Hear Their Voices: Australia’s First Nations Women and the Legal Recognition of Their Rights to Water

ABSTRACT

This article aims to highlight the expertise of First Nations women in water management and use, and the necessity of having their voices heard in this space, as their voices have not received the attention or respect, yindyamarra, they deserve in Australian water law and policy. Before critically examining the articulation of a right to water in the international human rights framework as it applies to First Nations women, this article opens by introducing the nature and importance of First Nations women’s water rights. The article then turns to Australia, outlining the emergence of First Nations rights generally, before turning its attention to water rights. In that respect, Commonwealth law and policy is analysed, given that it is the nation-state with legal personality in international law. Two contrasting case studies follow, illustrating the importance and fragility of First Nations women’s water rights. The article concludes that international law evidences a deficit discourse, providing little basis for nation-states to recognise the holistic nature of water rights of First Nations women, and that Commonwealth law and policy, although showing promising signs, has yet to provide any meaningful scope for First Nations women to use and manage water according to First Nations law.

1. Introduction

On 10 December 2020, the Australian Human Rights Commission (AHRC) released an important report: Wiyi Yani U Thangani (Women’s Voices): Securing our Rights, Securing our Future Report.¹ Introducing the report, Bunuba woman June Oscar, the first woman appointed as Aboriginal and Torres Strait Islander Social Justice Commissioner, states that:

our women on the ground know what they are talking about, that they are leaders, survivors, teachers and healers. They carry with them a wealth of inherited, lived and learnt expertise … our women’s voices need to be elevated to the spaces of decision-making, because what they know matters in forming meaningful and effective policy and legislation.²

This article examines one aspect of this ‘inherited, lived and learnt expertise’, namely that of First Nations³ women’s water expertise, including governance and practice, and the rights that flow from that expertise. First Nations women’s water expertise, experiences and rights, this article’s driving interest, have received neither the attention nor respect, yindyamarra,⁴ deserved in Australian water legislation and policy. This lack of yindyamarra, as will be explained, flows not only from limited research into Indigenous water science, management and law but also a preference for male perspectives.

Unsurprisingly then, the role that international law, and in particular, international human rights law, has played in facilitating or impeding First Nations women’s rights and responsibilities in water governance and management has attracted little attention. One of the aims of this article is therefore to rectify that lack of attention, focussing on (i) how the international human right to water defines the right to water (ii) how this right to water is afforded to Indigenous women and (iii) whether this international understanding reflects women’s rights to water in the First Nations legal traditions extant before Australia’s existence. There are various reasons for this focus on international human rights law. First, Australia played a pivotal role in the establishment of the modern international human rights system.⁵ Michael Kirby, former justice of the High Court noted that:

Australians can be proud of the role that their political leaders and officials took in the establishment of the United Nations Organisation and the adoption sixty years ago, of the UDHR [Universal Declaration of Human Rights].⁶

Second, Australia has ratified numerous human rights treaties and has purported to implement them into Australian law.⁷ And finally, First Nations peoples in Australia are increasingly turning to international human rights law to uphold their rights and support their aspirations.⁸

As noted, some specific reasons for the lack of yindyamarra afforded to First Nations women and their rights to water will be presented later. However, evident in the documents pertaining to the international right to water is a deficit discourse woven into the content and intent of those materials. Identified in the context of Aboriginal and Torres Strait Islander peoples from Australia,⁹ deficit discourse is also identifiable in the language of the development of a right to water commonly used in terms of women. Deficit discourse is considered:

a way of thinking, evident in language, which has been used by the state in Australia since the commencement of colonisation, to control and oppress Aboriginal and Torres Strait Islander peoples, describing them as deficient and disempowered.¹⁰

As a discourse of power, the deficit discourse allows colonial law and policy to continue to dominate those of First Nations peoples, through perpetuating stereotypes of disadvantage and a lack of capacity.¹¹ Consequences of this discourse as applied to Indigenous peoples include disregarding their strengths and capacities, denying the role of structural racism in Indigenous disadvantage, and dismissing cultural differences in setting values and practices.¹² Deficit discourse also disguises the diversity in the knowledge, experiences and opinions of First Nations women in all matters, including water rights.

Less commonly discussed overtly in the context of policy and language is the use of deficit discourse regarding women and water, especially water management. Given this article’s starting point, that is, the recognition of First Nations women’s strengths, expertise and authority in all aspects of Indigenous water law, management and use, the pernicious influence of deficit discourse within the international human rights framework is starkly evident, and critical to address. Evidence of women’s water management expertise, particularly within the household, exist¹³ but is rarely recognised in water policy or legislation. The domestic work performed by women, of which water use and management is central, is rarely regarded as economic or culturally significant by those who hold political and legal power. That is, deficit discourse is used to justify excluding First Nations peoples and women from power.

This article opens by introducing the nature and importance of First Nations women’s rights to water before critically examining the articulation of a right to water in the international human rights framework. This examination builds on previous indications that the right to water is a narrow right,¹⁴ confined primarily to the provision of services for domestic use and contains no express right to participate in water governance or management processes and practices. It is evident that for a number of groups, including First Nations women, this limited right to water was constructed via a deficit discourse narrative. This section concludes by examining the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which stands alone in a sea of international documents as having potential to afford First Nations women with a set of rights to water that might approximate those held prior to colonisation, rights which they continue to hold under First Nations law and custom.

The article then considers how the international right to water is manifest for First Nations women in Australia. Whilst acknowledging that the states have primary responsibility to legislate for the management and use of water due to the distribution of legislative power between the Commonwealth and the States in the Australian Constitution, the focus in this article is on Commonwealth legislation because of the Commonwealth’s constitutional role in implementing international law into domestic legislation.¹⁵ Two contrasting case studies highlight the importance and fragility of First Nations women’s rights to water in settler-state legal frameworks. The article concludes by discussing the value of recognising First Nations women’s rights to water found within their own ontological and axiological frameworks, rather than those of the international framework, and supporting (re)claiming these richer, more complex rights to water.

2. First Nations Women’s Rights to Water

Long before the international debate about a ‘universal’ right to water, First Nations women held extensive and meaningful rights to water, covering law, governance, practice and more. These rights, and responsibilities, predate the current hegemonic settler-state legal system by millennia. An important aspect of many First Nations systems is their gender-conscious approach to the way things are done.¹⁶ Each gender has significant although different responsibilities across all aspects of society, including water law and governance. For example, Marshall describes Aboriginal women’s rights as ‘inherent and crucial … in Aboriginal laws, customs, practices’.¹⁷ Supporting Marshall’s description, in using these rights in a relational manner to fulfil custodial obligations, First Nations women’s authority, however understood in each First Nation, was respected, understood and unquestioned within their respective communities.¹⁸ It is this authority that gives meaning to women’s water rights in First Nations systems.

Although there is some early literature on gender relations in Aboriginal society in Australia,¹⁹ the gendered distribution of rights and responsibilities across all aspects of society became evident in the early 1980s, with the ‘landmark’ book by Diane Bell, Daughters of the Dreaming.²⁰ This book has been described as ‘crucial in asserting that Aboriginal women had important land-based traditions and were equally important as the men in maintaining the land’.²¹ Also influential was Deborah Bird Rose’s 1992 book, Dingo Makes Us Human,²² which reaffirmed ‘the centrality of women’s business to Aboriginal culture’.²³ Howitt and Suchet-Pearson, citing the Junction Waterhole and Hindmarsh Island matters that provide this article’s case studies, noted that:

[m]any of the critical disputes that have punctuated debate about Aboriginal Women's knowledge, roles and power have been associated with debates about water, water rights and the nature of water in Aboriginal cultures.²⁴

First Nations women have also been articulating their rights to water. For example, TallBear examines Indigenous women in North America’s use of their sovereign ways of knowing and doing to lead resistance against ongoing cultural and environmental colonisation.²⁵ In Canada, First Nations women participated in the Mother Earth Water Walks, the aim of which ‘was to raise awareness of the sacred connection between people, especially women, and the waters’.²⁶ In Australia, Marshall, although not focussing specifically on First Nations women, exposed the settler-state’s legal construction of a de facto policy of aqua nullius and some subsequent impacts of settler-state water law on the practice of Aboriginal water laws.²⁷ These authors, and others,²⁸ demonstrate that within their sovereign systems Indigenous women have wide-ranging rights to water, including influential roles and obligations in water science, law and governance and rights to source, treat and allocate water for domestic, cultural and agricultural purposes. First Nations women’s rights to water also include economic and other social rights. Unfortunately, for reasons including those raised in this article, there is limited literature about First Nations women’s rights, particularly in the Australian context that is the focus here.

It is appropriate that First Nations women’s water rights be given yindyamarra/respect for more than just their extensive nature. The importance of these rights flows from their sovereign nature, reflecting deep knowledge of place and well-developed relationships between people and other-than-human entities. In transactional ‘western’ terms, these, and other, sovereign rights allowed First Nation water science, legal and governance systems to support ‘triple bottom line’ outcomes superior to those of the settler-state systems which coined that term.

Importantly, First Nations women’s rights to water are active rights. That is, these rights need to be performed and their performance is consequential to people and place. The exercise of First Nations women’s rights to water can have meaningful impact on environmental conditions, for example knowing how to cool burn without damaging riparian zones or affecting stream water quality. First Nations women with the sovereign right to source and manage water are more active than passively receiving domestic water or sanitation services. First Nations women’s rights to water are also consequential, given the authority women can hold in areas of decision-making and law-enforcement and that women’s water expertise beyond the domestic sphere is also recognised. For these reasons, the rights to water that First Nations women can hold are critical to cultural survival, particularly in settler-states, and it is therefore necessary that they be protected in international frameworks and supported in nation-state laws.

