural values and traditional knowledge in existing legal frameworks Water quality Legal framework - common law, statutory; International

4. The significance of water to Indigenous people �Indigenous people hold distinct cultural perspectives on water, relating to identity and attachment to place, environmental knowledge, resource security, and the exercise of custodial responsibilities to manage inter-related parts of customary estates�, Langton 2002. See also growing attention to economic aspects of indigenous water use and access. Indigenous people hold distinct cultural perspectives on water, relating to identity and attachment to place, environmental knowledge, resource security, and the exercise of custodial responsibilities to manage inter-related parts of customary estates (Langton 2002; Toussaint, Sullivan and Yu 2005; Jackson 2005; Jackson and O�Leary 2006). In the belief systems of Australian Aboriginal peoples, water is a sacred and elemental source and symbol of life (Langton 2006) and aquatic resources constitute a vital part of the non-market indigenous customary economy. Indigenous people hold distinct cultural perspectives on water, relating to identity and attachment to place, environmental knowledge, resource security, and the exercise of custodial responsibilities to manage inter-related parts of customary estates (Langton 2002; Toussaint, Sullivan and Yu 2005; Jackson 2005; Jackson and O�Leary 2006). In the belief systems of Australian Aboriginal peoples, water is a sacred and elemental source and symbol of life (Langton 2006) and aquatic resources constitute a vital part of the non-market indigenous customary economy.

5. Water Law and Policy in Australia Vesting of water resources in Crown under statute (Main Water Acts are state government regimes but note federal structure and emergence of Water Act 2007 C�th) Main frameworks for allocation of water are statutory (includes consumptive, environmental water and cultural licences - NSW) Common law (riparian rights are residual) Note statutory saving provisions for domestic and stock uses Many other areas impinge on water regulation eg planning law (EIA), heritage protection, environmental protection and brooder indigenous governance regimes.

6. Australian Water Law Reform 3 major aspects to water law reforms 1994 with CoAG reforms: Continued through National Water Initiative 2004. Legal separation of land and water entitlements � introduction of water �share�, use licences, delivery charges as part of unbundling Progressive articulation of legally enforceable environmental water reserves Market instruments � property in water and trade. Structural change � highest and best value use Regulation/ restrictions on trading for competition controls, environmental (and cultural?) reasons NWI was extended in focus and has become the main driver for water law reform in recent years. Significant driver for water law reform at state and territory level especially where C�th incentive payments are linked to state�s meeting water law reform obligations Water quality issues important but note receiving central attention emerging focus on urban areas � important distributional shifts occurring bwn urban and rural areas as water security seen as an imperative for cities to move further afield in sourcing water; likely to exacerbate existing degradation and water pressures in rural areas with particular consequences for indigenous peoples rights to water especially where cultural water typically has been regarded as of �lower� security than settler consumptive uses. NWI was extended in focus and has become the main driver for water law reform in recent years. Significant driver for water law reform at state and territory level especially where C�th incentive payments are linked to state�s meeting water law reform obligations Water quality issues important but note receiving central attention emerging focus on urban areas � important distributional shifts occurring bwn urban and rural areas as water security seen as an imperative for cities to move further afield in sourcing water; likely to exacerbate existing degradation and water pressures in rural areas with particular consequences for indigenous peoples rights to water especially where cultural water typically has been regarded as of �lower� security than settler consumptive uses.

