I recently read an article about native title and water rights, which prompted me to do a little more investigation into how the two areas of law interact—particularly in Western Australia.
Native title is most often discussed in connection with access to land, mining tenements, heritage surveys and the right-to-negotiate process. However, native title is not confined to dry land. It can also include traditional rights and interests relating to rivers, springs, wetlands, groundwater, coastal waters and other water places.
For the resources industry, this is becoming increasingly relevant. Water is essential to exploration and mining, but obtaining a mining tenement does not necessarily provide all the rights required to search for, access or take water. Native title, water licensing, land access, Aboriginal heritage and environmental approvals may all need to be considered separately.
What native title rights over water can include
Section 223 of the Native Title Act 1993 defines native title as the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where those rights arise under traditional laws and customs, there is an ongoing connection with the land or waters, and the rights are recognised by Australian common law.
Depending on the traditional laws and customs of the particular group, native title rights relating to water may include rights to:
- access rivers, pools, springs, wetlands and coastal waters;
- travel through and camp near water;
- fish, hunt and gather aquatic resources;
- take water for personal, domestic or non-commercial communal purposes;
- conduct ceremonies and other cultural activities;
- protect culturally significant water places;
- care for Country and maintain the health of water systems; and
- maintain spiritual relationships with rivers, springs, groundwater systems and sea Country.
The exact nature of these rights is not the same in every native title determination. The wording of the relevant Federal Court determination is critical.
A determination providing a right to “access and take water for personal, domestic and non-commercial communal purposes” is not the same as a right to control the water resource, exclude other users or take water commercially.
This is an important distinction. Native title rights relating to water should not automatically be viewed as statutory water entitlements. At the same time, the absence of ownership of a particular volume of water does not mean that there are no native title rights capable of being affected by water-related activities.
Crown control and native title can coexist
In Western Australia, water is primarily regulated under the Rights in Water and Irrigation Act 1914, commonly referred to as the RIWI Act.
Section 5A of that Act provides that the right to the use, flow and control of water in a watercourse, wetland or underground water source is vested in the Crown, except where it has been allocated under the Act or another written law.
This gives the State the authority to regulate water resources and issue licences and permits. In many circumstances, a licence is required to take groundwater or surface water, while permits may also be required to construct bores or interfere with the bed and banks of a watercourse or wetland.
However, Crown control of water does not necessarily eliminate native title rights relating to the same water.
Section 212 of the Native Title Act allows Commonwealth, State and Territory governments to confirm existing Crown ownership of natural resources and existing Crown rights to use, control and regulate the flow of water. Significantly, the section also provides that this confirmation does not extinguish native title.
In practice, the two systems may coexist. The State controls and allocates statutory water entitlements, while native title holders may retain traditional rights to access, use and maintain cultural and spiritual relationships with the water.
The existence of native title does not necessarily prevent the State from issuing a water licence. Conversely, the granting of a water licence does not mean that native title rights have disappeared.
Water licences and the future-act process
A government decision to grant a licence, lease, permit or other authority to take or manage water may be a “future act” under the Native Title Act.
A future act is a proposed activity or government decision affecting land or waters that may affect native title rights and interests.
Section 24HA of the Native Title Act deals specifically with the management and regulation of:
- surface water;
- subterranean or groundwater;
- living aquatic resources; and
- access to, or taking of, water.
The section allows governments to make water-management laws and grant water licences, permits and authorities. Where the necessary process is followed, the act is valid and the non-extinguishment principle applies.
This means that native title is not permanently extinguished merely because a water licence has been granted. However, native title rights may have limited effect to the extent that their exercise is inconsistent with the authorised activity while it continues.
Before granting an authority covered by section 24HA, the person proposing to do the act must generally notify the relevant representative Aboriginal or Torres Strait Islander body, registered native title body corporate and registered native title claimants. Those parties must be given an opportunity to comment.
This is an important procedural right, but it is not generally the same as the full right-to-negotiate process that commonly applies to the grant of a mining lease.
Native title holders may also be entitled to compensation where a water-related future act affects their native title rights and interests. Whether compensation is payable, and how it would be calculated, depends on the particular act and its effect on the recognised native title rights.
Mining tenure does not provide an unlimited right to water
From a tenement-management perspective, one of the most important points is that holding a mining tenement does not necessarily give the holder an unrestricted right to search for or take groundwater.
A mining project may require several separate but related approvals, including:
- a mining tenement under the Mining Act 1978;
- a miscellaneous licence for searching for groundwater, taking water or constructing associated infrastructure;
- a groundwater licence under section 5C of the RIWI Act;
- approval to construct bores;
- permits to interfere with a watercourse, wetland, bed or bank;
- native title future-act compliance;
- land-access arrangements;
- Aboriginal heritage approvals or surveys; and
- environmental approvals.