3. Factors Prohibiting Awareness of First Nations Women’s Water Rights

The relative lack of awareness of long-held First Nations women’s rights to water perpetuates the limited understanding of their importance. This lack of awareness largely persists due to the obduracy of the deficit discourse. Beyond the generic impact of this discourse, two related factors have contributed to obscuring the importance of First Nations women’s rights to water. These factors, namely the largely historic preference for male voices and limited research articulating any aspect of First Nations women’s experiences, are outlined below.

3.1. Preference for Male Perspectives

Jacobs explains that that men’s business had often been ‘assumed to provide for the whole society’²⁹ noting that this could be explained by the fact that ‘male anthropologists either ignored the business of women or were denied access to it in accordance with the gender-specific restrictions on Aboriginal society’.³⁰ Deliberately ignoring the business of women represents a gender-blind practice.³¹ The matter of masculinist tendencies in Indigenous policy-making in Australia is revisited in the next section.

Fortunately, not all early anthropologists were male. Phyllis Kaberry, for example, in 1939 conducted the ‘first major anthropological study of Aboriginal women and their roles in sacred ritual’,³² thus providing an early glimpse into the gendered nature of Aboriginal society.

Regarding water specifically, Wirf et al noted in 2008 that Anmatyerr men’s knowledge of water sites relates to ceremonial sacred (and secret) information, whereas Anmatyerr women’s knowledge is wider in scope, encompassing ceremonial, physical and cultural use of sites which are ‘open’ sites (ie not restricted to women). Accordingly, if only men are consulted about development proposals, they are likely to focus on protecting the sacred sites, but not necessarily the cultural sites, many of which women are responsible for protecting.³³

3.2. Limited Australian Research

Very little research has occurred in more recent times in Australia focussing specifically on First Nations women’s rights to and knowledge of water, despite identification of the need to acknowledge the gendered nature of Indigenous knowledge of Country and natural resource management more generally.³⁴ However, there are an increasing number of First Nations women in Australia articulating their rights to water in a variety of other ways.³⁵ One of the aims of this article is to promote such voices and to encourage further research so that First Nations women can claim their rightful places in the water rights space.

4. International Law and the Development of First Nations Women’s Water Rights: A Confluence of Conventions, Declarations and Resolutions

The recognition of a universal human right to water in the international rights framework comes from the confluence of numerous conventions, declarations and resolutions. While an articulation of the notion of the human right to water emerged in 1977 at Mar del Plata in Argentina,³⁶ it is explicit in only three conventions, namely the Convention on the Elimination of all Forms of Discrimination Against Women 1979 (CEDAW),³⁷ the Convention on the Rights of the Child 1989 (CROC),³⁸ and the Convention on the Rights of Persons with Disabilities 2007 (CRPD).³⁹ Australia has ratified all three conventions. Further references to a right to water are found in the Kyoto Water Declaration and the United Nations Declaration on the Rights of Indigenous Peoples. This next section examines the nature of these references in terms of their application to First Nations women.

4.1. Conventions

In the CEDAW, the human right to water is expressed in article 14, where States agree to ‘take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families’. Specifically, clause 2(h) then notes women’s rights to ‘enjoy adequate living conditions, particularly in relation to … sanitation, electricity and water supply’. That is, this convention articulates a right to water supply for rural women but not, for example, water storage or treatment or water for cultural or economic purposes. Clause (b) of article 7 outlines a right to ‘participate in the formulation of government policy and the implementation thereof’ and clause 2(a) of article 14 notes women’s right to ‘participate in the elaboration and implementation of development planning at all levels’. With water as a critical area of planning for all levels of governments, article 14 would include women’s involvement in water planning and management. Indigenous women, however, are not specifically mentioned in this convention.⁴⁰

Article 24 of the CROC clearly expresses the right to clean drinking water, as part of children’s rights to ‘the highest attainable standard of health’ and health care.⁴¹ Clause 2(e) in the same article refers to the right to ‘environmental sanitation’. A right to water could be inferred from other sections of the CROC, including article 27’s call that States recognise a right ‘to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’. While this convention fails to specifically reference girls, significantly Article 30 outlines Indigenous children’s right ‘to enjoy his or her own culture’. This Article therefore offers a route for Indigenous children to learn about Indigenous water science, law and governance, including gender-based knowledge and custodial responsibilities.

Similar to the CEDAW and the CROC, the CRPD mentions a right to water only once, in Article 28, clause 2(a), and is limited to ‘clean water services’. While the term ‘clean water services’ would include access to sanitation as well as potable supply, it makes clear an expectation that people are passive recipients of water for specific, personal purposes rather than active participants in the gamut of water roles and practices. Women are specifically mentioned eight times,⁴² with the reference in Article 28 clause 2(b) reflecting a distinctly deficit discourse.⁴³ Indigenous peoples are only mentioned once, when the convention expresses concern about ‘multiple or aggravated forms of discrimination’.⁴⁴ That is, the CRPD frames Indigenous women as ‘deficient and disempowered’ ie, within a deficit discourse.

These three conventions, as international agreements to which nation-states become signatories, form the basis of the ‘universal’ right to water. Collectively they indicate that the right to water is essentially a right to the domestic water needs of potable supply and sanitation, with the subtext that those services are to be provided by other parties rather than a right to fulfil domestic water needs without institutional intervention. There is no evidence of rights to water, such as the right to water for economic or cultural purposes. Only the CEDAW refers to rights to developing law or policy or being engaged in governance and management. This right is expressed in generic terms and makes no specific mention of water, as indicated at the earlier references to Articles 7 and 14 of the CEDAW. While ‘women’ may have some right to participate in water planning and governance, sparse references to Indigenous women across these conventions makes this article’s authors dubious about the capacity of any universal right to water that the international framework formulates to adequately reflect those rights to water Indigenous women already hold in their own frameworks.

Beyond these conventions, a right to water has also been noted in international humanitarian law in the Geneva Convention.⁴⁵

4.2. Declarations and Resolutions

Various United Nations declarations and resolutions also contribute to the recognition of a human right to water in the international rights framework. While these declarations and resolutions are not legally binding at international law, they are a clear expression of what the United Nations regards as a human right to water. The most significant in that regard is the Declaration on the Human Right to Water and Sanitation, adopted by the United Nations General Assembly in 2010.⁴⁶ Other resolutions evidencing a right to water include:

• General Assembly Resolution 55/196 in December 2000, in which it proclaimed 2003 the International Year of Freshwater;⁴⁷

• General Assembly Resolution 58/217 (2003) proclaiming the International Decade for Action, Water for Life, 2005–2015;⁴⁸

• General Assembly Resolution 68/157 (2013) in which the human right to safe drinking water and sanitation was highlighted and reaffirmed;⁴⁹ and

• Resolution 71/222 (2016) in which the General Assembly declared the International Decade for Action on Water for Sustainable Development, 2018–2028.⁵⁰

This dossier of documents also includes the Committee on Economic, Social and Cultural Rights General Comment No 15 (2002) on the right to water.⁵¹ While this document includes a clear acknowledgement that water has meaning beyond domestic uses, it explicitly states ‘[n]evertheless, priority in the allocation of water must be given to the right of water for personal and domestic uses’.⁵² This statement highlights that those involved in crafting the international right to water framework were likely cognisant of how narrow a right they were crafting.⁵³

These resolutions and declarations do little to challenge or expand the narrow right to water arising from the CEDAW, CROC and CRPD. Often, they too frame First Nations women’s right to water within a deficit discourse.⁵⁴ The authors do not dispute First Nations women’s collective disadvantage and oppression, no less so in rights to water. Rather, in contrast to deficit discourses, we recognise that many of the disadvantages experienced by First Nations women, particularly those located in settler-states, are structural, an intrinsic outcome of the colonial project(s). Further, we recognise that First Nations women have skills and experiences, including those pertaining to their water rights, able to inform approaches to reduce the collective disadvantage.

More insidious than the (mis)representation of First Nations women courtesy of the deficit discourse or the narrow international right to water is that the water rights First Nations women hold in their own systems of science, law and governance are actively negated through the conception of a ‘universal’ right to water. Concepts such as universality greatly compromise First Nations women’s ability to learn, practice and transmit all knowledges and practices encompassing First Nations women’s rights to water.⁵⁵ In an uncompromised state, First Nations women’s water rights can be extensive and authoritative. Using these rights in a relational manner to fulfil custodial obligations to Country,⁵⁶ First Nations women’s approaches contrast starkly with the colonial-settler transactional approach to water rights,⁵⁷ and water science, and the legal and governance traditions of international law and rights more broadly. The purpose and nature of First Nations women’s water rights, including its relational practice, speaks to recognising the significance of these rights and demonstrating the yindyamarra/respect due.

One of the few express links between First Nations women and water rights is found in the Indigenous Peoples Kyoto Water Declaration, from the Third World Water Forum in Japan in 2003, which states: ‘[w]e resolve to maintain, strengthen and support Indigenous Peoples’ movements, struggles and campaigns on water and enhance the role of Indigenous elders, women and youth to protect water’.⁵⁸

This resolve in the Kyoto Water Declaration was a precursor to the rights outlined in the United Nations Declaration on the Rights of Indigenous People.

4.3. United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous People (UNDRIP)⁵⁹ articulates extensive First Nation rights, including access to land and water resources for a range of purposes, including but not limited to social and economic purposes.⁶⁰ It is notable that the English-speaking colonial settler-states of Canada, Australia, Aotearoa New Zealand and the United States of America initially voted against the UNDRIP, the only countries to do so.⁶¹ While all four nations have since expressed their support for the UNDRIP,⁶² Australia’s initial vote against the UNDRIP was based on the reference to ‘self-determination’,⁶³ despite the existence of article 46.⁶⁴ Further, endorsing the UNDRIP does not mean the UNDRIP’s content, or intent, is ultimately incorporated in nation-state legislation and policy. As with the other aspects of the international rights framework this article highlights, there is no direct focus on women and water in the UNDRIP.