7. Indigenous Interests recognised under National Water Initiative Recognises special character Indigenous relationship with water. Agreement that water access entitlements and planning frameworks recognise indigenous needs. Indigenous access to be facilitated through: Indigenous representation in water planning Incorporate indigenous values and strategies for implementation Take account of the possible existence of native title rights to water Potentially allocate water to native title holders Account for water allocated to native title holders for traditional purposes Note CoAG is an intergovernmental institution; agreements are not legally binding; Many of these provisions are �aspirational�. Commentators' such as Jackson have noted the difficulties in articulating discrete obligations of governments ie what level of indigenous representation? What doe sit mean to �take account� of native title rights? Nonetheless it has been a significant driver for water law reform especially where C�th incentive payments are linked to state meeting water law reform obligations. Other NWI provisions also relevant water plans are to provide for a statutory basis for achieving environmental and other public benefit outcomes. Schedule E guidance for preparation of water plans including req. to take into account �indigenous and cultural values�. Note CoAG is an intergovernmental institution; agreements are not legally binding; Many of these provisions are �aspirational�. Commentators' such as Jackson have noted the difficulties in articulating discrete obligations of governments ie what level of indigenous representation? What doe sit mean to �take account� of native title rights? Nonetheless it has been a significant driver for water law reform especially where C�th incentive payments are linked to state meeting water law reform obligations. Other NWI provisions also relevant water plans are to provide for a statutory basis for achieving environmental and other public benefit outcomes. Schedule E guidance for preparation of water plans including req. to take into account �indigenous and cultural values�.

8. Water Planning Water law reform driver for long-term sustainable water use Instruments vary across jurisdictions but principal instrument is a water plan (or water sharing plan) Central idea � as implemented to various degrees in water legislation assess the state of water resource; determine ecological �base levels� ie set �cap� then determine water allocations to various interests allow trade in water entitlements as �limited� new entitlements with varying capacity to modify or reallocate water �allocations� by governments

9. Water Act 2007 C�th Widespread and increasingly severe ecological crisis in MD Basin Inter-jurisdictional conflict and overlapping management; upstream/ downstream problems Water trading occurring over some 20 years but did not address serious over-allocation Water Act � seeks to address over-allocation by setting sustainable diversion limit (current cap acknowledged as at unsustainable levels). Water Planning � central mechanism to achieve these objectives Howard Govt � Water Security Plan then Water Act Water planning -The Plan is the central mechanism for �the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception�. Note importance of interception uses as an emerging issue as more and more of the �water cycle� is subsumed under regulation; impacts for indigenous understandings but also access and use. Howard Govt � Water Security Plan then Water Act Water planning -The Plan is the central mechanism for �the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception�. Note importance of interception uses as an emerging issue as more and more of the �water cycle� is subsumed under regulation; impacts for indigenous understandings but also access and use.

10. Water Act: Key Features Implement basin-wide plan by 2011 Section 19: �The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area.� Indigenous Representation provided for under Water Act 2007. Acknowledged difficulties of effectively incorporating indigenous cultural values in NRM (water management) and building capacity. The federal Water Act is the culmination of a long series of legislative and policy instruments designed to implement a cap on further levels of extraction of water from the Basin. Much scientific research has been directed to determining ecological baselines required to support healthy rivers.[1] Against this backdrop, the 2007 Act represents the most comprehensive legal and institutional structure to date, with broad powers to legislate for water planning across the Basin. Section 19 of the Act provides: The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area. An Authority (newly established under the Act) is to prepare the Basin Plan. The plan once in effect, regulates entitlements to consumptive use of water, and sets the framework for water trading. The Plan is the central planning and allocation mechanism, for �the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception activities)�.[2] Nested under the Basin wide plan are the water resource plans for given water resource plan areas, located generally within the States. There is also an environmental watering plan sitting under the overarching plan as well as provisions for a commonwealth environmental water holder the legal entity that holds the water purchased by the Cth govt to address serious deficiencies in env water.  Importance of Indigenous associations such as MLDRIN in this regard. [1] Anita Foerster, �Victoria�s new �Environmental Water Reserve:� what�s in a name? (2007) 11 Aust. J. of Natural Resources Law and Policy 145. [2] Water Act 2007 (Cth), s 3(b).The federal Water Act is the culmination of a long series of legislative and policy instruments designed to implement a cap on further levels of extraction of water from the Basin. Much scientific research has been directed to determining ecological baselines required to support healthy rivers.[1] Against this backdrop, the 2007 Act represents the most comprehensive legal and institutional structure to date, with broad powers to legislate for water planning across the Basin. Section 19 of the Act provides: The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area. An Authority (newly established under the Act) is to prepare the Basin Plan. The plan once in effect, regulates entitlements to consumptive use of water, and sets the framework for water trading. The Plan is the central planning and allocation mechanism, for �the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception activities)�.[2] Nested under the Basin wide plan are the water resource plans for given water resource plan areas, located generally within the States. There is also an environmental watering plan sitting under the overarching plan as well as provisions for a commonwealth environmental water holder the legal entity that holds the water purchased by the Cth govt to address serious deficiencies in env water. Importance of Indigenous associations such as MLDRIN in this regard. [1] Anita Foerster, �Victoria�s new �Environmental Water Reserve:� what�s in a name? (2007) 11 Aust. J. of Natural Resources Law and Policy 145. [2] Water Act 2007 (Cth), s 3(b).

