A property rights schema for cultural flows in the Murray Darling Basin, Australia

ABSTRACT

Water management in Australia’s Murray-Darling Basin is undergoing a highly-contested shift from single use management for irrigation, to multiple use management for irrigation and environmental flows. Despite a requirement to ‘take account’ of Indigenous values, multiple use management does not yet include cultural flows – water flows for Aboriginal groups to maintain Indigenous cultural values. Within the economics literature, cultural values are treated as a passive ‘use’ of place for spiritual or cultural activities, with cultural flows framed as flows of water delivered to particular sites for cultural ‘uses’. Aboriginal groups, however, argue for cultural flows to be defined in terms of water entitlements – a property right to water. Property rights have evolved within a specific historic and cultural context, and reflect a Western ontology that is very different to Aboriginal ontologies. This article explores whether a property rights construct might be compatible with Aboriginal ontologies, and whether water entitlements could deliver cultural benefits in ways hoped for by Aboriginal peoples. We find that cultural flows need to extend beyond rights to flows of water to encompass a broader bundle of rights including management and governance rights, if Aboriginal groups are to obtain beneficial cultural outcomes from those flows.

KEYWORDS:

• Cultural flows
• Aboriginal water rights
• common property
• Murray Darling Basin
• property rights
• governance

Introduction

Since the 1970s a major water policy reform program has been underway in the Murray-Darling Basin of Australia (the Basin) to improve the efficiency of water use (largely by irrigated agriculture), and address significant environmental degradation resulting from both over-extraction of water, and reduction in natural flow variability from the construction of storages and other flow-regulating structures. The reform process has seen the development of a system of property rights (known as water entitlements) to a share of a ‘consumptive pool’ of water; a cap or limit on water extractions and the creation of a non-consumptive (environmental) pool¹; and a system of water planning for the allocation of water between consumptive and non-consumptive uses (Bark et al. 2012).

The 1994 Council of Australian Governments (COAG) Water Reform Framework established the principles of water markets, individual property rights to water, cost recovery, and efficient pricing as the core institutional framework to underpin the management of water in the Basin. It was also the first time that the right of the environment to water was recognised. In 2004, the National Water Initiative (NWI) sought to accelerate this market-oriented water reform agenda, and introduced the first recognition of Indigenous interests in water with a policy requirement to provide for Indigenous access to water resources (COAG 2004). This recognition did not extend to allocating water entitlements or property rights to Aboriginal people.

The Echuca Declaration in 2007 articulated the concept of cultural flows as ‘water entitlements that are legally and beneficially owned by the [Indigenous or First] Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, natural, environmental, social and economic conditions of those Nations’ (MLDRIN and NBAN 2007). The Declaration stated that ‘Indigenous Nations each have responsibilities and obligations under their Indigenous Law/Lore and Custom to protect, conserve and maintain the environment and the ecosystems in their natural state to ensure the sustainability of the whole environment; … we have obligations … to care for Country and to respect our neighbours both down and up-stream … Cultural Flows must be water rights that we hold in our own name’ (MLDRIN and NBAN 2007, 2) (emphasis added).

Framing cultural flows in the language of property rights, and water rights or entitlements in particular, was seen by MLDRIN ‘as a way of translating Indigenous people’s water rights, needs and aspirations into the language of modern water management’ (Environmental Justice Australia, undated). Given the historical and cultural context of the development of property rights, and the significant differences between Aboriginal and non-Aboriginal ontologies, there is a risk that translating Aboriginal interests into Western economic or legal language may misrepresent those interests. This article explores some of the issues in defining cultural flows in terms of a Western understanding of property rights and water entitlements, and considers how these issues might be addressed through a more careful consideration of property rights.

Background

The Basin is the catchment for Australia’s largest river system. Over-extraction of water for irrigation has led to significant environmental degradation (MDBA 2021). A water reform program to improve the efficiency of water use began in the 1970s. From the 1990s the emphasis of water policy reform has increasingly been on reversing environmental degradation through the development of institutional mechanisms for returning some water from irrigators to the environment. In 2012, in response to the Millennium Drought (which ended in 2010), the Murray-Darling Basin Plan (Basin Plan) continued this agenda by introducing new governance arrangements to begin the process of implementing a sustainable diversion limit (SDL) on water diversions (Australian Government 2012).

The Basin is also the ancestral home to around 40 Aboriginal language groups.² Aboriginal peoples have been excluded from the contemporary market-based institutional arrangements established for water, reflecting the historical lack of recognition of Aboriginal land and water rights in Australia (Banner 2005; Patton 2000). Aboriginal groups have articulated what a cultural flow would need to deliver for a number of case study sites across the Basin³, but despite the NWI’s requirement to ‘take account’ of Aboriginal interests and objectives in the allocation of water in the Basin (COAG 2004), there are no guidelines as to how Aboriginal objectives should be taken into account in practice, or what a cultural flow means in terms of water flows or volumes more broadly (Tan and Jackson 2013).⁴

Environmental flows are defined as a water flow to aquatic ecosystems that maintain the provision of goods and services to people (Chan et al. 2012; Docker and Robinson 2014). The environmental flows approach does not seek to restore natural flow patterns, but treats the environment as a water consumer, ranking environmental assets in terms of their priority for watering each year to determine an environmental flow regime (Swirepik et al. 2016).

In thinking about a cultural flow as a separate allocation of water for ‘cultural assets’ (MDBA 2016; MLDRIN, NBAN and NAILSMA 2018), researchers and policy makers seem to be adopting a similar approach. Defining cultural values in terms of ‘assets’ – specific sites or places used for ceremony, camping, hunting or collecting food or other resources – makes culture analogous to a ‘recreational’ use of nature or a passive enjoyment of ecosystems by people for cultural purposes, a ‘cultural ecosystem service’ (MEA 2003).