UNDRIP has two articles specifically referencing water. Article 25 articulates the right of Indigenous peoples to ‘maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used … waters’ for future generations. Article 32 clause 2 directs the State to ‘consult and cooperate in good faith’ with Indigenous peoples to obtain free, informed and prior consent ‘particularly in connection with the development, utilization or exploitation of mineral, water or other resources’.

While there are only two direct references to water(s) in this declaration, there are 16 references to resources. In this context ‘resources’ is describing those aspects of the natural world that capitalism seeks to exploit. Water, in many forms, is included in this understanding of ‘resources’, as is evident from Article 32 clause 2. These 16 references include Article 26, clauses 1–3, which require states to recognise and protect Indigenous peoples’ rights to resources, and their control, use and development on ‘land traditionally owned, occupied or otherwise used or acquired’. The meaning of water as resource is far removed from Indigenous understandings of water, with many Indigenous peoples expressing relational,⁶⁵ rather than transactional beliefs about water intrinsic to the UNDRIP’s use of the term ‘resource’.

If the UNDRIP were to be fully implemented, ⁶⁶ First Nations women’s sovereign rights to water may be able to be expressed, fundamentally altering water science, law and management paradigms on which the international rights framework floats. Until then, Article 28’s ‘free, prior and informed consent’ requirement offers First Nations women some opportunity to agitate to (re)claim their water rights. Many First Nations groups in Australia and elsewhere have utilised the provisions of the UNDRIP⁶⁷ to support their claims for greater recognition and protection of their water rights.⁶⁸

The limited references to women in the UNDRIP present a deficit perspective akin to that embedded in the international rights framework identified above. For example, Article 21 about the State’s role asks that ‘particular attention shall be paid to … elders, women’. This is followed by Article 22 which calls for the State to take ‘measures, in conjunction with indigenous peoples’ to protect against violence and discrimination against women (and children). This framing of Indigenous women leaves little room to imagine them holding and wielding systemic rights of any kind, let alone the actual extent of water rights Indigenous women have had and continue to hold. In any event, for the rights contained within the UNDRIP to be enforceable, they would need to be enacted into domestic legislation.⁶⁹ In that respect, Canada is the first of the settler-states that initially failed to sign the Declaration to actively develop a process to align national laws with UNDRIP objectives,⁷⁰ potentially making First Nation claims via the UNDRIP more likely and effective.

4.4. The International Water Rights Framework, First Nation Women and Rights to Water

It seems apparent that the international rights framework does not express a broad universal human right to water. The combined effect of the conventions, declarations and resolutions discussed to this point clearly limits the human right to water to access clean drinking water and, presumably water-based, sanitation (despite water being unnecessary for effective sanitation services).⁷¹ This outcome is unsurprising, given the right to water is considered a ‘derived’ right, as ‘recalled’ in UN’s General Assembly Resolution on the human rights to safe drinking water and sanitation.⁷² Consequently, this framework does not recognise, for example, rights to source, store or treat water. The absence of rights to such water related activities keeps urban-based First Nations women beholden to colonial settler-state urban water institutions and practices and is particularly problematic in areas not serviced by water utilities, including rural villages, outstations and homelands.

While only the CEDAW contains clauses that could be interpreted to articulate rights to water governance and management, other international documents reference the importance of women’s access to water and a role in water governance. This includes an early call at the 1977 UN Water Conference at Mar del Plata for greater participation of women in planning and decision-making in the field of community water supply and sanitation.⁷³ Consequently, women’s water rights are framed in the context of domestic use, rather than other contexts such as farmers, miners, or Indigenous rights holders. Unfortunately, this modest call has not been robustly echoed in the universal right to water as currently understood.

Some UNDRIP articles suggest the potential for greater expression of Indigenous women’s rights to water,⁷⁴ that is rights beyond the right to domestic water services and rights to water planning and management⁷⁵ conveyed in the universal right to water. As noted above, the UNDRIP alludes to expanded and multifaceted legal rights to water for Indigenous women beyond the universal right to water and may even offer potential for the international rights system to accommodate extant water rights afforded to Indigenous women in Indigenous worldviews. That Indigenous women’s sovereign rights to water are more sophisticated and consequential than those suggested in the universal right to water speaks to their significance.

None of the documents integral to establishing a right to the domestic water services of drinking water and sanitation refer specifically to First Nations women. Rather, when mentioned, women and First Nations peoples are included in references to similarly marginalised or vulnerable groups including the aged and people with disabilities, as noted earlier. Crafting rights in a milieu where both women and Indigenous peoples are regarded from a deficit discourse perspective deals First Nations women a double blow of disadvantage and deficit. The insistence on presenting First Nations women as victims, at risk or in other weakness-based light contrasts starkly with how First Nations women are perceived and treated within their own systems. First Nations women’s sovereign rights to water place them in a unique position, being the First Peoples of unceded territory and holding place specific knowledge, expertise, rights and responsibilities. That is, First Nations women are rights holders not weak, vulnerable stakeholders.⁷⁶ Consequently, the international water rights framework offers First Nations women a particularly narrow right compared to the water rights enjoyed within their own legal and governance frameworks, placing the universal right to water awkwardly at odds with the water rights enjoyed by First Nations women.

Thus, this critique of the international rights framework indicates a narrow conception of ‘the right to water’ as the right to receive potable supply and water-based sanitation services and limited inferred water planning management rights that is both gender blind and largely silent on First Nations peoples. It inadequately addresses First Nations women’s water rights. This simple, narrow right to water disregards women’s expertise or interest in water use, governance and management generally. More than women’s deep involvement in the day-to-day practice of domestic water governance and management,⁷⁷ anecdotal evidence suggests women are better represented, across all organisational levels, in community and not-for-profit environmental and water specific organisations than those in the private or public sectors. While not-for-profit organisations sit outside the powerful government, water utility, researcher triad, the women involved in them are either managing groups such as catchment groups or running programs such as Waterwatch,⁷⁸ developing and deepening their water knowledge and expertise. However, for First Nations women specifically, the international rights framework obscures water rights inherently held within Indigenous governance frameworks. Effectively any rights Indigenous women hold outside the narrow international water rights understanding are rendered invisible.

While the extensive sovereign water rights of Indigenous women are heavily obscured in the international rights framework, UNDRIP may offer some potential for them to become visible at the national level. The nation-state, as the body politic which has legal personality at international law, has a responsibility to activate the terms of any conventions or declarations domestically. Accordingly, after briefly outlining the evolution of First Nations rights in Australia, the next section examines ways the Australian legal system at the Commonwealth level has (or has not, as the case may be) incorporated the requirements of the relevant conventions and declarations to give effect to First Nations women’s water rights. This is followed by two case studies which highlight the influence of settler-state laws over First Nations women’s capacity to exercise their rights in First Nations water law.

5. First Nations Women and Australian Legal and Policy Frameworks

When it comes to First Nations rights, Australia’s record is undeniably woeful.⁷⁹ However, this started to shift in the 1960s with the first land rights legislation enacted in South Australia⁸⁰ and the 1967 constitutional amendment giving the Commonwealth Parliament power to make laws for Aboriginal and Torres Strait Islander peoples. The 1970s then saw the enactment of land rights legislation in Victoria, including the Aboriginal Lands Act 1970 (Vic), as well as the more familiar Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).⁸¹ But the seminal shift did not occur until 1992 when the High Court handed down its landmark decision in Mabo v Queensland [No 2] (Mabo [No 2]).⁸² This case changed the nature of Indigenous and non-Indigenous relations by recognising for the first time that Indigenous Australians had pre-existing rights and interests in land that could be recognised by the common law, known as native title.⁸³ In doing so, the High Court rejected the notion that Australia was terra nullius, land belonging to no one. The subsequent enactment of the Native Title Act 1993 (Cth) (NTA) put in place a statutory process by which Aboriginal and Torres Strait Islander peoples could be recognised as having native title rights over the land and waters for which they could produce evidence of a continuing connection since colonisation. However, the effect of the NTA (discussed below) appears to have reinforced an unofficial national water policy of aqua nullius (or at least aqua minimus),⁸⁴ a policy based on the same fallacious terra nullius notion of no custodianship prior to invasion and colonisation.

5.1. Indigenous Women and Water Rights: Recent Legislative and Policy Developments in Australia’s Commonwealth Jurisdiction

Due to the federal distribution of legislative power under the Commonwealth Constitution, the Commonwealth Parliament has only limited legislative power with respect to water.⁸⁵ It therefore relies on other constitutional heads or power,⁸⁶ or from a referral of power by the States,⁸⁷ as the basis for enacting water related legislation. The management, allocation and use of water is therefore largely regulated by the States. In that respect, Australia has a long history of ignoring the existence of First Nations water rights and interests in its laws and regulations.⁸⁸ A detailed analysis of state-based legislation is not the subject of this article, however it suffices to say that although many current state and territory water laws now make at least some passing references to Indigenous rights and interests,⁸⁹ they make no accommodation for women’s rights and interests in water use and management, they are essentially gender blind.⁹⁰ We therefore now consider the Commonwealth’s role in recognising the water rights of First Nations women, as all legal jurisdictions in Australia, including the Commonwealth (despite its limited legislative power with respect to water), have an obligation to address the history of stolen water and water rights.