11. Indigenous Rights to Water Cultural uses/ Cultural flows at discretion of Aboriginal group? Note typical view by authorities that cultural water is of a non-proprietary nature. Should indigenous interest be subsumed under environmental allocations? NWI � some water allocations eg licences to Aboriginal groups under Water Management Act 2004 Native title allocations?? Should these be allocated via water legislation such as Water Act 2007? Engages broader question of the relationship water legislation and Native Title Cultural uses/ Cultural flows (at discretion of Aboriginal group rather than conceptualised re customary uses?) Note typical view by authorities that cultural water is of a usufructary nature Arguably this is seen as consistent with the view that cultural uses are only ever traditional uses; frozen rights concept. NSW water legislation which arguably = best practice treats indigenous water rights as comparable to basic landholder rights ie the typical domestic and stock uses. Arguably, such rights would already be protected for native title holders by s 211 NTA. A matter I will return to shortly. How to quantify and effectively integrate holistic, cultural values into water planning? (Technical difficulties are not insurmountable) Cultural uses/ Cultural flows (at discretion of Aboriginal group rather than conceptualised re customary uses?) Note typical view by authorities that cultural water is of a usufructary nature Arguably this is seen as consistent with the view that cultural uses are only ever traditional uses; frozen rights concept. NSW water legislation which arguably = best practice treats indigenous water rights as comparable to basic landholder rights ie the typical domestic and stock uses. Arguably, such rights would already be protected for native title holders by s 211 NTA. A matter I will return to shortly. How to quantify and effectively integrate holistic, cultural values into water planning? (Technical difficulties are not insurmountable)

12. Legal Models for Indigenous Rights to Water Potentially: two major ways of conceptualising legal frameworks One through inclusion of indigenous interests within the statutory water law frameworks ie a cultural allocation of water within a scheme designate as a �neo-liberal� market approach Second look to existing rights-based regimes for land claim In Australia, two main areas are Native Title and Statutory land rights schemes eg Aboriginal Land Rights (Northern Territory) Act 1976. Indigenous Rights to Water Typically indigenous rights to water are framed under western laws as of a usufructary character, rather than as holistic cultural and physical environments or even as commercially viable volumes. Two major forms � one as a component of land rights eg under Land Rights Legislation, eg. Aboriginal land Rights (NT) Cct 1976 and Native Title [1] See Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (2004), 33. [2] O Mazel Griffith Law review ( forthcoming) [3] Sue Jackson, (CSIRO Sustainable Ecosystems), 2006, Recognising and protecting Indigenous values in water resource management A report from a workshop held at CSIRO in Darwin, NT, 5-6 April 2006, CSIRO, Northern Land Council, Australian Government Land & Water Australia. Potentially: two major ways of conceptualising legal frameworks One which has just been covered; ie inclusion of indigenous interests within the statutory water law frameworks ie a cultural allocation of water within a scheme that allocated �entitlements to water�, allows trade but might place restrictions eg cultural water cannot be traded ( follows model of inalienable rights typical in legal constructions of Indig. rights ie sui generis Second look to existing rights-based regimes for land claim In Australia two main areas are Native Title and Statutory land rights schemes eg Aboriginal Land Rights (Northern Territory) Act 1976 Note also that other regimes such as cultural heritage protection and environmental protection legislation such as the EPBC Act in Australia also have a bearing by �indirectly� allowing protection of indigenous cultural values in water and allowing for participation frameworks. Indigenous Rights to Water Typically indigenous rights to water are framed under western laws as of a usufructary character, rather than as holistic cultural and physical environments or even as commercially viable volumes. Two major forms � one as a component of land rights eg under Land Rights Legislation, eg. Aboriginal land Rights (NT) Cct 1976 and Native Title