This view of culture as a series of physical places or artefacts can be described as the ‘heritage’ or archaeological view which leads to the protection of culture being ‘reduced to site identification and management’ (Bark et al. 2015, 245). It is often assumed that an environmental flow will also implicitly satisfy some cultural flow objectives. While some cultural benefits to Aboriginal people can be provided through environmental flows, there are also significant differences between cultural and environmental watering objectives in terms of flow patterns and targeted ecosystem or environmental responses (Finn and Jackson 2011; MDBA 2016). Aboriginal people have also identified cultural governance as a key distinction between cultural and environmental flows and have called for active and informed involvement in all aspects of water management and operations (MLDRIN, NBAN and NAILSMA 2018).

Indigenous people often identify Indigenous governance as a key distinction between environmental and cultural water. With cultural flows, it is the Indigenous people themselves who decide where and when water should be delivered … this direct governance role ensures that Indigenous peoples are empowered to fulfil responsibilities to care for country … it also reduces the costs of translating their values. (Weir et al. 2013: 16)

A broader recognition of culture as being about the way in which a society’s social norms and customs reflect its values and beliefs thus means that an understanding of cultural flows needs to go beyond site identification, or passive allocation of water to specific sites of ‘cultural value’, to include decision making over water use or management. Decision making for environmental water has been retained by government agencies responsible for water management. Aboriginal organisations are increasingly being consulted in relation to water management decisions, but do not have decision making authority over water management.

The next section gives a very high level overview of features of ontology (belief systems or cultural explanations of the ‘nature of being’) across different Aboriginal groups that are of key relevance to our primary research question. This question concerns whether structures of Aboriginal rights and obligations exercised in accordance with cultural rules and protocols could be mapped into a system of property rights in such a way that Aboriginal aspirations for cultural flows within the Basin become feasible within contemporary market-based institutional settings. In the final section, we make some observations about the types of water rights that would be required to fulfil these aspirations, including through cultural governance.

Acknowledging that there are at least 40 Aboriginal language groups across the Basin, and that each group differs in its cultural details, we focus our overview on three broad ontological concepts that authoritative evidence (cited below) demonstrates were shared by all groups across the continent (and thus across the Basin): the Dreaming (and the closely-associated broad concept of Dreaming tracks); kinship (encompassing the broad concept of totems); and custodianship of Country (and associated systems of assigning and managing custodial rights and responsibilities).

Aboriginal ontologies and cultural frameworks

Methods

In seeking to understand Aboriginal belief systems, ontologies and customary practices, there is a rich historical literature written by early convicts, settlers, explorers, missionaries and pastoralists who lived in and amongst Aboriginal peoples, often for extended periods of time, in the 19th and early 20th centuries and who recorded their direct observations of customary practices (e.g. Ridley 1873; Fraser 1892; Parker 1905; Mathews 2007; Pink 1936). This literature provides some of the most detailed evidence available on traditional customary practice. These early writers observed that Aboriginal groups had what appeared to be well defined territories with boundaries defined by natural features (see Stanner 1965; Williams 1986; Sutton 1995; Patton 2000). Contemporary Aboriginal scholars, while noting that these historic texts were written through a Western lens and value system and hence are culturally biased, agree that they nevertheless provide useful insights into traditional Aboriginal practices (Marshall 2014). This literature is supplemented by a number of anthropological and legal studies (see Stanner 1965; Williams 1980; Williams 1986; Myers 1982; Sutton 1995). These studies provide evidence of customary practices from a wide number of Aboriginal groups in different parts of the country – the Euahlayi and Kamiloroi of northern NSW, the Yolngu of the Northern Territory, and the Aranda people of South Australia to name a few.

The use in this section of multiple sources of information from different groups and different regions is not to generalise or extrapolate across groups, but rather to illustrate the general point that kinship relationships which extend across both human and non-human domains follow from the Dreaming, and serve to create rules, or systems of rights and obligations that regulate the use and management of a particular landscape both within and between groups. This point is important in seeking to evaluate whether water rights can be successful in creating cultural flows within the Basin.

The Dreaming

For Aboriginal peoples the world was, and continues to be, created though the actions of beings referred to as Creation Ancestors. The term ‘The Dreaming’ is an English word used to try and convey the inherent inter-connectedness of the ‘complex network of faith, knowledge and ritual that dominates all spiritual and practical aspects of Aboriginal life’ (Flood 2006, 138; Stanner 2009). The Dreaming describes the Ancestors’ travels, creating the landscape, the law, rights and obligations, and customs and social rules (Williams 1986; Skulthorpe and Svelby 2007; Hunt and Smith 2006; Norris and Yidumduma Harney 2014).

… the Dreaming [is] a system of law that ‘constitutes … a ‘theory of existence’ in which everything, including land, water, persons, customs, and resources originates (Myers 1982: 49). … .‘[T]he Law’ … drives much of customary behaviour across different domains such as property rights and responsibilities … (Hunt and Smith 2006: 22)

The paths taken by the Creation Ancestors in their travels are known as Dreaming Tracks, or Songlines, and they:

… describe the journeys of ancestral beings, often giant animals or people, over what began as a featureless domain. Mountains, rivers, waterholes, animal and plant species, and other natural and cultural resources came into being as a result of events that took place during these Dreamtime journeys … (Smyth 1994: 3)

Songlines include knowledge of relationships between people, the land, and law, encoding a deep understanding of the interconnectedness within the landscape and ensuring intergenerational transmission of inter-group connection and knowledge. Aboriginal ontologies do not distinguish between past-present-future, and so the Dreaming does not signify a chronological concept of time. It can be thought of as a worldview in which everything – language, cultural law, knowledge, totems, kinship, and territory – is co-located and co-created. Figure 1 attempts to convey some of the connectivity that is intrinsic to Aboriginal ontologies.

Songlines provide the link between the Creation Ancestors and the territory or estate of each Aboriginal group:

‘Custodial rights’ to a piece of land were passed down by the use of Songlines … these ‘Songlines’ described and defined the shape and size of the land in each region. Everyone inherited … a stretch of the ancestors’ Songlines … that were linked to [a] particular stretch of country. The custodianship of this piece of land was passed down … They were title to [an individual’s] territory, of which he was the temporary custodian … until the songs were passed onto the next generation. (Jones, McLeod, and Barker 2001: 14)

Figure 1. Aboriginal dreaming. Source: adapted from the Southern Arrernte Family Community Group ‘Dreamtime Chart’ (undated).