The Commonwealth Parliament has the power to incorporate international law domestically via the external affairs power.⁹¹ This would include those international instruments underpinning the human right to water and the rights of Indigenous peoples.⁹² It also has the constitutional power to make laws with respect to Australia’s Indigenous peoples.⁹³ Accordingly, this section offers a brief outline of key Commonwealth legislation and policies, namely the Water Act 2007 (Cth), the NTA and the National Water Initiative, critiquing them in the context of water rights for First Nations women.

The following section then highlights the vexed role of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) in protecting water sites of cultural heritage significance to First Nations women in the context of two case studies.

In all of this, the history, and legacy, of stolen waters, and water rights, globally and domestically must be remembered when considering the importance of recognising within the settler-state legal system First Nations women’s water rights, and what obligation(s) the settler-state has to remediate this legacy of theft.

5.1.1. Water Act 2007 (Cth)

The Water Act 2007 (Water Act) relates primarily (although not exclusively) to the management of water resources in the Murray-Darling Basin.⁹⁴ Insofar that it purports to implement relevant international agreements (ie treaties and conventions, pursuant to the external affairs power), those international agreements are all treaties relating to the environment, such as the Convention on Biological Diversity,⁹⁵ the Framework Convention on Climate Change,⁹⁶ and the Ramsar Convention.⁹⁷ There is no reference in the Water Act to the human rights treaties noted earlier.⁹⁸ The Water Act does, however, provide some limited recognition of Indigenous water rights. This includes a mandated Indigenous position on the Murray-Darling Basin Authority (MDBA),⁹⁹ the entity which prepares, implements and monitors the Basin Plan.¹⁰⁰ To be eligible for appointment to the MDBA in that role, the Indigenous person must have a high level of expertise in ‘Indigenous matters relevant to Basin water resources’.¹⁰¹ The remaining positions on the MDBA require a ‘high level of expertise in one or more fields relevant to the Authority’s functions’,¹⁰² which do not include Indigenous matters.¹⁰³ This simultaneously raises questions about what evidence is considered appropriate to meet criteria set by non-Indigenous people, surreptitiously supporting a deficit discourse. This is because the ultimately arbitrary standard of ‘high level of expertise’ has the potential to over-value institutional qualifications or expertise or rely on narratives of low capacity to ensure that dedicated Indigenous positions, in any organisation, are the only positions filled by Indigenous people.

The Act also provides for two Indigenous representatives on the Basin Community Committee (BCC).¹⁰⁴ This is an increase from the previous sole Indigenous BCC representative, in a basin with more than 40 Indigenous groups (or Nations). ¹⁰⁵ Although not specifically required, this change provides scope for both a male and female Indigenous representative to be appointed to the BCC.¹⁰⁶ This is important because leadership roles with joint female and male leaders is habitually practiced in Aboriginal and Torres Strait Islander communities. Indigenous ontological and axiological approaches to gender underpin more equitable gender power-sharing practices than those encountered in colonial approaches to law and decision-making. This approach is indicated in consultation summary reports informing the Voice Co-Design Final Report.¹⁰⁷ In the Ngukurr community report, for example, ‘Inclusion of … gender balance [were] identified as culturally important elements’¹⁰⁸ and the participants at a Darwin community session ‘strongly supported a gender-balanced approach. Participants saw this as connected to cultural concepts of men’s business and women’s business’.¹⁰⁹

The Water Act mandates that the Basin Plan include information about ‘the uses to which the Basin water resources are put (including by Indigenous people)’.¹¹⁰ Further mandated is that the Basin Plan requires a Water Resource Plan¹¹¹ be prepared:

having regard to social, spiritual and cultural matters relevant to Indigenous people in relation to the water resources of the water resource plan area in the preparation of the water resource plan.¹¹²

There is no requirement, however, for a Water Resource Plan to have regard to those matters in relation specifically to Indigenous women.

5.1.2. Native Title Act 1993 (Cth)

While there are extensive and well-documented problems with Australia’s native title regime,¹¹³ it has assisted some First Nations groups to become native title holders, leading to more control over what happens on their Country. This control, however, has not extended to water, with aqua nullius remaining an influential institutional understanding of water rights and an unofficial policy tool.¹¹⁴ The management of water is the subject of specific treatment in the Native Title Act (NTA) that reduces the input of Indigenous Australians to merely an opportunity to comment on proposed activities that may affect their native title.¹¹⁵ The only scope for input into water management could potentially be in areas where native title holders have been recognised as having exclusive possession, where control of access to land by those native title holders may enable some control over water on that land.¹¹⁶ In terms of the recognition of native title rights to take and use water, in determinations to date this has largely been limited to the right to take and use for essentially cultural, spiritual and domestic non-commercial communal needs.¹¹⁷

The NTA also makes no specific reference to First Nations women; it too is gender blind. As the NTA is at the intersection of western and Indigenous law, it informs how non-Indigenous people, organisations and institutions interact with native title claimants and holders. O’Faircheallaigh suggests that Indigenous women can (and do) play an important role in negotiating native title agreements, even if not physically at the negotiation table.¹¹⁸ Recognising that O’Faircheallaigh’s position resonates with a key tenant of this article, that women hold, and wield, considerable water management expertise consequent to their domestic and cultural responsibilities, it is the authors’ view that without a legislative reminder that First Nations women have specific rights and responsibilities in relation to their traditional Country, there is a danger that they will be overlooked in any negotiations. Megan Davis has noted that:

in the context of highly masculinist indigenous politics … issues such as land, sovereignty, self-determination and the right to development become the neutral policy objectives that the male dominated indigenous political leadership pursues, based on an assumption that the experiences and needs of Aboriginal women and men are identical.¹¹⁹

Despite these gender-blind assumptions crumbling in the face of scrutiny, they continue to persist and can be strongly held by non-Indigenous people, who continue to sit at the negotiating table.¹²⁰

The NTA purports to have been enacted in recognition of international human rights standards and in compliance with Australia’s obligations under, in particular, the Convention on the Elimination of All Forms of Racial Discrimination.¹²¹ However, there is no mention of the human rights instruments outlined above that had been ratified by Australia at the time the NTA was enacted.¹²² Further, the NTA arguably does not live up to expectations in relation to those instruments that are mentioned in the Preamble, and would likely fail the standards as outlined in the UNDRIP, article 26.¹²³

The singular absence of First Nations women – rights, experiences or existence – in these documents demonstrates even less attention being afforded to this group in Australian legislation than in the international human water rights framework. One of the cumulative impacts of Commonwealth legislation is that sovereign water rights held by Indigenous women are obscured. That is, no obvious legal water rights for First Nations women exist within the limited scope (noted above) of Commonwealth water law, and those rights held within First Nations systems are not recognised by the Commonwealth.

5.1.3. National Water Initiative (2004)

Formed by way of intergovernmental agreement, the National Water Initiative (NWI)¹²⁴ is the leading policy document in relation to water in Australia and marks the first time First Nations water rights appeared at a policy level.¹²⁵ This recognition, however, is quite limited, being largely aspirational in its terms. For example, it says that states and territories should ensure ‘the inclusion of Indigenous representation in water planning wherever possible’.¹²⁶ It also focusses mainly on recognising and accommodating native title rights.¹²⁷ In addition, the decoupling of land and water that has occurred across most Australian jurisdictions pursuant to the NWI, has further compromised First Nations women’s capacity to exercise the water rights of their sovereign legal systems.

However, according to Godden and others, ‘[o]ver time, the NWI objectives for Indigenous engagement in water governance have been strengthened by specific measures directed to MDB water management practices’,¹²⁸ citing a 2017 NWI Module developed by the Australian and state and territory governments on engaging Indigenous People in Water Planning and Management.¹²⁹

The NWI was recently the subject of a statutory review,¹³⁰ the final report of which was released on 2 September 2021.¹³¹ The Report recommended the development of a new NWI element for Aboriginal and Torres Strait Islander People’s interests, and to that end a Committee on Aboriginal and Torres Strait Islander Water Interests has been established which ‘has a gender balance to cover both Men’s and Women’s business’.¹³² This presents an ideal opportunity to ensure that the water rights of First Nations women are reflected in any revised NWI. At the time of writing, the Australian government had not yet responded to the Report.

6. First Nations Women and Water Rights in Australia: Commonwealth Case Studies

Both case studies in this next section relate to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) and are the only two known reported instances under the ATSIHP Act which specifically relate to the protection of Aboriginal and Torres Strait Islander women’s water sites. They are intended to highlight the contrasting experiences of First Nations women in exercising their sovereign rights to protect their water sites under Commonwealth cultural heritage protection legislation.

The ATSIHP Act complements existing state-based cultural heritage legislation, but it is generally only invoked when state-based avenues have been exhausted, ie, as a ‘last resort’.¹³³ It allows for the Minister, ‘on application made by or on behalf of an Aboriginal or group of Aboriginals’¹³⁴ to make various types of protection declarations.

6.1. Success Story: Junction Waterhole

The importance of recognising that Aboriginal and Torres Strait Islander women in Australia have distinct rights is illustrated in the successful heritage protection application made in 1992 under s 10 of the ATSIHP Act over Junction Waterhole, a complex of sacred sites in the Northern Territory in the vicinity of Mparntwe (the Todd River/Alice Springs) that were under threat from the building of a dam.¹³⁵ In the process of making the protection declaration, the Minister for Aboriginal Affairs¹³⁶ consulted with the Aboriginal custodians of the sites. This included a consultation between female Aboriginal custodians and female members of the minister’s staff, who had been specifically requested to attend.¹³⁷ According to the female lawyer representing the traditional custodians, ‘that meeting had an enormous impact on the Minister and played a crucial role in the successful outcome of the matter’.¹³⁸ Also influential in the making of the protection order was a report, made pursuant to s 10 of the ATSIHP Act, by Hal Wootten QC.¹³⁹ In that report, he highlighted an earlier Northern Territory Committee of Inquiry Report which had emphasised the need for both Aboriginal men and women to be consulted.¹⁴⁰

6.2. Hindmarsh Island: A Failure

Later, the ATSIHP Act became the subject of much controversy in relation to Aboriginal and Torres Strait Islander women’s knowledge in what is known as the Hindmarsh Island Bridge Affair. The Hindmarsh Island Bridge Affair involved a proposal to build a bridge from the mainland to Hindmarsh Island which would damage sites that were sacred to Ngarrindjeri women. The women unsuccessfully invoked the ATSIHP Act to prevent the bridge from being built.