13. Mabo: Nature of native title � Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional practices observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.� Mabo v Qld [No 2] (1992) 175 CLR 1, 60 Brennan J. Clear that common law recognises �native title to water�; typically as a concomitant of land relationship. Arguably could have freestanding native title right to water. Now a classic statement of what native title is in Australia. Native Title Mabo v. Queensland [No 2] is generally regarded as a pivotal point in the legal relationship between aboriginal people and the Australian settler society and its institutions. It constituted legal acknowledgment of pre-existing aboriginal occupation of land (and subsequently waters) through the recognition of native title. Cases post-Mabo have configured Native Title as a bundle of rights, including various �rights to water which in most instances has increased the vulnerability of NT rights to extinguishment by inconsistent acts of governments.[1] PPT - � Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional practices observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.� Mabo v Qld [No 2] (1992) 175 CLR 1, 60 Brennan J Generally, it is accepted that what is recognised as native title will comprise rights to water. This was confirmed by the subsequent Native Title Act 1993. [1] See J Ruru�s view that by contrast NZ still relies on the clear and plain intention test� Much of the discussion in the later cases is about what this means.Now a classic statement of what native title is in Australia. Native Title Mabo v. Queensland [No 2] is generally regarded as a pivotal point in the legal relationship between aboriginal people and the Australian settler society and its institutions. It constituted legal acknowledgment of pre-existing aboriginal occupation of land (and subsequently waters) through the recognition of native title. Cases post-Mabo have configured Native Title as a bundle of rights, including various �rights to water which in most instances has increased the vulnerability of NT rights to extinguishment by inconsistent acts of governments.[1] PPT - � Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional practices observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.� Mabo v Qld [No 2] (1992) 175 CLR 1, 60 Brennan J Generally, it is accepted that what is recognised as native title will comprise rights to water. This was confirmed by the subsequent Native Title Act 1993.

14. Native Title Claims Determination of native title is made under the Native Title Act 1993 C�th A claimant must show that: They hold native title as defined by s223; and The native title has not been extinguished. Of particular relevance is the �Future Acts� regime See Indigenous Land Use Agreements provisions under Future Acts See also s 24 HA regarding Future Acts and water The application is heard in the Federal Court. The application is heard in the Federal Court.

15. Section 211 Native Title Act 1993 s 211 NTA � preserves Aboriginal customary uses such as hunting, fishing and gathering; general rights but clear it would take effect in relation to water. Yanner v Eaton - s211 as a Commonwealth law (s 109 Constitution) takes priority over state regulatory regimes � arguably would include water regulation. Issue as to what aspects of water regulation would be covered. (at common law see eg. Mason v Tritton) (at common law see eg. Mason v Tritton)

16. S 223 Native Title Act 1993 (Cth) The expression native title means - the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and ( b ) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Relationship between common law and Native Title Act only law and custom recognised by common law forms part of native title: s223(1)(c) "The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?�. The Commonwealth v Yarmirr (2001) 184 ALR 113 at 122 extends native title to waters: s223 waters defined : s253 and see Yarmirr Relationship between common law and Native Title Act only law and custom recognised by common law forms part of native title: s223(1)(c) "The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?�. The Commonwealth v Yarmirr (2001) 184 ALR 113 at 122 extends native title to waters: s223 waters defined : s253 and see Yarmirr