The same Songlines or Dreaming Tracks can be known by a number of Aboriginal groups and provide links between different groups who have the same (or share parts of the same) Dreaming stories. ‘ … [A] single place has multiple connections to distinct but overlapping sets of people’ (Sutton 1995: 57). Some Dreaming tracks are local, while others may extend hundreds of kilometres. For example, the Euahlayi people in northern NSW have Songlines that extend to the Northern Territory and down to Alice Springs in the central desert (connecting them to the Arrernte people⁵), as well as to Byron Bay, the Gulf of Carpentaria and the Snowy Mountains:

Euahlayi people know of a songline stretching from … Alice Springs to Byron Bay … This is the Mulliyan-ga [eaglehawk] songline … which connects the Arrernte people of Alice Springs with the Euahlayi people of northwest NSW … The Euahlayi also know of the Black Snake/Bogong Moth songline which connects Normanton on the Gulf of Carpentaria with the Snowy Mountains near Canberra. This songline in the sky follows the Milky Way, and intersects with the Mulliyan-ga songline over Euahlayi country (Fuller et al. 2014: 5)

This connection of multiple groups to place through Songlines is important to understanding the nature of kinship and boundaries.

Kinship

Although kinship is often described in terms of complex marriage rules, our interest in this article is in understanding how kinship creates rules that govern use and management of the landscape.⁶ Kinship includes both blood relations and other people, as well as animals, plants, rocks and mountains, rivers, the sky and the stars and other parts of the natural and spiritual worlds that share the same totem or Creation Ancestor (Horton 1994). While details vary, systems of kinship and totem exist across all language groups (Keen 2004; Horton 1994). Not all language groups refer to them as totems; they are sometimes referred to by way of skin classifications. But for many if not all Aboriginal groups, kinship relationships of a totemic kind have their basis in the consubsantiality of a people with their Creation Ancestors (Rose 2001). Referring to the Eastern Arrernte language group in central Australia, Turner (in Turner and McDonald 2010) stated:

Animals and other Species are in the kinship too. They come from our Land, and they’re what our ‘totem’ is, as the English call it. (9)

And:

Kinship comes out of the country itself, it comes from the Ancestor Beings. (76)

People can have a number of totems, and have a responsibility or obligation to look after them (see for example, Ridley 1873; Fraser 1892; Langloh Parker 1905; Mathews 1906). Totems and kinship create a network of rights and obligations or responsibilities to care for their own Country but also to other mobs Country - for example the Country of their mother or father - and these rights and obligations differ in their type and primacy.⁷

Systems of rights and responsibilities for custodianship of Country

Language marks the relationship between different groups … [W]here language changes … [it] marks the boundary of the land of a related but separate land owning group (Williams 1986: 40)

Much of the continent, aside from areas such as the Western Desert (Horton 1994), and its language groups may be divided into estates under the custodianship of clans⁸, each descended from a Creation Ancestor or totem (Fraser 1892; Rose, James, and Watson 2003). Clans or alternative local group structures are the social unit whose totem gives them custodial responsibilities for a particular place. For example, Hunt and Smith (2006, 19) found that, across all types of Aboriginal communities, certain local groups of people have rights to exercise custodianship over particular territories and resources.

While primary responsibility for a place resides with a single custodial group, specific sites associated with totems often have significance to multiple custodial groups through kinship relationships. Clans, for instance, often have subsidiary rights to other clan estates that can be characterised as usufructuary rights (Sutton 1996) – use rights including to hunt, collect food and other resources, travel, camp or hold ceremony. For example, the Euhlaroi are the primary custodians of the Narran Lakes region of northern NSW, but other clans and surrounding language groups also have rights to access and use the resources of the Narran Lakes. Similarly, the Euhlaroi have kinship rights to access and use resources in neighbouring clanal territories (Davies, Wilson, and Ridges 2020).

Within each clan estate, smaller groups (families or individuals) may also have subsidiary rights to smaller estates on the basis of totem, for which they have custodial responsibility. In Yolngu Country in Arnhem Land, Northern Territory, these subsidiary rights can be revoked by the primary totemic group or clan (Williams 1986). Clan estates are inalienable but there may be rules under cultural law that govern how clan estates are passed onto successor clans on the basis of kinship and totem if the custodial clan dies out (Rose, James, and Watson 2003; Sutton 1996; Williams 1986).⁹ This ensures that reciprocal obligations and responsibilities, between people and between people and non-humans, continue to be fulfilled.

Kinship thus creates a complex set of overlapping territorial rights to resources, and obligations to manage or care for Country in which the rights and obligations of clans and other custodial group structures are nested within the wider language group’s cultural and institutional customary practices and laws:

… a local group's system of laws and customs [is] part of and embedded in a geographically and socially wider set of similar laws, customs or systems. This latter embedding is particularly important in establishing the fundamental possessive relations of a group to land. (Sutton 1996: 9)

Where clans and other custodial groups have rights to visit the territories of other groups, these rights are maintained through ceremony, visits, marriage and trade (Myers 1982; Sutton 1996; Berndt and Berndt 1964). Visits often follow a seasonal pattern in relation to resource availability, such that there are certain times of year when other mobs can come onto Country for resources, for ceremony or to fulfil cultural obligations. Clan and family members thus frequently cross into other estates and territories to maintain connection and fulfil custodial obligations, but there are protocols or rules about entering. Those seeking permission to enter another mob’s estate must have a valid reason and a kinship connection, and must establish where their rights and obligations fit into those of the custodial clan whose territory is being entered. This is done by seeking permission from the clan whose estate is being entered (Thomas 2007).