Much has been written about the Hindmarsh Island Bridge Affair, so it is not necessary to repeat that here.¹⁴¹ However, the Hindmarsh Island Bridge Affair exposed the inability of the Australian legal system to acknowledge the validity of, and to protect, the knowledge and beliefs of Aboriginal women. Langton describes the treatment of the Aboriginal women in the Hindmarsh Island Bridge Affair who sought protection of their sacred sites as ‘a witch hunt’.¹⁴² She notes that the women involved were thought to have lied about their knowledge, to the extent that a Royal Commission was ordered to investigate, yet the Commission ‘took no evidence from the women who sought to protect those sites’.¹⁴³ The Hindmarsh Island Bridge Affair ultimately ended up before the High Court in 1998¹⁴⁴ which upheld the validity of a law amending the ATSIHP Act, an amendment which had been enacted specifically to prevent a heritage protection order from being made over the area of the Hindmarsh Island Bridge. ¹⁴⁵

The Hindmarsh Island Bridge Affair illustrates the ongoing difficulty for Aboriginal women to have their distinct rights recognised, respected and protected. Sites of significance to women (and indeed Aboriginal peoples generally) are still not receiving the level of protection necessary to avoid damage or destruction. The destruction by Rio Tinto of the 46,000 year old Indigenous heritage sites at Juukan Gorge in Western Australia in 2020 is the most egregious example to date of Aboriginal cultural heritage protection laws facilitating destruction rather than protection of Aboriginal sites – water related, women related or otherwise.

Despite the early success at Junction Waterhole, the ATSIHP Act has not been effective.¹⁴⁶ However, following the Juukan Gorge tragedy and the ensuing parliamentary inquiry and report,¹⁴⁷ the Commonwealth has committed to working in partnership with First Nations peoples to co-design amendments to the ATSHIP Act to better protect First Nations cultural heritage.¹⁴⁸ This will provide further opportunity for recognising First Nations women’s knowledge of cultural heritage sites, including water sites.

7. Significance of First Nations Women’s Rights to Water to Modern-day Australian’s Legal Water Rights

This article now (re)considers the vital question of the importance of recognising First Nations women’s water rights, building on the answers highlighted already, namely that (i) these rights predated colonisation and have not been extinguished by colonisation, (ii) they are a ‘complete set’ that no one else holds, or can hold, and therefore integral to cultural integrity, and that (iii) protecting and performing First Nations women’s water rights and practices are critical to the maintenance and survival of First Nations’ cultures and societies. This section thus emphasises the significance of First Nations women’s water rights under First Nations laws and customs, rather than the narrow rights of the international rights framework, to the hegemonic legal water rights in today’s Australia.

Recognising the value of women’s water rights in First Nations water laws and practices holds heightened significance in settler-states such as Australia. Denigrating First Nations ways of being and valuing is a colonial tactic,¹⁴⁹ with ‘western’ science a key offensive strategy deployed, often duplicitously, to prove First Nations knowledge systems deficit in all ways¹⁵⁰ and colonial laws exacting harsh penalties for many Indigenous practices.¹⁵¹ Even in these conditions, First Nations women’s rights and knowledge(s) have been particularly maligned and misrepresented.¹⁵² The Hindmarsh Island Bridge Affair case study outlined above is one of very few recorded examples of the systemic absence of yindyamarra/respect for First Nations women’s rights and knowledge in settler-state Australia.

For the settler-state to recognise the significance of First Nations women’s water rights and expertise, that is their ways of being, valuing and knowing, as ‘legitimate’ is tantamount to accepting the value and validity of all First Nations rights and knowledges. After centuries-long colonial projects globally relying on ‘the Indigenous’ being actively and aggressively expunged from the colonial existence and denied validity within settler-state systems, it would be a major transformation in settler-state priorities and practices to have Indigenous women’s sovereign water rights recognised by the settler-state law. The settler-state operates within an individualistic and transactional ontology¹⁵³ which is vastly different to First Nations ontology that values collectiveness and relationality.¹⁵⁴ Not only would such recognition have implications for the settler-state water regime, and likely to be actively resisted by entrenched sectional interests, there would be unavoidable socio-political and structural change across all systems and institutions as the cognitive dissonance between the two ontological understandings is resolved. Thus, beside the dynamic significance of First Nations women’s water rights, the challenge to settler-state ontology these rights represent is possibly the most significant consequence to the settler-state, their legal systems and more, of recognising First Nations women’s sovereign water rights.

In the short-term, the practice of, and yindyamarra/respect for, First Nations women’s sovereign water rights could be supported through strategic use of UNDRIP, given its endorsement by Australia. For example, article 5 states in part that ‘Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions’. This clause offers strong potential for the settler-state sanctioned yet functional expression of Indigenous women’s water rights as they cover each of these societal systemic aspects. To maintain such ‘institutions’ requires performing the practices and customs of those institutions; strengthening them requires intergenerational transfer of knowledge and practices. Thus, it appears that UNDRIP may offer Indigenous women a settler-state-created legal ‘safe space’ to exercise their water authority freely and openly in a consequential manner. With increasingly free and open exercise of First Nations women’s authority, settler-state systems would be unable to avoid the criticality of First Nations women’s water rights within their own ontological and axiological frameworks. Opportunities to express extant water rights by women already occur in Indigenous only spaces and could possibly be formally included in Indigenous Land Use Agreements made pursuant to the NTA and similar land management/tenure arrangements.

Without detracting from, or usurping, their unique rights and responsibilities, the expanded rights First Nation women intrinsically hold beyond the international rights framework also indicate possible changes in the settler-state system in Australia, to allow more people to enjoy water rights beyond the international framework. First Nations water laws and practices offer models to redesign the settler-state’s legal and governance water rights and management arrangements, without reference to the international rights framework. While the specific and sovereign custodial knowledge of, and rights and responsibility for, Country held by First Nations women, and men, would remain solely in Indigenous hands, principles of gender-equitable leadership, equal respect for men and women’s legal and managerial responsibilities and authority, and to access and store water, for example, could transform the current narrow international right to water held as individuals. Through recognising the embedded ontology and axiology, alongside the extent and authority of First Nations women’s water rights, a strengths-based model of water rights becomes possible for those groups usually regarded from a deficit perspective within settler-state legal and policy ontology and axiology. That is, First Nations women’s water rights offer alternative governance and leadership models to those of the settler-state. If appropriately adapted, more communities, including rural and remote sites already unable to meet the universal right to the provision of domestic potable supply, and individuals (particularly women) could benefit from an expanded understanding of water rights based on millennia of Indigenous women’s robust water rights and management expertise. That is, First Nations women’s water rights could support better, more sustainable water management and use across all societal sectors. This tantalising realisation is an area worthy of further research.

8. Conclusion

This article began by articulating the importance of First Nations women’s rights to water and identified factors inhibiting respect for First Nations women’s rights to water, such as the prevalence of a deficit discourse in law and policy, a preference for male perspectives, and an absence of research. It then identified the character of the international right to water as formulated through a confluence of conventions, declarations and resolutions, with particular reference to First Nations women. This international right was characterised as a narrow right, focussing largely on the provision of domestic potable supply that actively excludes the sovereign rights First Nations women hold in their legal systems. It is important to note that the international right to water also excludes the myriad of other roles humans have water play in our societies. International law therefore provides little basis for nation-states to recognise the expansive nature of water rights of First Nations women. In the discussion, the UNDRIP was recognised as uniquely providing a glimmer of hope in that regard.

Evidence of the characteristics of the international right to water as identified was then sought in the Australian settler-state legal system at the Commonwealth level, due to the Commonwealth’s status as the body politic with international legal personality. First Nations women’s water rights in nation-state settler-state legal systems is the next phase of this research. Supported by two case studies of First Nations women’s experiences, this article found that Commonwealth legislation and policy fails to enshrine the universal right to water and inadequately reflects either the intent or content of UNDRIP. While it may be argued that the Commonwealth is showing promising signs in recognising the significance of First Nations’ women’s water knowledge and practices, no Commonwealth legislation or policy provides meaningful scope for First Nations women to use and manage water according to sovereign laws and customs.

First Nations women hold water rights broader and deeper than those afforded by the international rights framework. They are sovereign rights and are more holistic, socio-culturally integrated, sophisticated and consequential than those provided in the universal right to water. This difference alone speaks to their significance, but also indicates the critical role of First Nations women’s expertise and voices in the water governance and management activities of their communities. The significance of First Nations women’s water rights is such that their practice and expression are essential to the cultural integrity and survival of First Nations peoples.¹⁵⁵ It would be ironic, if after centuries of disregard and denigration, settler-Australians recognised First Nations women’s water rights not because the UNDRIP, created using settler-state processes and structures, requires individual settler-state signatories to do so, but for their own survival in the face of environmental uncertainty and reduced water quality and quantity.