17. Native Title Claims: Issues for Water Management Members of the Yorta-Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. Need to establish ongoing connection to land and waters since pre-sovereign times. Stiff evidentiary burden to prove connection. What is the nature of rights if recognised? Bundle of rights formulation: typically but not necessarily found to be non-exclusive and non-commercial. Comparisons with offshore Native Title? Note also compensation is payable s 24 HA (5) NTA. Note also Future Acts relating to an offshore place s 24 NA; see also Yarmirr and Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 Re statutory regime see Barriers to Claims The question of maintenance of customary connection with waters since pre-sovereign times as a component of s 223 was emphasised by the High Court in Yorta-Yorta, which as part of the claimed area included the areas along the Murray river bordering NSW and Victoria. The Yorta-Yorta peoples under a very stiff evidentiary burden failed to establish such connection and were unsuccessful. Subsequently, Yorta-Yorta peoples negotiated a co-management agreement with the Victorian state government giving them significant water management responsibilities particularly for the ecologically sensitive Barmah forest area. Agreement making has emerged as an important avenue with respect to the Indigenous Land use Agreement provisions of the Future Acts regime under the NTA with significant potential to incorporate water access and use rights. Not construed to form under-pininning title as in Canada Note also compensation is payable s 24 HA (5) NTA. Note also Future Acts relating to an offshore place s 24 NA; see also Yarmirr and Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 Re statutory regime see Barriers to Claims The question of maintenance of customary connection with waters since pre-sovereign times as a component of s 223 was emphasised by the High Court in Yorta-Yorta, which as part of the claimed area included the areas along the Murray river bordering NSW and Victoria. The Yorta-Yorta peoples under a very stiff evidentiary burden failed to establish such connection and were unsuccessful. Subsequently, Yorta-Yorta peoples negotiated a co-management agreement with the Victorian state government giving them significant water management responsibilities particularly for the ecologically sensitive Barmah forest area. Agreement making has emerged as an important avenue with respect to the Indigenous Land use Agreement provisions of the Future Acts regime under the NTA with significant potential to incorporate water access and use rights. Not construed to form under-pininning title as in Canada

18. Water Planning as a Future Act? S 24 HA Native Title Act 1993 Part of �Future Acts� regime under the NTA- Applies to certain �valid� legislative acts of govt. or grants of leases and other settler �rights� �relating to the management or regulation of water�. Non-extinguishment principle s 24 HA (4)

19. Agreement-making ILUAS re Waters under NTA ILUAs are used by government and third parties to obtain permission to operate on land and water subject to native title. Co-management agreements eg Yorta-Yorta; also Indigenous Protected Areas State-wide agreements, such as South Australia. 101 agreements on ATNS database identified as relating to water, marine, fishing or aquaculture in Australia. Rights to Water- The bulk of this category (34 agreements) is made up by consent determinations under the Native Title Act (1993). ILUAs - Evenly split (13:13) in terms of how many focused exclusively on water issues and how many did not. The ILUAs dealt with a range of water subjects . Rights to Water- The bulk of this category (34 agreements) is made up by consent determinations under the Native Title Act (1993). which usually adopt a �land and waters� description of rights. In these cases, water is just one aspect of the agreement.ILUAs - Evenly split (13:13) in terms of how many focused exclusively on water issues and how many did not. The ILUAs dealt with a range of water subjects . Rights to Water- The bulk of this category (34 agreements) is made up by consent determinations under the Native Title Act (1993). which usually adopt a �land and waters� description of rights. In these cases, water is just one aspect of the agreement.