… [I]n 1894 … attendees travelled up to 160 km on foot to attend [ceremony at Narran Lakes]. The camp was broken down into three sections, one being people from the Mogil Mogil, Collarenebri, and Walgett areas (most likely Euahlayi language group), another from the Kunopia, Mungindi, and Welltown areas, and the last from the Moonie and St. George (Qld) areas. The latter two groups were possibly Kamilaroi and Bigambul language groups. … messengers were sent out … two years prior to invite people (Fuller et al. 2014; 6)

Clan elders have the right to exclude others but rarely do so – access is always granted as long as the right permission to enter is sought, for example by lighting a fire and waiting to be invited (Myers 1982). It is common for visitors to have specific trails or tracks they must follow, and have specific ‘camps’ or places where they can stay on other clan territories – they cannot just travel or camp anywhere (Stanner 1965; Horton 1994). The purpose of enforcing these protocols is not to enforce exclusive access to territory in a property rights sense, but rather to ensure that the right permissions have been sought. The boundaries between clan estates are not boundaries in the sense of a barrier, but are areas where a number of clans have well defined and overlapping rights and obligations based on kinship.

The complexity of overlapping rights and obligations needs to be kept track of in fulfilling custodial obligations, and it has been suggested that totems and other kin classifications (which may in some cases include moieties and sections) can be interpreted as a cultural mechanism for dealing with the complexity of kinship relationships – belonging to a kin classification reduces complexity by pre-defining many kinship obligations and responsibilities (Keen 2004; Morphy and Crawford 2019). Cultural Law ‘ensures that each person knows his or her relationships and responsibilities for other people … for country … and for their on-going relationships with the (ancestors)’ (Grieves 2008, 364). Schwab (1991:, 147) describes this in relation to Aboriginal groups in South Australia:

When a nunga [person] meets another nunga for the first time, his first question is always ‘who's your people?’ Sometimes he might ask ‘where ya from?’ or ‘where’s your country?’ but what he's really after is that other fella's people.

Kinship structures people’s rights and responsibilities in relation to each other and, through totems, to all other things. The rights created by kinship define responsibilities and obligations for the protection and management of the landscape, and include access and use rights, and subsidiary rights of occupation and use. Thus, although the primary rights may be held by a particular custodial group, other such groups, as well as particular family groups and individuals within these groups, also have clearly defined rights and obligations in relation to what non-Aboriginal people would regard as resources.¹⁰ Pink (1936), writing of the Arrernte language group¹¹ around Alice Springs, described the system of clan estates associated with totems, and larger territories or language groups comprising several clan estates. The edges of each clan estate faded into what she described as ‘empty lands’, land that belonged to the language group but not to any individual clan – they were shared or ‘common lands’ (Stanner 1965).

Rather than a Western understanding of territories and boundaries, it is more accurate to understand boundaries in terms of the relationships created by Creation Ancestors. Within this system of overlapping and reciprocal rights and responsibilities, the landscape is actively managed. Traditional customary activities are widely based on environmental or natural cues. Changes in the constellations and other features of the sky signal seasonal changes that are used as cues for hunting or other food gathering as well as ceremonies and travel (Fuller et al. 2014). Knowledge of the sky – astronomy – passed on through Songlines is important for navigation as well as being an important source of ecological knowledge:

… [Songlines] describe … the location of mountains, waterholes, landmarks, and boundaries. The song therefore constitutes an oral map, enabling the traveler to navigate across the land while finding food and water. (Norris and Yidumduma Harney 2014: 6)

For the Euhlaroi and surrounding groups in northern NSW, the appearance of particular plants or animals, constellations in the sky, or flood events, triggers cultural activities or custodial obligations, determining when animals or plants can be hunted or harvested, when land management practices such as burning take place, and when things have to be rested and not used (Davies, Wilson, and Ridges 2020). Country was regularly burned to control the movement of game and improve the productivity of food resources. The fishtraps of Brewarrina (northern NSW) and elsewhere in the Basin – stone structures built in-stream to manage the movement and aggregation of fish – enhance the productivity of fishing activity by capturing floodwaters into a series of ponds in which fish are caught but which allow breeding stock to get through the traps. Particular ponds were managed by particular families but they also had responsibility to ensure fish pass through the system to other families downstream (Pascoe 2014).

Places at which Creation events occur along a Dreaming track are regarded as sacred sites with their own stories (Flood 2006; Rumsey 2001). Places where Songlines cross or where the Creation Ancestors ‘did something’ may be regarded as sacred, and hunting and other activities may be forbidden in those places (Rose, James, and Watson 2003). Where sacred sites coincide with water or other resources that are important during drought or breeding seasons, they may serve to create sanctuaries or refugia that protect animals and other resources.

Custodial groups exercise stewardship but not ownership over resources such as game or water while they are on their Country, using what they need but no more, and have to pass them on – or allow them to pass – to the next mob at the right time (Davies, Wilson, and Ridges 2020).

Western understandings of property rights

Property rights theory has its origins in the Roman constructs of res and personae – separating things from people – that have underpinned the development of Western legal and economic principles (Domingo 2017). In this tradition, spiritual values structure society’s system of ethics and morals (but, arguably, no longer) its economic or institutional structures. Western economic and legal frameworks treat spiritual, environmental, economic and social values as separate and unconnected value domains, and resources as atomistic – separate and unconnected from each other (Norgaard 1985).

In Aboriginal ontologies the human, natural and spiritual worlds are not separate domains, and rights and obligations are held by both people and things. The things themselves, elements of the natural and spiritual worlds, also have rights and obligations to fulfil under cultural law, and these rights and obligations are equal to those held by people. There are no rights of people over things, but rather a mutuality and reciprocity of rights and obligations between people and things.