The Department of Mines, Petroleum and Exploration advises that an application for a miscellaneous licence for the purpose of “search for groundwater” or “taking water” is processed under section 24HA of the Native Title Act. The relevant native title parties are notified and given an opportunity to comment on the proposed grant.
This makes it important to distinguish between the mining tenure, the authority to take water and the authority to access the land on which the water infrastructure will be located.
Receiving one approval does not necessarily mean that all the other approvals have been obtained.
The impact may extend well beyond the bore site
Another important issue is that the native title impact of taking groundwater should not necessarily be assessed only by looking at the physical location of the bore.
Groundwater systems do not follow tenement boundaries. The abstraction of groundwater at one location may cause drawdown or other changes some distance away.
Potential impacts may include:
- reduced flows to culturally significant springs;
- changes to permanent or semi-permanent waterholes;
- impacts on groundwater-dependent vegetation;
- reduced river baseflows;
- changes to wetlands;
- impacts on culturally significant plants and animals;
- reduced access to places used for traditional activities; and
- interference with the cultural or spiritual integrity of an interconnected water system.
A bore may be located outside a recognised heritage site or culturally important place but still affect that place through groundwater drawdown.
This is where hydrogeological assessment, native title, Aboriginal heritage and environmental regulation can converge. Looking only at the bore location may therefore give an incomplete picture of the project’s potential impact.
For mining proponents, it may be necessary to consider not just where the proposed infrastructure is located, but also the likely extent of the drawdown zone and whether springs, pools, wetlands or other culturally important water places fall within the area of potential influence.
Traditional activities and commercial water use
The distinction between traditional use and commercial use is also significant.
Section 211 of the Native Title Act provides protection for certain native title activities where another law would otherwise require a licence or permit. The provision applies principally to hunting, fishing, gathering and cultural or spiritual activities undertaken to satisfy personal, domestic or non-commercial communal needs.
However, section 211 should not be treated as providing a general exemption from Western Australian water-licensing requirements.
A recognised native title right to access and take water for personal, domestic or non-commercial communal purposes does not automatically include a right to extract large quantities of water for commercial agriculture, mining or sale.
The High Court’s decision in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia is relevant to this distinction. The Court found that legislation regulating how a native title resource-taking right could be exercised did not necessarily extinguish the underlying native title right merely because a commercial licence was required.
The decision demonstrates that there is a difference between the existence of an underlying native title right and the regulation of how that right may be exercised. Nevertheless, the outcome in any particular case will depend on the relevant legislation and the precise wording of the native title determination.
Agreements may provide a more practical framework
While the Native Title Act establishes minimum procedural requirements, agreements can provide a more comprehensive and practical framework for managing water-related issues.
An Indigenous Land Use Agreement, mining agreement or land-access agreement may include provisions dealing with:
- notification of proposed bores and water infrastructure;
- consultation about water abstraction;
- protection of significant springs, pools and wetlands;
- hydrogeological studies and monitoring;
- access to monitoring information;
- trigger levels and management responses;
- involvement of Traditional Owners in water monitoring;
- rehabilitation and decommissioning of bores;
- alternative water supplies where traditional access is affected; and
- compensation or other benefits.
These arrangements can be particularly useful where the effect of groundwater abstraction is uncertain or may develop over a long period.
Early engagement is likely to be more effective than waiting until the water licence or miscellaneous licence reaches the formal notification stage. By that time, the project design and proposed abstraction volumes may already be relatively advanced.
A practical compliance issue
Native title does not ordinarily give a native title group ownership of Western Australia’s groundwater or an automatic veto over a water-licence application. However, it can provide legally recognised rights to access, use and protect waters, together with procedural and potential compensation rights when government decisions affect those interests.
For anyone assessing a mining or exploration project, the key questions should include:
- Is the area covered by a registered native title claim or determination?
- What water-related rights are recognised or claimed?
- Who is the relevant prescribed body corporate or registered claimant?
- Is there an existing ILUA, mining agreement or access agreement?
- Does that agreement contain water-related provisions?
- What is the proposed abstraction volume?
- What is the likely groundwater drawdown area?
- Are culturally significant springs, pools, wetlands or waterholes potentially affected?
- Is section 24HA notification required?
- What separate RIWI Act licences and permits are required?
- Have heritage and environmental requirements also been considered?
My investigation confirmed that native title and water rights cannot be reduced to the simple question of who holds the water licence.
The State may control and allocate the water resource, but native title holders may still possess important rights relating to access, traditional use, cultural responsibility and the protection of water places. For mining and exploration projects, understanding that distinction early can reduce compliance risk and lead to better consultation, project design and water management.