20. Statutory Land Rights Typically rights to water will form part of rights associated with the tenure conferred under statute. Aboriginal Land Rights (Northern Territory) Act 1976 granted significant controls over access and use to Traditional Owners (grant of fee simple) Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29 Blue Mud Bay case Issue � aboriginal land extending to offshore; does it confer rights to exclude people fishing in inter-tidal zone. Court held � Fisheries Act ( NT) does not confer a power to authorise persons to enter and take fish & aquatic resources from areas of Aboriginal land (originally made under grant). There has been c attention to the Blue Mud bay case but need to recognise that it relates to the second major type of land rights as a statutory land rights regime. Any Exclusive use of the offshore here is with respect to the tenure held under the Aboriginal land Rights Act not Native title. GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) ("the Fisheries Act"). That issue arises in litigation the origins of which can be traced to Aboriginal traditional owners of parts of Blue Mud Bay in northeast Arnhem Land wishing to determine their rights to exclude fishermen and others from waters in that area. Aboriginal Land Rights (Northern Territory) Act 1976 granted significant controls over access and use to Traditional Owners (note recent �intervention� amendments) but equivalent to �fee simple� rights and typically fee simple confers rights to waters Central issue -1. GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) ("the Fisheries Act"). Sections�10 and 11 of the Fisheries Act (NT) do not confer on the Director of Fisheries (NT) a power to grant a licence under that Act which licence would, without more, authorise or permit the holder to enter and take fish or aquatic life from areas within the boundary lines described in the Arnhem Land (Mainland) Grant and the Arnhem Land (Islands) Grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Presumably would have application to similar aboriginal lands made under deeds of grant in onshore places. Aboriginals - Land rights - Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") - Grants of "Estate in Fee Simple" extending to low water mark � 6. The Land Rights Act refers[5] to land the subject of grants, like the Mainland Grant and the Islands Grant, as "Aboriginal land". Section 70(1) of the Land Rights Act provides that "[a] person shall not enter or remain on Aboriginal land" and prescribes a penalty for doing so. The general prohibition in s 70(1) is qualified in several respects by other provisions of the Land Rights Act and it will be necessary to describe and examine those qualifications in more detail. Immediately, however, it is sufficient to notice that in proceedings for an offence against s 70(1) it is a defence[6] if the person enters or remains on the land "in performing functions under [the Land Rights] Act or otherwise in accordance with [the Land Rights] Act or a law of the Northern Territory". One law of the Northern Territory relevant to s 70(1) and the defence for which s 70(2A) provides is the Aboriginal Land Act (NT) ("the Aboriginal Land Act"). Under the Aboriginal Land Act[7] the relevant Land Council may grant permission to enter and remain on Aboriginal land. Power to enact such a law was given to the Legislative Assembly of the Northern Territory by s 73(1) of the Land Rights Act[8]. 7. This appeal is brought by the Northern Territory and the Director of Fisheries for the Northern Territory against orders of the Full Court of the Federal Court of Australia. There has been c attention to the Blue Mud bay case but need to recognise that it relates to the second major type of land rights as a statutory land rights regime. Any Exclusive use of the offshore here is with respect to the tenure held under the Aboriginal land Rights Act not Native title. GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) ("the Fisheries Act"). That issue arises in litigation the origins of which can be traced to Aboriginal traditional owners of parts of Blue Mud Bay in northeast Arnhem Land wishing to determine their rights to exclude fishermen and others from waters in that area. Aboriginal Land Rights (Northern Territory) Act 1976 granted significant controls over access and use to Traditional Owners (note recent �intervention� amendments) but equivalent to �fee simple� rights and typically fee simple confers rights to waters Central issue -1. GLEESON CJ, GUMMOW, HAYNE AND CRENNAN JJ. The central issue arising in this appeal is whether a grant in fee simple, made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), confers rights to exclude from tidal waters within the boundaries of the grant persons who wish to take fish or aquatic life in those waters, including persons holding a licence under the Fisheries Act (NT) ("the Fisheries Act"). Sections�10 and 11 of the Fisheries Act (NT) do not confer on the Director of Fisheries (NT) a power to grant a licence under that Act which licence would, without more, authorise or permit the holder to enter and take fish or aquatic life from areas within the boundary lines described in the Arnhem Land (Mainland) Grant and the Arnhem Land (Islands) Grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Presumably would have application to similar aboriginal lands made under deeds of grant in onshore places. Aboriginals - Land rights - Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") - Grants of "Estate in Fee Simple" extending to low water mark � 6. The Land Rights Act refers[5] to land the subject of grants, like the Mainland Grant and the Islands Grant, as "Aboriginal land". Section 70(1) of the Land Rights Act provides that "[a] person shall not enter or remain on Aboriginal land" and prescribes a penalty for doing so. The general prohibition in s 70(1) is qualified in several respects by other provisions of the Land Rights Act and it will be necessary to describe and examine those qualifications in more detail. Immediately, however, it is sufficient to notice that in proceedings for an offence against s 70(1) it is a defence[6] if the person enters or remains on the land "in performing functions under [the Land Rights] Act or otherwise in accordance with [the Land Rights] Act or a law of the Northern Territory". One law of the Northern Territory relevant to s 70(1) and the defence for which s 70(2A) provides is the Aboriginal Land Act (NT) ("the Aboriginal Land Act"). Under the Aboriginal Land Act[7] the relevant Land Council may grant permission to enter and remain on Aboriginal land. Power to enact such a law was given to the Legislative Assembly of the Northern Territory by s 73(1) of the Land Rights Act[8]. 7. This appeal is brought by the Northern Territory and the Director of Fisheries for the Northern Territory against orders of the Full Court of the Federal Court of Australia.