People have obligations under cultural law to maintain the rights and interests of the natural and spiritual worlds, as well as the rights and interests of current and future generations of people. Cultural activities (e.g. ceremonies, hunting expeditions, maintenance of fish traps, etc.) are the exercise of these rights (‘Connecting to Country’) and obligations (‘Caring for Country’ and ‘Speaking for Country’). Thus, even though cultural activities may take place at specific sites, they are not simply ‘enjoyment’ of nature. Contemporary approaches to cultural flows based on ecosystem services or cultural heritage misrepresent the meaning of Aboriginal cultural practices and values.¹²

Much of the existing literature refers to Aboriginal cultural beliefs and practices in anthropological terms, describing variations in beliefs and practices rather than seeking to explain them in terms of social rules for regulating or managing the use of the landscape (but see Tindale 1976; Williams 1986; Rose 2013). The question for this article is whether a property rights framework is appropriate for thinking about cultural flows given Aboriginal ontologies which do not regard rights and obligations in terms of ‘property’ relations. Can we go from an understanding of customary practices – seen as an overlapping complex of rights to Country, and custodial obligations to care for Country or speak for Country – to a definition of cultural flows based on a property rights framework and compatible with the market-based approach to water resource management in the Basin? Is it legitimate to interpret customary practices through a property rights lens without undermining the inherent values of Aboriginal peoples in the Basin?

The Roman origins of many elements of contemporary property rights theory are still easily recognisable in the bundle of rights construct that, as conventionally interpreted, is now the dominant legal property rights framework (Johnson 2007). Roman law recognised concepts of private ownership (res in patrimonio), common or shared ownership (res communes), public ownership (res publicae) or lack of ownership (res nullius). Ownership of a thing meant full ownership, ‘the rights to ‘have, hold, use, enjoy, and alienate a thing’ but also drew a distinction between ownership (dominium) and possession (possessio) (Domingo 2017, 4–5). Reflecting these origins, contemporary property rights can be split into component rights. Broadly speaking these include the right to possess, the right to manage, the right to derive income, the right to capital, and the right to exclude others (Honoré 1961). Property is a series of rights and responsibilities between people in relation to things. The legal definition of property rights regards alienability as an important determinant of proprietary interest (Gray 2002). The lack of alienability of Aboriginal customary rights is one of the reasons the Australian courts have not interpreted customary rights as proprietary (Gray 2002; Williams 1986).

In the contemporary legal interpretation of property as a bundle of rights, each right in a bundle is conventionally regarded as distinct and independent of the others.¹³ This has become a central principle in applying the bundle of rights construct to issues of Aboriginal land and water rights in Australia. This is most notably the case in the development of native title which in 2000 was explicitly defined by Australia’s High Court as a bundle of rights within which each right is separable, distinct and extinguishable without affecting other rights in the bundle (Western Australia v Ward 2000, HCA 28, s109).

The conventional economic interpretation of property rights shares many similarities with the legal definition, including the recognition of bundles of distinct rights that are independent of one another. These distinct rights include rights to use a resource, to earn income, and to transfer or alienate the other rights. The conventional understanding of the bundle of rights construct is also implicit in the approach taken currently in the Basin to cultural flows. Such flows have been framed as limited or partial rights to access and use water resources in situ for a set of purposes defined to be ‘cultural’. Implicit here is an assumption that these rights are unaffected by how other rights in the bundle are defined and assigned.

Given the fundamental differences between Western and Aboriginal ways of thinking, the question arises whether a Western system of property rights generally, or of water entitlements more specifically, can accommodate Aboriginal ontologies in which no separation exists between different value domains, in which the rights and interests of non-humans and future generations of people are equal and reciprocal to those of current generations of people, and in which the rights and interests of all domains are interdependent. Is it possible to legitimately reconcile Aboriginal ontologies, with their recognition of overlapping complexes of rights to, and custodial responsibilities for, Country, on the one hand, and Western understandings of property rights on the other, in defining cultural flows in the Basin? The next section explores the scope for an alternative Western understanding of property rights to allow cultural flows to be operationalised in the Basin in ways compatible with the ontologies of its Aboriginal peoples.

An alternative Western understanding of property rights

Increasingly sophisticated understandings of property rights and other institutional options for sustainably managing water and other common-pool resources (CPRs) have emerged through the study of social-ecological systems, resilience, and common property regimes (Ostrom 1990; 2003; Poteete, Janssen, and Ostrom 2010; McKean and Ostrom 1995; Ostrom et al. 1999; Basurto and Ostrom 2009; Cole and McGinnis 2014). Of particular relevance in this literature was the distillation from numerous case studies of common property regimes of ‘a conceptual schema for arraying property-rights regimes that distinguishes among diverse bundles of rights that may be held by the users of a resource system’ (Schlager and Ostrom 1992, 249).

Common property scholars distinguish three levels of action – operational, collective-choice, and constitutional-choice actions. Operational and collective-choice rights were found to be the most relevant to common property management of CPRs (Ostrom 1990; Schlager and Ostrom 1992). The most relevant property rights at the operational level of action are ‘access’ rights (e.g. to enter a stretch of river), and ‘withdrawal’ rights (e.g. to divert water from a particular river stretch). The most relevant property rights at the collective-choice level of action are management rights (enabling regulation of access to, and/or withdrawal from, a resource system); exclusion rights (determining who holds an access right and how that right may be transferred); and alienation rights (enabling the transfer of one or both of the foregoing types of collective-choice rights).¹⁴

These five types of property rights to CPRs are distinguished in the Schlager-Ostrom schema, which represents them as held in a nested or cumulative manner by four classes of property rights holders according to the bundle of rights that they hold. ‘Authorised users’ hold operational-level property rights of access and withdrawal. ‘Claimants’ possess the same rights as authorised users plus the collective-choice right of management. ‘Proprietors’ possess the same rights as claimants plus the collective-choice right of exclusion. The final class is ‘owners’, who possess the same rights as proprietors plus the collective-choice right of alienation; i.e. all five types of property rights.¹⁵

This schema understands the bundle of rights construct differently from the conventional Western legal/economic approach. It recognises the interdependency of particular rights in a bundle with the other rights contained in that bundle. Thus, ‘[t]he exercise of withdrawal rights is not meaningful without the right of access; alienation rights depend upon having rights to be transferred’ (Schlager and Ostrom 1992, 252).

