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ABSTRACT
Water management in Australia’s Murray-Darling Basin is undergoing a highly-contested shift from single use management for irrigation, to multiple use management for irrigation and environmental flows. Despite a requirement to ‘take account’ of Indigenous values, multiple use management does not yet include cultural flows – water flows for Aboriginal groups to maintain Indigenous cultural values. Within the economics literature, cultural values are treated as a passive ‘use’ of place for spiritual or cultural activities, with cultural flows framed as flows of water delivered to particular sites for cultural ‘uses’. Aboriginal groups, however, argue for cultural flows to be defined in terms of water entitlements – a property right to water. Property rights have evolved within a specific historic and cultural context, and reflect a Western ontology that is very different to Aboriginal ontologies. This article explores whether a property rights construct might be compatible with Aboriginal ontologies, and whether water entitlements could deliver cultural benefits in ways hoped for by Aboriginal peoples. We find that cultural flows need to extend beyond rights to flows of water to encompass a broader bundle of rights including management and governance rights, if Aboriginal groups are to obtain beneficial cultural outcomes from those flows.
Acknowledgements
The authors would like to sincerely thank Jason Wilson and Ted Fields Jr for bringing this topic to our attention. We are deeply grateful to Jason and Ted, as well as Ricky Fields, Brenda McBride, Rhonda Ashby and George Fernandez of the Euhlaroi; Danielle Flakelar, Tom Carney and Shirley Stroud from the Wayilwan (Weilwan); and Fred Hooper from the Murrawarri for their generosity in spending so much time sharing their cultural knowledge.
Comments on earlier drafts of the paper by Neil Byron; Oscar Cacho and David Hadley; the handling editor and anonymous reviewers for this journal; and participants at the 16th Biennial Conference of the International Association for the Study of the Commons, Utrecht, Netherlands, 10–14 July 2017 are gratefully acknowledged. All remaining errors and omissions remain the responsibility of the authors.
Financial support for the lead author was received from the UNE Strategic Directions Scholarship, and the Keith & Dorothy Mackay Postgraduate Travelling Scholarship.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
1 Whether water is consumptive or non-consumptive is an issue of water use and whether that use is extractive (requiring diversion from the water course) or non-extractive (used in-stream). This is a separate issue to that of the nature of rights or entitlements by which water is held. Currently, environmental water can be either ‘planned’ (that is, regulated but unlicensed) or ‘held’ (that is, allocated to users through entitlements or other forms of licensing).
2 Language forms the boundary between different groups. Many but not all language groups comprise several clans, and these clans may speak dialects or closely related languages. A colloquial term ‘mob’ is used to refer to either clans or language groups.
3 National Cultural Flows Research Project 2021 (www.culturalflows.com).
4 NSW is the only state that has made formal provision for Aboriginal participation in water planning (NWC Citation2014) or to have provided water allocations for native title. The outcomes from Aboriginal water allocations have been limited (Duff, Delfau and Durette Citation2010; Jackson and Langton Citation2012). The allocation of water to native title holders has also been negligible, and determined on the basis of a domestic household water requirement rather than the amount that might appropriately be required to satisfy a native title or cultural requirement (Tan and Jackson Citation2013).
5 Also known as Aranda people.
6 Different parts of the Basin also have different eco-hydrologic characteristics, making customary practices location- and culture-specific. The purpose of this article is to provide some general insights into the use of a property rights framework rather than specific design details for water entitlements, which would need to take specific location and cultural differences into account.
7 Language groups in eastern Australia tend to be matrilineal, meaning that primary rights to an estate is inherited from the mother. Inland or desert language groups are more likely to be patrilineal, with primary rights inherited from the father. Clan totems, however, are passed on according to a complex set of rules (Parker Citation1905; Ridley Citation1873; Bellos Citation2018).
8 Keen (Citation2004) noted that clans have also been referred to as country groups, local descent groups, and estate groups. Aboriginal peoples in all seven regions that he studied across the continent were found to be organised by way of some sort of clan, or country group, structure.
9 Williams (Citation1986) also describes the practice amongst the Yolngu people of Arnhem Land of ‘lending’ and ‘giving’ the rights to parts of estates to other clan members to ‘look after’ (p. 78).
10 The term ‘resource’ infers a utilitarian value in which the value of a thing derives from its transactional value to people. For Aboriginal people, things are not solely resources – their value is not solely by virtue of their utility to people, they also have their own intrinsic or inherent value with their own agency and rights and obligations.
11 Referred to as Aranda people by Pink.
12 The incorporation of shared or communal values within a cultural ecosystem service (CES) framework is an important development (see for example, Irvine et al. Citation2016; Kenter et al. Citation2015), but does not address the issue being raised here, which is that a CES framework only captures the values of ecosystem services to people, not the inherent values that are central to Aboriginal ontologies.
13 Smith (Citation2011) notes that a legal bundle of rights framework could take the interaction between different rights into account, but that conventionally it does not. The legal framework thus conventionally treats each right in the bundle of rights as separate and distinct, such that they can be held by separate individuals or entities, and can be separately extinguished, without affecting the other rights.
14 In economics, the right to alienate is conventionally seen as a necessary component of an effective property right (Ostrom and Hess Citation2010). Schlager and Ostrom (Citation1992) found however, that alienation rights are not necessary for an effective property rights system to operate.
15 Note that water entitlements in the Basin are operational-level rights, and the ability to sell water entitlements is simply a right to transfer ownership of this operational-level right. Entitlement holders are authorized users and can transfer their operational-level rights, but do not have (and cannot transfer) collective-choice (management or exclusion) rights (see for example Schlager and Ostrom Citation1992: 252). Hence the right to sell water entitlements in the Basin is not an alienation right.
16 The design of entitlements is also important. Current entitlements have been specifically designed for extractive water use by individuals (mainly irrigators). It is not clear whether they lend themselves to communal or collective management by Aboriginal groups (or indeed, other groups) for predominantly instream or non-extractive uses. The issue of entitlement design is an important one, but is beyond the scope of this article. For example, see Mallawaarachchi et al. Citation2020.