Acknowledgments

The authors would like to thank the editors and the anonymous reviewers for their valuable comments.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Katie O’Bryan

Katie O'Bryan is a senior lecturer in the Law Faculty at Monash University who researches and teaches in Indigenous legal rights, water law, rights of nature laws, human rights and public law. She previously practised as a solicitor representing native title claim groups in Western Australia and Victoria. She holds a Master of Laws in Environmental Law from Macquarie University and a PhD from Monash University focusing on the legal recognition of Indigenous water rights.

kate harriden

kate harriden is a wiradyuri woman and research fellow – Indigenous water at Monash University. kate harriden's research has consistently had a freshwater focus. Her PhD research investigated using Indigenous (water) science(s) frameworks and methods to disrupt the storm water construct, challenging settler-state urban water management approaches more broadly. Her current collaborative research, based in relational accountability, investigates the nature and manifestation of aqua nullius and how Aboriginal and Torres Strait Islanders can resist it.

Notes

1 AHRC, ‘Landmark Report – Indigenous Women and Girls’ (Media Release, 10 December 2020) <https://humanrights.gov.au/about/news/media-releases/landmark-report-first-nations-women-and-girls> accessed 18 February 2022.

2 AHRC, Wiyi Yani U Thangani (Women’s Voices): Securing our Rights, Securing our Future Report (December 2020) 10 (‘Wiyi Yani U Thangani’).

3 We use the term First Nations throughout this article, unless the context requires otherwise.

4 Yindyamarra is a wiradyuri word defined in English as respect, be gentle, polite, honour, do slowly: Stan Grant and John Rudder, A New Wiradjuri Dictionary (Restoration House 2010). Yindyamarra has deeper meaning encapsulating Wiradyuri ways of being and relating that will not be discussed in this article.

5 HV Evatt, Attorney-General and former judge of the High Court of Australia, was one of the members of the committee which drafted the Universal Declaration of Human Rights, and was President of the UN General Assembly in 1948–9.

6 Michael Kirby, ‘H V Evatt & the UN After 60 Years: H V Evatt Lecture 2008’ (2009) 9(1) Evatt Journal <http://evatt.org.au/papers/h-v-evatt-un-after-60-years.html> accessed 30 July 2023.

7 For a list of various human rights treaties that the Australian government has ratified, see: Australian Human Rights Commission, ‘What are Human Rights’ (Web Page) <https://humanrights.gov.au/about/what-are-human-rights>. Examples of the implementation of these treaties include the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth).

8 See, eg, the ‘Torres Strait Eight’ lodged a complaint with the UN Human Rights Committee which found that their human rights had been violated because the Australian government had failed to adequately protect them from climate change: Office of the High Commissioner for Human Rights, ‘Australia Violated Torres Strait Islanders’ Rights to Enjoy Culture and Family Life, UN Committee Finds’ (Press Release, 23 September 2022) <www.ohchr.org/en/press-releases/2022/09/australia-violated-torres-strait-islanders-rights-enjoy-culture-and-family> accessed 30 July 2023.

9 Eg, William Fogarty and others, ‘Deficit Discourse and Indigenous Health: How Narrative Framings of Aboriginal and Torres Strait Islander People are Reproduced in Policy’ (National Centre for Indigenous Studies, ANU, 2018); Fiona Campbell, ‘Deficit Discourse – The ‘Regime of Truth’ Preceding the Cape York Welfare Reform’ (2019) 28(3) Griffith Law Review 303; Jessica Dawson and others, ‘Closing the Gap: Examining How the Problem of Aboriginal and Torres Strait Islander Disadvantage is Represented in Policy’ (2020) 56 Australian Journal of Social Issues 522.

10 Campbell (n 9) 309.

11 Dawson and others (n 9).

12 Dawson and others (n 9), Campbell (n 9).

13 Kate Harriden, ‘Big Water Needs ‘Little’ People: Improving Water Resource Management by Including Households’ (2014) 8(2) International Journal of Water 111.

14 Nehaluddin Ahmad ‘Human Right to Water Under International Law Regime: An Overview’, (2020) 46(3) Commonwealth Law Bulletin 415

15 Commonwealth Constitution, s 51(xxix), the external affairs power.

16 See, eg, Jocelyn Davies, Jane Walker and Yiheyis Taddele Maru, ‘Warlpiri Experiences Highlight Challenges and Opportunities for Gender Equity in Indigenous Conservation Management in Arid Australia’ (2018) 149 Journal of Arid Environments 40; Simon Williams, Dianne Connolly and Alice Williams, ‘The Recognition of Cultural Water Requirements in the Montane Rivers of the Snowy Mountains, Australia’ (2019) 26(3) Australasian Journal of Environmental Management 255. See also Martuwarra RiverOfLife, Katherine S Taylor and Anne Poelina, ‘Living Waters, Law First: Nyikina and Mangala Water Governance in the Kimberley, Western Australia’ (2021) 25(1) Australasian Journal of Water Resources 40, 40–41.

17 Virginia Marshall, ‘Removing the Veil from the “Rights of Nature”: The Dichotomy between First Nations Customary Rights and Environmental Legal Personhood’ (2019) 45(2) Australian Feminist Law Journal 233, 237.

18 Davies and others (n 16).

19 For a review of the literature between 1961 and 1986 see, eg, Francesca Merlan, ‘Gender in Aboriginal Social Life: A Review’ in RM Berndt and R Tonkinson (eds), Social Anthropology and Australian Aboriginal Studies: A Contemporary Overview (Aboriginal Studies Press 1988) 15. See also Nancy M Williams and Lesley Jolley, ‘From Time Immemorial? Gender Relations in Aboriginal Societies Before White ‘Contact’’, in Kay Saunders and Raymond Evans (eds), Gender Relations in Australia: Domination and Negotiation (Harcourt Brace Jovanovich 1992) 9.

20 Diane Bell, Daughters of the Dreaming (Spinifex 1983).

21 Jane Jacobs, ‘Earth Honouring: Western Desires and Indigenous Knowledges’ in Alison Blunt and Gillian Rose (eds), Writing Women and Space: Colonial and Postcolonial Geographies (Guilford Press 1994) 169, 177.

22 Deborah Bird Rose, Dingo Makes Us Human: Life and Land in an Aboriginal Australian Culture (Cambridge University Press 1992).

23 Jacobs (n 21) 178.

24 Richard Howitt and Sandra Suchet-Pearson, ‘Changing Country, Telling Stories: Research Ethics, Methods and Empowerment in Working with Aboriginal Women’ in Kuntala Lahiri-Dutt (ed), Fluid Bonds: Views on Gender and Water (Stree Books 2006) 50.

25 Kim Tallbear, ‘Badass Indigenous Women Caretake Relations: #standingrock, #idlenomore, #blacklivesmatter’ in Nick Estes and Jaskiran Dhillon (eds), Standing with Standing Rock: Voices from the #NoDAPL Movement (University of Minnesota Press 2019) 13.

26 Deborah McGregor, ‘Indigenous Women, Water Justice and Zaagidowin’ (2013) 30(2/3) Canadian Woman Studies 71, 74.

27 Virginia Marshall, Overturning Aqua Nullius: Securing Aboriginal Water Rights (Aboriginal Studies Press 2017).

28 See, eg, Kem Gambrell, ‘Lakota Women Leaders: Getting Things Done Quietly’ (2016) 12(3) Leadership 293; Simon Williams, Dianne Connolly and Alice Williams ‘The Recognition of Cultural Water Requirements in the Montane Rivers of the Snowy Mountains, Australia’ (2019) 26(3) Australasian Journal of Environmental Management 255; Davies and others (n 16).

29 Jacobs (n 21) 177.

30 ibid.

31 Gender-blind refers to policies, practices, laws or systems that ‘fail to recognize differences between men's and women's needs, interests, knowledges, behaviors and power’. Davies and others (n 16) 40.

32 Kaberry wrote Aboriginal Woman Sacred and Profane (Routledge 1939), and was also ‘the first Australian woman to be recognised as a fully trained and qualified anthropologist’. <www.womenaustralia.info/leaders/biogs/WLE0454b.htm> accessed 25 March 2023. Other notable examples include Daisy Bates, Catherine Berndt and Diane Barwick.

33 Linda Wirf, April Campbell and Naomi Rea, ‘Implications of Gendered Environmental Knowledge in Water Allocation Processes in Central Australia’ (2008) 15(3) Gender, Place and Culture 505, 513.

34 See, eg, Davies and others (n 16). See also: Marshall, ‘Removing the Veil’ (n 17) 237.

35 For example, community activists such as MLDRIN delegates Alice William and Melissa Jones and the myriad of Elders engaging with colonial institutions through Land Councils or other Indigenous organisations, and through appointments to water boards and catchment management authorities (CMAs). In Victoria, for example, five First Nations women have been appointed to Victoria’s water boards and CMAs following the October 2021 appointment round.

36 Dinah Shelton, ‘Water Rights of Indigenous Peoples and Local Communities’ in Laurence Boisson de Chazournes and others (eds), International Law and Freshwater: The Multiple Challenges (Edward Elgar 2013) 69, 73.

37 Opened for signature 18 December 1979, 1249 UNTS 1 (entered into force 3 September 1981).

38 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

39 Opened for signature 13 December 2006, 2515 UNTS (entered into force 3 May 2008).

40 There is an oblique reference in the preamble which would encompass First Nations where it affirms that ‘the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women’.

41 Article 14 cl 2(c).

42 In the preamble at (d), insofar as it is in the title of CEDAW, and (q), article 3(g), article 6.1 and 6.2 (relating specifically to women with disabilities), article 15.5 and article 28.2(b).

43 Article 28 cl 2(b) refers to ensuring access to social protection and poverty reduction programmes with an emphasis on women, girls and older persons.