Aboriginal ontologies and the ‘cultural fit’ Western property rights thinking

Is a common property rights schema useful as a framework for thinking about cultural flows in the Basin? Can we interpret cultural governance – the complex set of overlapping territorial rights to resources, and obligations to manage or care for Country created by the interactions of kinship relationships of moiety, clan or section, and totem – through the Schlager-Ostrom common property rights schema?

The historical literature and contemporary evidence of Aboriginal customary practices show that there were clearly defined rights to access, use and/or withdraw certain resources (e.g. hunting and fishing) created through kinship and totem. Use and access rights to resources are held both by individuals and families within the estate of their own collective (e.g. clan) but also in other estates based on kinship relations and totem connection. Membership of a group with custodial responsibilities for a particular territory could be interpreted as conferring collective-choice rights of management and exclusion in respect of that territory. Exclusion rights – rights to be asked for permission to enter a territory – are exercised by senior members of custodial groups and acquired through cultural knowledge and what we might call ‘wisdom’ or cultural respect (Berndt and Berndt 1964). Alongside this territorial basis for assigning rights, membership of a kinship classification can similarly be interpreted as conferring collective-choice management rights. Holding a particular totem might thus be understood as conferring rights, and corresponding obligations, on the holder to care for the particular elements of Country – for instance, members of a particular species – identified with that totem; that is, to manage and protect them by regulating their use and managing their habitat. In these cases, the rights to manage a particular resource – to decide when certain activities should occur and when they should stop – are partially assigned to those who have totemic responsibility for that resource. A tentative mapping of customary rights into a common property rights schema is shown in Table 1.

Table 1. Preliminary mapping of customary rights into a common property rights schema.

Aboriginal customary rights and obligations				Mapping to property rights schema	Mapping to water policy framework
Customary rights	Source of rights	Holder of rights	Name of right or obligation	Property right	Holder of rights	Source of rights
Rights to hunt, fish, hold ceremony, camp	Kinship and totem	Individuals, families and clans	Connection to Country	Operational level rights – withdrawal and access rights to resource units	Water entitlement holders Some land owners	Water markets Water Resource Plans (WRP) Stock and domestic
Rights to decide when hunting or other activities can occur or must stop	Totem	Totem holders	Caring for Country	Collective choice right – management rights to the resource system, and right to decide who has operational level rights	State and Commonwealth governments	Murray Darling Basin Agreement 1992 COAG Water Reform 1994 National Water Initiative 2004 Water Act 2007 Basin Plan 2012
Right to be asked for permission to enter clan or nation territory	Cultural knowledge	Elders	Speaking for Country (right to be asked)	Collective choice right – exclusion rights to the resource system, and right to decide who has operational level rights
Ensuring the ‘right people’ are involved in decision making	Creation Ancestors Dreaming	Clans Language groups	Cultural Law (‘Law’)	Constitutional level rights – governance rights to decide who has collective choice rights	State and Commonwealth governments	The Australian Constitution

Source: Adapted from Schlager and Ostrom 1992, and FVTOC 2017.

While the Aboriginal concepts of custodial obligations and associated rights to access, use and withdraw resources appear to have some similarity to that of property rights when defined as a set of social relationships for managing resources, we nevertheless need to be careful in this interpretation. There is an important distinction between a Western understanding of property rights – including common property rights – and a customary rights framework. Property rights are rights held by people in relation to things; the things themselves do not have rights. In contrast, customary rights are not ownership rights but a web of reciprocal rights and obligations. While overlapping rights and obligations under cultural Law lead to a set of social or cultural rules that serve to regulate resource use and manage the landscape sustainably, the limits on resource use stem not from a notion of trade-off between values, but from the need to ensure that all elements of the natural and spiritual worlds are respected and can fulfil their own obligations.

The risk that translation of Aboriginal ontologies in terms of a property rights construct can change the meaning of customary relationships has to be acknowledged – ‘when putting a concept into another language we inevitably transform it’ (Thomas 2007, 4). The use of a property rights construct to interpret Aboriginal customary practices ‘re-describes Aboriginal relationships to land as ‘occupation’, ‘possession’, and ‘property’.’ (Bryan 2000, 4). Given the way in which the bundle of rights framework has been interpreted by the courts, it is also not surprising that Aboriginal and other scholars are uncomfortable with the concept of property rights as applied to Aboriginal rights. Virginia Marshall, a Wiradjuri Nyemba woman and legal scholar, acknowledges that Aboriginal customary rights do recognise relationships that can be interpreted as property rights – the rights to exclude or the rights to manage resources – and that use rights are regulated by (cultural) Law, but argues that conventional interpretation of the bundle of rights construct ‘compartmentalises cultural or legal rights as unconnected separate rights’ and is not useful for explaining Aboriginal rights and interests because ‘Aboriginal laws are not bundles of separate values’ (Marshall 2014, 122).

Given these concerns, can the inherent rights and interests of nature, or non-humans, be included in a property rights framework? It could be argued that there is no inherent legal impediment to assigning property rights to ‘things’. For example, corporations have property rights as ‘non-natural’ persons. More novel are recent legal developments in India, South America and New Zealand where rivers have been given ‘legal personhood’, a legal device whereby rivers can be given the rights, powers, duties and liabilities of a legal person (Clarke et al. 2018). These rights and duties are not property rights, but do serve to attenuate the (property) rights of other rights holders along a river. Despite the differences in legal systems, the broad parameters of legal personhood are remarkably similar in these countries. The rights of the river are represented by a guardian or loco parentis who is the human face of the river and who interacts with the regulators, other rights holders, claimants to public access rights and so on. Legal personhood seems to be a promising device by which non-human things can be assigned rights under Western law, offering a pathway to at least partially recognising the Aboriginal understanding that all things have intrinsic or inherent rights equivalent to those of humans.