21. Gunditjmara Peoples Native Title Determination Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Process is part of Victorian �land justice� framework Decision of North J relating to the Mt Eccles National Park and associated areas such as Lake Condah. It was agreed that non-exclusive native title rights exist over 133,000 hectares of vacant crown land, national parks, reserves, rivers, creeks and sea north-west of Warrnambool Victoria. As a consequence, native title also has been extinguished over 7,600 hectares of the claim area. On 30 August 1996, a native title application was lodged for determination on behalf of the Gunditjmara people. A second application was filed covering areas outside the boundaries of the initial application on 9 June 2006. The application covered 14,000 hectares of crown land and waters including state forests, national parks, recreational reserves, river frontages and coastal foreshores. 170 different respondents became party to the proceedings. These included 'not only state and Commonwealth Government interests but also mining, farming, local government, fishing, beekeeping and recreational land used interests' (North J, Reasons for Judgment, para 2, [2007] FCA 474). On 30 August 1996, a native title application was lodged for determination on behalf of the Gunditjmara people. A second application was filed covering areas outside the boundaries of the initial application on 9 June 2006. The application covered 14,000 hectares of crown land and waters including state forests, national parks, recreational reserves, river frontages and coastal foreshores.

22. Nature and Extent of Native Title Rights The native title rights and interests include: (a) entering and remaining on the land and waters; (b) camping on the land and waters landward of the high water mark of the sea; (c) the use and enjoyment of the land and waters; (d) right to take the resources of the land and waters; and (e) right to protect places and areas of importance on the land and waters. (Determination, para 5) The Determination states that insofar as the native title rights and interests may provide a right to take water from waterways, that right is limited to domestic and ordinary use. (Determination, para 6)

23. Non Exclusive Rights to Water In light of the non-exclusive nature of Gunditjmara title, the native title rights and interests do not confer possession, occupation, use and enjoyment of the land and waters on the native title holders to the exclusion of all others. (Determination, para 8) There is no native title in the Native Title Area in or in relation to: groundwater as defined in the Water Act 1989 (Vic). (Determination , para 3) Native title co-exists with other interests but does not have priority (inconsistency of the incidents test) -(Determination , para 11) There is no native title in the Native Title Area in or in relation to: (a) minerals as defined in the Mineral Resources Development Act 1990 (Vic), as they are owned by the Crown; (b) petroleum as defined in the Petroleum Act 1998 (Vic); and (c) groundwater as defined in the Water Act 1989 (Vic). (Determination , para 3) The relationship between the native title rights and interests and the other interests is that: 'where and to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, (i) the native title rights and interests continue to exist in their entirety; but (ii) the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests' (Determination, para 11). There is no native title in the Native Title Area in or in relation to: (a) minerals as defined in the Mineral Resources Development Act 1990 (Vic), as they are owned by the Crown; (b) petroleum as defined in the Petroleum Act 1998 (Vic); and (c) groundwater as defined in the Water Act 1989 (Vic). (Determination , para 3) The relationship between the native title rights and interests and the other interests is that: 'where and to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, (i) the native title rights and interests continue to exist in their entirety; but (ii) the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests' (Determination, para 11).

24. Typically indigenous rights to water are framed under western laws as of a usufructary character, rather than as holistic cultural and physical environments, or even as commercially viable extractive volumes. �The dichotomy of difference which lies at the heart of colonialism and settler ideology has prevailed in Australia throughout the rights-based agenda and into the current narrative of neo-liberal models of economic development. It has with the use of the law, entrenched indigenous people�s continued marginalisation.� It is forums such as these that can start to address that marginalisation in an effective way. It is forums such as these that can start to address that marginalisation in an effective way.