44 Preamble, at (p).

45 Paula Gerber and Bruce Chen, ‘Recognition of the Human Right to Water: Has the Tide Turned?’ (2011) 36(1) Alternative Law Journal 21, 21, 22. See also George McGraw, ‘Defining and Defending the Right to Water and its Minimum Core: Legal Construction and the Role of National Jurisprudence’ (2011) 8(2) Loyola University Chicago International Law Review 127, 140.

46 GA Res 64/292, UN Doc A/RES/64/292 (28 July 2010). Notably, Australia abstained from voting.

47 GA Res 55/196, UN Doc A/RES/55/196 (20 December 2000).

48 GA Res 58/217 UN Doc A/RES/58/217 (23 December 2003).

49 GA Res 68/157, UN Doc A/RES/68/157 (18 December 2013); see also General Assembly Resolution 70/169, ‘The Human Rights to Safe Drinking Water and Sanitation’, GA Res 70/169, UN Doc A/RES/70/169 (17 December 2015).

50 GA Res 71/222, UN Doc A/RES/71/222 (21 December 2016).

51 Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 15 (2002), The Right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’, UN Doc E/C.12/2002/11 (11-29 November 2002).

52 ibid cl 6.

53 This is reinforced by the United Nations Sustainable Development Goals, which also focus on clean water and sanitation (SDG6): <https://sdgs.un.org/goals> accessed 25 March 2023.

54 See, eg, CESCR (n 51) cl 16.

55 Emanuele Fantini, ‘An Introduction to the Human Right to Water: Law, Politics, and Beyond’ (2019) 7 WIREs Water e1405.

56 There are multiple definitions for Country. Country may be differently described, but each seeks to capture the depth and complexity of relationships Country encompasses. The following is a deceptively simple definition ‘Country is a worldview that encompasses our relationship to the physical, ancestral and spiritual dimensions, and involves the kind of intimacy evident in the oft quoted expression “The Country is our mother. We belong to the country; it does not belong to us”’. Bill Gammage and Bruce Pascoe, Country: Future Fire, Future Farming (Thames & Hudson 2021) 5.

57 Although not specifically in relation to First Nations women, see Martuwarra RiverOfLife and others (n 16), 44–50 for a comparison between Living Waters (a First Nations approach) and the National Water Initiative (a transactional approach). For a Canadian First Nations women’s approach, see Deborah McGregor, ‘Indigenous Women, Water Justice and Zaagidowin (Love)’ (2013) 30 (2/3) Canadian Woman Studies 71; Kim Anderson, Barbara Clow and Margaret Haworth-Brockman, ‘Carriers of Water: Aboriginal Women’s Experiences, Relationships, and Reflections’ (2013) 60 Journal of Cleaner Production 11.

58 Indigenous Peoples Kyoto Water Declaration, Third World Water Forum, Kyoto, Japan, March 2003, article 19: <www.activeremedy.org/wp-content/uploads/2014/10/indigenous_peoples_kyoto_water_declaration_2003.pdf> accessed 25 March 2023.

59 GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007).

60 See, eg, article 26.

61 Eleven countries abstained from voting, namely Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine. UN Department of Economic and Social Affairs: Indigenous Peoples, United Nations Declaration on the Rights of Indigenous Peoples: <www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html> accessed 25 January 2023.

62 UN Department of Economic and Social Affairs: Indigenous Peoples, United Nations Declaration on the Rights of Indigenous Peoples: <www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html> accessed 25 January 2023. In relation specifically to Australia, see Jenny Macklin, ‘Statement on the United Nations Declaration of Indigenous Peoples, Parliament House, Canberra, 3 April 2009’ <www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf> accessed 25 January 2023.

63 See Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous People’ (2008) 9(2) Melbourne Journal of International Law 439, 468.

64 Article 46 has three clauses clearly outlining the limits of the ‘self-determination’ on ‘the territorial integrity or political unity of sovereign and independent States’ and the human rights of others.

65 See, eg, Eleanor Hayman, Coleen James, Mark Wedge and David Katzeek, ‘I Yá.Axch´Age? (Can You Hear It?), or Héen Aawashaayi Shaawat (Marrying the Water)’ in Rafael Ziegler and David Groenfeldt (eds), Global Water Ethics: Towards a Global Ethics Charter (Taylor & Francis 2017); Anne Poelina, Katherine Taylor and Ian Perdrisat, ‘Martuwarra Fitzroy River Council: An Indigenous Cultural Approach to Collaborative Water Governance’ (2019) 26(3) Australasian Journal of Environmental Management 236.

66 In August 2022 the Senate referred the UNDRIP to the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs for inquiry and report into the application of the UNDRIP in Australia: ‘Inquiry into the UN Declaration on the Rights of Indigenous People’ (Parliament of Australia) <www.aph.gov.au/Parliamentary_Business/Committees/Joint/Aboriginal_and_Torres_Strait_Islander_Affairs/UNDRIP> accessed 24 January 2023. Canada has passed legislation implementing the UNDRIP domestically, namely the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021.

67 Articles 25 and 26. Also articles 18 and 19 which refer to participation in decision-making, consultation and Free, Prior and Informed Consent.

68 See, eg, Northern Australia Indigenous Land and Sea Management Alliance, ‘A Policy Statement on North Australian Indigenous Water Rights’ (November 2009); Federation of Victorian Traditional Owner Corporations, ‘Victorian Traditional Owner Water Policy Statement 2014’ (November 2014); North Australian Indigenous Experts Water Futures Forum, ‘Mary River Statement’ (6 August 2009); First Peoples’ Water Engagement Council, ‘Policy Framework’ (March 2012). For an overseas example, see, eg, Water Declaration of the Anishinaabek, Mushkegowuk and Onkwehonwe in Ontario (October 2008) cl 33: <https://static1.squarespace.com/static/54ade7ebe4b07588aa079c94/t/54ea50c2e4b0feaa4772eaaf/1424642242464/COO-water-declaration-revised-march-2010.pdf> accessed 25 March 2023.

69 See (n 66).

70 ‘Implementing the United Nations Declaration on the Rights of Indigenous Peoples Act’ <www.justice.gc.ca/eng/declaration/index.html> accessed 30 July 2023.

71 For example, vacuum technology found on aircraft, and waterless composting toilets.

72 GA Res 70/169, UN Doc A/RES/70/169 (22 February 2016, adopted 17 December 2015) 4.

73 Report of the United Nations Water Conference, Mar del Plata, UN Doc E/CONF.70/29 (14–25 March 1977) 35, para 55(d).

74 UNDRIP, eg, Articles 5 and 44.

75 ibid Article 18.

76 In the wider context of Indigenous water rights more generally see, eg, Katie O’Bryan, Indigenous Rights and Water Resource Management: Not Just Another Stakeholder (Routledge 2019).

77 Harriden (n 13).

78 Waterwatch Australia <https://www.waterwatch.org.au> accessed 29 June 2023.

79 See, eg, Bain Attwood, Rights for Aborigines (Allen & Unwin 2003); Richard Broome, Aboriginal Australians: A History Since 1788 (4th edn, Allen & Unwin 2010). Henry Reynolds, Aborigines and Settlers: The Australian Experience, 1788–1939 (Cassell Australia 1972); Henry Reynolds, Fate of a Free People (Penguin 1995); Frontier: Aborigines, Settlers and Land (Allen & Unwin 1996); Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (3rd edn, UNSW Press 2006); Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015).

80 Aboriginal Lands Trust Act 1966 (SA).

81 The Aboriginal Lands Act 1970 (Vic) provides for the grant of specific parcels of land at Lake Tyers and Framlingham, whereas the Aboriginal Land Rights (Northern Territory) 1976 (Cth) applies to all the Northern Territory and establishes a process for handing back unallocated crown land.

82 (1992) 175 CLR 1.

83 Mabo [No 2] did not mention rights over water.

84 ‘Aqua minimus’ is intended to indicate that there has now been some, albeit minimal, recognition of Indigenous water rights. See, Katharine Mary O’Bryan, ‘From Aqua Nullius to Aqua Minimus? The Legal Recognition in Victoria of Indigenous Rights to Participate in the Management of Inland Water Resources – Lessons from Aotearoa-New Zealand’ (PhD Thesis, Monash University, 2015).

85 Australian Constitution, ss 98, 100. For more on these sections see, eg, Paul Kildea and George Williams, ‘The Constitution and the Management of Water in Australia's Rivers’ (2010) 35 Sydney Law Review 595.

86 These include the external affairs power (s 51(xxix)) the corporations power (s 51(xx)) as well as powers in relation to census and statistics (s 51(xi)), meteorological observations (s 51(viii)) and weights and measures (s 51(xv)).

87 Australian Constitution, s 51(xxxvii). For an explanation of this mechanism, see Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge University Press 2006) 14–17. 

88 See, eg, O’Bryan (n 76) 49–66.

89 See, eg, Water Act 2000 (Qld), ss 2(2)(d), s 95; Water Management Act 2000 (NSW) ss 3(c)(iv), 13(1)(e), 55; Rights in Water and Irrigation Act 1914 (WA) s 4(2) (reference to ‘cultural’ purposes) s 26GL, Water Management Act 1999 (Tas) s 193, Landscape South Australia Act 2019 (SA) ss 7(1)(b) and (3)(a)(c); 16(1)(i); 25; 47. Water Act 1989 (Vic), ss 1(ea)(i), 22C(3)(a)(i), 22D(2)(b), 33AAB(1)(c)(ii).

90 Victoria’s 2016 water policy document does acknowledge the need for gender equity in the water sector; Department of Environment, Land, Water and Planning (Vic) Water For Victoria – Water Plan (2016) action 10.7.

