By Melanie Durette*
This article compares Indigenous legal rights to water across four countries: the United States, Canada, New Zealand and Australia. Through this comparison, it identifies gaps in how the legal system in Australia accounts for the range of interests that Indigenous people have in water – from customary through to commercial. The law in relation to three main areas is considered: native title rights, commercial rights, and management rights. This article discusses how, in each of these countries, Indigenous water rights that relate to native title have been limited to rights that are customary in nature. The article further looks at how this narrow conceptualisation restricts the content and scope of Indigenous water rights, and effectively limits not only the ability of Indigenous people to develop resources for economic purposes but also to manage water in such a way that exercises traditional responsibilities and provides for future generations. A comparison of Indigenous legal rights to water in Australia vis-à-vis other countries nations identifies how the Australian government can better account for the full spectrum of water interests held by Indigenous people across the country.
The full article can be accessed here: “A comparative approach to Indigenous legal rights to freshwater: Key lessons for Australia from the United States, Canada and New Zealand” (2010) 27 EPLJ 296.
* Lawyer, Synexe Consulting.