Although property rights cannot be extended to non-humans except through legal devices such as ‘personhood’, can a common property rights schema offer another pathway by addressing some of the issues of cultural governance or decision making by the ‘right’ people and overcoming the problem of property rights being defined as separate unconnected rights? A property right defines a relationship between people in respect of a particular thing, but the identity of the property rights holder is immaterial. An Aboriginal worldview understands people as part of the natural and spiritual worlds, with close kinship interlinkages with those worlds through totems of different kinds. Custodial obligations and rights are framed within an understanding of these interlinkages. Under Aboriginal cultural Law, the interests of the natural and spiritual worlds are effectively represented by defined – that is, specific – people who are identified through kinship and totem. In other words, the identity of the rights holder cannot be separated from particular rights and obligations. It is a ‘core principle … that only traditional owners [can] talk for Country’ (MLDRIN 2023). Thus, legal personhood would be consistent with Aboriginal ontologies only when the ‘right’ people under cultural Law are appointed to speak for the river as its guardian. The success of legal personhood for rivers as a device for the creation of Aboriginal cultural flows in the Basin seems then to depend on the cultural correctness of the people appointed as the guardians of those interests. Hence a property rights framework for cultural flows in the Basin that prescribes corresponding rights and obligations to the ‘right’ people, as defined by kinship and totem, would seem to be reconcilable with the systems of custodial obligations, if it allows those obligations to be fulfilled by recognising and enabling cultural governance.

Governance

Governance has been defined as a process in which the institutions that guide behaviour, including rules, norms and protocols, are established and adapted (McGinnis 2011). It determines the institutional structures by which a society makes decisions (Richardson 2009). Cultural governance is about the maintenance of decision-making institutions, structures and relationships in accordance with Aboriginal cultural rules and protocols.

The extension of the Schlager-Ostrom schema to include a category of constitutional-level property rights that we call ‘governance rights’ offers a way of thinking beyond water entitlements (withdrawal rights) in looking to define cultural flows in the Basin consistently with both (a) the language of Western property rights thinking that frames much of the NWI; and (b) Aboriginal cultural values as guided by cultural Law.

Holders of governance rights have authority to devise rules prescribing the actions authorised by the holders of management rights, including rules on how management rights can be assigned. Inclusion of governance rights in the bundles of rights held by an Aboriginal group would offer its members autonomy to ensure that their complex system of custodial obligations to Country can operate by involving the ‘right’ people in making decisions. When such autonomy exists then property rights, defined as relationships between people in relation to things, could be considered to be compatible with Aboriginal ontologies because the right people with custodial obligations will be able to fulfil those obligations.

Use of the extended common property rights schema thus provides useful insights into the creation of cultural flows in the Basin through water entitlements that may be owned by Aboriginal groups. Even though customary uses of water often appear to non-Aboriginal people to be limited to some operational rights (particularly use and access rights), the evidence is that operational, collective-choice and constitutional-level (including governance) rights were all exercised under traditional cultural governance systems. Aboriginal self-governance of cultural flows can be understood through the Schlager-Ostrom schema as a bundle of interdependent property rights, constituting together a regime of common property authorising actions at the operational, collective-choice and constitutional-choice levels. This understanding is consistent with evidence from anthropologists that the overlapping rights and obligations created by kinship, including totem, connections do not confer individual or private rights, but do confer communal (Gray 2002) or joint rights (Jackson and Altman 2009) to manage Country collectively (Sutton 1996; Crowley 2003).

We argue that the conventional legal and economic interpretation of Aboriginal interests as purely use rights has misrepresented the nature of customary rights. This is one of the factors that has enabled or legitimised the stripping away of the collective-choice- and constitutional choice-level rights formerly held by Aboriginal clans and language groups. Without operational, collective-choice and constitutional-level rights, Aboriginal people cannot fulfil custodial obligations and maintain cultural governance. Aboriginal people themselves have recognised this:

We have on-going cultural responsibilities to care for Country which are difficult to fulfil with limited use and access rights to water and low participation in water resource governance. We are often viewed as just another stakeholder rather than as a partner in water management. (FVTOC 2014: 13)

What does this mean for cultural flows in the Basin? Water entitlements, as currently defined, provide use rights – that is, an operational-level right – whereby the owners of water entitlements are authorised users of a share of a water resource. A cultural flow defined as a water entitlement legally and beneficially owned by Aboriginal groups (MLDRIN and NBAN 2007) would provide use rights to water which are currently not available to Aboriginal groups in the Basin, but would still not provide them with collective-choice and constitutional-level rights. Water entitlements might provide some scope to practice water-dependent cultural activities by allowing Aboriginal groups the right to ensure that there is water ‘in the system’ – that is, a flow – but do not facilitate governance because the groups would not be able to set the rules of water use or make management decisions to enable the fulfilment of custodial obligations. This suggests that water rights for Aboriginal peoples in the Basin need to go beyond water entitlements to also include some collective-choice – management and exclusion – rights to enable input to management decisions, as well as constitutional-level rights to enable the cultural governance required to ensure that the ‘right’ people are involved in making those management decisions.

Conclusions

In this article we have used a common property rights schema to explore the issue of cultural flows for Aboriginal peoples in the Murray-Darling Basin. Such a schema is useful for positioning the issue of cultural flows within a contemporary market-based institutional framework, and allows the nature of different models of property rights for cultural flows, and the scope they offer for enabling cultural governance, to be more rigorously analyzed.

Aboriginal groups within the Basin traditionally manage resources collectively based on group rights and obligations structured around kinship, totem and custodial group (Crowley 2003; Sutton 1996). Although not regarded as property rights, customary rights and obligations under cultural law created a set of rules that regulated the use and management of the landscape.

Aboriginal people within the Basin argue that cultural flows require a degree of agency in decision making over water management in order to fulfil custodial obligations in the management of Country, and have specifically called for cultural flows through legally and beneficially owned water entitlements that would be held and managed collectively by Aboriginal groups in the Basin.¹⁶

However, property rights have a particular cultural construction. The bundle of rights construct, dominant in legal and economic thinking about property rights, is interpreted conventionally as a bundle of independent rights. This is incompatible with Aboriginal understandings of the interconnectedness of everything and thus the interdependence of all rights. Entitlements are typically referred to as ‘water rights’, but they are limited to the operational-level right to withdraw water. Defining cultural flows in terms of the conventional Western understanding of property rights as simply use rights (withdrawal rights in Schlager and Ostrom’s terminology) is unlikely to yield the beneficial cultural outcomes sought by Aboriginal peoples.