91 Australian Constitution s 51(xxix).

92 The external affairs power enables the Commonwealth Parliament to incorporate treaties (conventions) into domestic legislation: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Victoria v Commonwealth (1996) 187 CLR 416. It also enables the Commonwealth Parliament to incorporate customary international law into domestic legislation. The UNDRIP, given that it is not a treaty, would fall into the latter category, the rights of Indigenous people being arguably now part of customary international law. See, eg, James Anaya, ‘The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples’ (2005) 12 Law and Anthropology 127.

93 Australian Constitution, s 51(xxvi). This power enables the Commonwealth Parliament to make laws with respect to people of any race for whom it is deemed necessary to make special laws.

94 The long title of the Act states that it is ‘[a]n Act to make provision for the management of the water resources of the Murray-Darling Basin, and to make provision for other matters of national interest in relation to water and water information, and for related purposes’. See also s 3.

95 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993).

96 Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 71 (entered into force 21 March 1994).

97 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975).

98 Water Act s 3, definition of 'relevant international agreements’.

99 Section 177(b). The first person to hold this position is Rene Woods, appointed in December 2020. Murray-Darling Basin Authority, ‘MDBA Welcomes Rene Woods as New Indigenous Board Member’ (Media Release, 18 December 2020) <https://www.mdba.gov.au/news-and-events/newsroom/mdba-welcomes-rene-woods-new-indigenous-board-member> accessed 21 November 2021.

100 A legislative instrument made pursuant to the Water Act 2007. This includes ensuring the volume of water extracted from the Murray-Darling Basin does not impinge on environmental requirements, see s 20 of the Water Act.

101 Water Act s 178(2A).

102 Water Act s 178(2)(a).

103 The Act initially provided that to be eligible for appointment to the MDBA, an individual needed to have a high level of expertise in one or more fields relevant to the Authority’s functions, including Indigenous matters relevant to the Basin’s resources. So theoretically that individual did not have to be Indigenous.

104 Water Act s 202(5)(c).

105 See Murray Lower Darling Rivers Indigenous Nations <https://mldrin.org> accessed 30 July 2023; Northern Basin Aboriginal Nations <www.facebook.com/northernbasinaboriginalnations/> accessed 30 July 2023.

106 As at 26 January 2023 there were in fact three Indigenous BCC members, two male and one female. The Chair of the BCC, Phil Duncan, is Indigenous: <https://www.mdba.gov.au/about-us/governance-water-management-murray-darling-basin/basin-community-committee> accessed 26 January 2023.

107 National Indigenous Australians Agency, Indigenous Voice Co-Design Process: Final Report to the Australian Government (Commonwealth of Australia, July 2021).

108 ibid 126.

109 ibid.

110 Water Act s 22(1).

111 These are legally enforceable plans made by the states and territories.

112 Water Act s 22(3)(ca).

113 See, eg, Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 523; Lisa Strelein, Compromised Jurisprudence. Native Title Cases Since Mabo (Aboriginal Studies Press 2006); Toni Bauman and Lydia Glick (eds), The Limits of Change: Mabo and Native Title 20 Years On (AIATSIS Research Publications 2012); Sean Brennan and others (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press 2015); Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, April 2015).

114 Marshall, Overturning Aqua Nullius (n 27).

115 NTA s 24HA.

116 See Gumana v Northern Territory [No 2] [2005] FCA 1425 (11 October 2005) [43].

117 Following the decision in Akiba v Commonwealth (2013) 250 CLR 209, there is the potential for native title rights to take and use water to be expanded. The High Court in Akiba held that there was a right to take resources for any purpose, which could include for commercial purposes. At the time of writing there has been no judicial determination on this point in relation to water (as a resource). In light of Akiba, some exclusive possession consent determinations no longer contain the qualification that water access and use be for cultural, spiritual and non-commercial communal needs. See, eg, Minning v Western Australia [2020] FCA 1051 order 7(b).

118 Ciaran O’Faircheallaigh, ‘Women's Absence, Women's Power: Indigenous Women and Negotiations with Mining Companies in Australia and Canada’ (2013) 36(11) Ethnic and Racial Studies 1789.

119 Megan Davis, ‘The Globalisation of International Human Rights Law, Aboriginal Women and the Practice of Aboriginal Customary Law’ in Maureen Cain and Adrian Howe (eds), Women, Crime and Social Harm: Towards a Criminology for the Global Age (Hart 2008) 137, 143.

120 Wiyi Yani U Thangani (n 2) 354.

121 NTA, Preamble. This was the intention of the government at the time the bill was introduced: Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2878 (Paul Keating, Prime Minister). 

122 CEDAW (ratified in 1983) and CROC (ratified in 1990). The CRPD was adopted/opened for signature in 2007 and was ratified by Australia that same year.

123 Prior to UNDRIP, the 1998 amendments to the NTA were found by the UN Committee on the Elimination of Racial Discrimination to be in breach of various articles in the Convention on the Elimination of all forms of Racial Discrimination: Report of the Committee on the Elimination of Racial Discrimination, GAOR 54th sess, 1331st mtg, Supp 18, UN Doc A/54/18, 6.

124 Intergovernmental Agreement on a National Water Initiative (25 June 2004).

125 O’Bryan (n 76) 47.

126 NWI cl 52(i) (our emphasis).

127 NWI cls 53-54. See also objectives, cl 23(iii) ‘environmental and other public benefit outcomes’, defined as including ‘indigenous and cultural values’.

128 Lee Godden, Sue Jackson and Katie O’Bryan, ‘Indigenous Water Rights and Water Law Reform in Australia’ (2020) 37 Environmental and Planning Law Journal 655, 663–4.

129 Australian Department of Agriculture, Water and Environment, NWI Module: Engaging Indigenous Peoples in Water Planning and Management <www.agriculture.gov.au/sites/default/files/sitecollectiondocuments/water/indigenous-engagement.docx> accessed 25 March 2023.

130 Water Act s 88(2).

131 <www.pc.gov.au/inquiries/completed/water-reform-2020/report> accessed 25 March 2023.

132 Productivity Commission, National Water Reform 2020, Inquiry Report (Report No 96, 28 May 2021) 125. Interestingly, this is the only reference to gender in the entire report.

133 Joint Standing Committee on Northern Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (October 2021) 150; Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (22 August 1996) 5–6; Department of the Environment, Heritage, Water and the Arts (Cth), Indigenous Heritage Law Reform — For Discussion (August 2009) 4; Explanatory Memorandum, Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth) 3.

134 See, eg, ATSIHP Act s 9.

135 Commonwealth Gazette: Special, No S 124, 16 May 1992.

136 At the time, this was Robert Tickner.

137 Annie Keely, ‘Two Laws Meet: The Significance of Junction Waterhole’ (1992) 2(56) Aboriginal Law Bulletin 14, 16.

138 ibid.

139 An extract of which is reproduced in Hal Wooton, ‘The Alice Springs Dam and Sacred Sites’ (1993) 65(4) Australian Quarterly 8.

140 ibid 12.

141 See, eg, Joanna Bourke, ‘Women’s Business: Sex, Secrets and the Hindmarsh Island Bridge Affair’ (1997) 20(2) University of New South Wales Law Journal 349; James F Weiner, ‘Culture in a Sealed Envelope: The Concealment of Aboriginal Cultural Heritage and Tradition in the Hindmarsh Island Bridge Affair’ (1999) 5(2) The Journal of the Royal Anthropological Institute 193; Greg Ogle, ‘Just When You Thought it was Safe to Talk About Hindmarsh Island’ (2002) 5(15) Indigenous Law Bulletin 16; Aliza Taubman, ‘Protecting Aboriginal Sacred Sites: the Aftermath of the Hindmarsh Island Dispute’ (2002) 19(2) Environmental and Planning Law Journal 140; Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (Hodder 2003).

142 Marcia Langton, ‘The Hindmarsh Island Bridge Affair: How Aboriginal Women’s Religion became an Administrable Affair’ (1996) 11(24) Australian Feminist Studies 211, 212.

143 ibid 214. Weiner (n 141) notes, however, that the Aboriginal women boycotted the Royal Commission, 198, 202.

144 Kartinyeri v Commonwealth (1998) 195 CLR 337.

145 Hindmarsh Island Bridge Act 1997 (Cth).

146 Department of the Environment, Heritage, Water and the Arts (Cth), Indigenous Heritage Law Reform — For Discussion (August 2009) 4.

147 Joint Standing Committee on Northern Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Canberra, October 2021).

148 First Nations Heritage Protection Alliance, ‘Historic Day in the Fight to Protect First Nations Cultural Heritage’ (Media Release) <https://culturalheritage.org.au/historic-day-in-the-fight-to-protect-first-nations-cultural-heritage/> accessed 30 July 2023. A copy of the agreement is available at <https://culturalheritage.org.au/resources/partnership-agreement-between-the-alliance-and-government-to-reform-cultural-heritage-protections/> accessed 4 August 2023.

149 Aileen Moreton-Robinson, The White Possessive: Property, Power and Indigenous Sovereignty (University of Minnesota Press 2015).

150 See, eg, Alan Bishop, ‘Western Mathematics: The Secret Weapon of Cultural Imperialism’ (1990) 32(2) Race & Class 51.

151 See, eg, Sean Kerins, ‘Challenging Conspiracies of Silence with Art: Waralungku Arts, Borroloola, Northern Territory’ (2013-4) 266 Art Monthly Australia 48.

152 See, eg, Irene Watson, ‘Re-centring First Nations Knowledge and Places in a Terra Nullius Space’ (2014) 10(5) AlterNative: An International Journal of Indigenous Scholarship 508.

153 Moreton-Robinson (n 149).

154 ibid.

155 See, eg, Wiyi Yani U Thangani (n 2) Chapter 11, Land and Country.