By using the more sophisticated Western understanding of property rights articulated by Schlager and Ostrom (1992) in which different types of property rights are nested interdependently, and by extending the bundle of rights concept to encompass management and governance rights at the collective-choice and constitutional-choice levels of action, respectively – effectively reinterpreting the concept as a bundle of interdependent rights – the value of water entitlements for Aboriginal peoples in the Basin can be greatly enhanced. We use this schema to suggest that water entitlements would enable the practice of some water-dependent cultural activities by providing an operational-level right to a water flow that Aboriginal groups do not currently have, but that meaningful cultural flows require a bundle of interdependent rights that confers, in addition to entitlements, some collective-choice (management) rights, and some constitutional-level (governance) rights.

Acknowledgements

The authors would like to sincerely thank Jason Wilson and Ted Fields Jr for bringing this topic to our attention. We are deeply grateful to Jason and Ted, as well as Ricky Fields, Brenda McBride, Rhonda Ashby and George Fernandez of the Euhlaroi; Danielle Flakelar, Tom Carney and Shirley Stroud from the Wayilwan (Weilwan); and Fred Hooper from the Murrawarri for their generosity in spending so much time sharing their cultural knowledge.

Comments on earlier drafts of the paper by Neil Byron; Oscar Cacho and David Hadley; the handling editor and anonymous reviewers for this journal; and participants at the 16th Biennial Conference of the International Association for the Study of the Commons, Utrecht, Netherlands, 10–14 July 2017 are gratefully acknowledged. All remaining errors and omissions remain the responsibility of the authors.

Financial support for the lead author was received from the UNE Strategic Directions Scholarship, and the Keith & Dorothy Mackay Postgraduate Travelling Scholarship.

Disclosure statement

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

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1 Whether water is consumptive or non-consumptive is an issue of water use and whether that use is extractive (requiring diversion from the water course) or non-extractive (used in-stream). This is a separate issue to that of the nature of rights or entitlements by which water is held. Currently, environmental water can be either ‘planned’ (that is, regulated but unlicensed) or ‘held’ (that is, allocated to users through entitlements or other forms of licensing).

2 Language forms the boundary between different groups. Many but not all language groups comprise several clans, and these clans may speak dialects or closely related languages. A colloquial term ‘mob’ is used to refer to either clans or language groups.

3 National Cultural Flows Research Project 2021 (www.culturalflows.com).

4 NSW is the only state that has made formal provision for Aboriginal participation in water planning (NWC 2014) or to have provided water allocations for native title. The outcomes from Aboriginal water allocations have been limited (Duff, Delfau and Durette 2010; Jackson and Langton 2012). The allocation of water to native title holders has also been negligible, and determined on the basis of a domestic household water requirement rather than the amount that might appropriately be required to satisfy a native title or cultural requirement (Tan and Jackson 2013).

5 Also known as Aranda people.

6 Different parts of the Basin also have different eco-hydrologic characteristics, making customary practices location- and culture-specific. The purpose of this article is to provide some general insights into the use of a property rights framework rather than specific design details for water entitlements, which would need to take specific location and cultural differences into account.

7 Language groups in eastern Australia tend to be matrilineal, meaning that primary rights to an estate is inherited from the mother. Inland or desert language groups are more likely to be patrilineal, with primary rights inherited from the father. Clan totems, however, are passed on according to a complex set of rules (Parker 1905; Ridley 1873; Bellos 2018).

8 Keen (2004) noted that clans have also been referred to as country groups, local descent groups, and estate groups. Aboriginal peoples in all seven regions that he studied across the continent were found to be organised by way of some sort of clan, or country group, structure.

9 Williams (1986) also describes the practice amongst the Yolngu people of Arnhem Land of ‘lending’ and ‘giving’ the rights to parts of estates to other clan members to ‘look after’ (p. 78).

10 The term ‘resource’ infers a utilitarian value in which the value of a thing derives from its transactional value to people. For Aboriginal people, things are not solely resources – their value is not solely by virtue of their utility to people, they also have their own intrinsic or inherent value with their own agency and rights and obligations.

11 Referred to as Aranda people by Pink.

12 The incorporation of shared or communal values within a cultural ecosystem service (CES) framework is an important development (see for example, Irvine et al. 2016; Kenter et al. 2015), but does not address the issue being raised here, which is that a CES framework only captures the values of ecosystem services to people, not the inherent values that are central to Aboriginal ontologies.

13 Smith (2011) notes that a legal bundle of rights framework could take the interaction between different rights into account, but that conventionally it does not. The legal framework thus conventionally treats each right in the bundle of rights as separate and distinct, such that they can be held by separate individuals or entities, and can be separately extinguished, without affecting the other rights.

14 In economics, the right to alienate is conventionally seen as a necessary component of an effective property right (Ostrom and Hess 2010). Schlager and Ostrom (1992) found however, that alienation rights are not necessary for an effective property rights system to operate.

15 Note that water entitlements in the Basin are operational-level rights, and the ability to sell water entitlements is simply a right to transfer ownership of this operational-level right. Entitlement holders are authorized users and can transfer their operational-level rights, but do not have (and cannot transfer) collective-choice (management or exclusion) rights (see for example Schlager and Ostrom 1992: 252). Hence the right to sell water entitlements in the Basin is not an alienation right.

16 The design of entitlements is also important. Current entitlements have been specifically designed for extractive water use by individuals (mainly irrigators). It is not clear whether they lend themselves to communal or collective management by Aboriginal groups (or indeed, other groups) for predominantly instream or non-extractive uses. The issue of entitlement design is an important one, but is beyond the scope of this article. For example, see Mallawaarachchi et al. 2020.