Old knowledge in freshwater: Why traditional ecological knowledge is essential for determining environmental flows in water plans

Australasian Journal of Natural Resources Law and Policy

Volumn 14, Issue 2, 2011, Pages 71-114

  Cranney, Kate ^a   Tan, Poh Ling ^a  

^a GRIFFITH UNIVERSITY   (Australia)

Author keywords

Australia; Indigenous participation; Queensland; Traditional ecological knowledge; Water management; Water planning

Indexed keywords

EID: 84865122190     PISSN: 13205323     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (446)

1. Nerida Blair, 'Darkinjung: Our People and the NSW Supreme Court 1820 to 1840' (Paper presented at the Australia and New Zealand Law and History Society (ANZLHS) conference, Australian National University, 2000), cited.
2. Jennifer McKay, 'Onshore Water Project: Briefing Paper' in Background Briefing Papers: Indigenous Rights to Water (Lingiari Foundation, 2002) 25, 25.
3. Sue Jackson, 'National Indigenous Water Planning Forum: Background Paper on Indigenous Participation in Water Planning and Access to Water' (Research Report, CSIRO Sustainable Ecosystems, February 2009) 3.
4. Richard Baker, Jocelyn Davies and Elspeth Young (eds), Working on Country: Contemporary Indigenous Management of Australia's Lands and Coastal Regions (Oxford University Press, 2001) 14.
5. Angela H Arthington and Bradley J Pusey, 'Flow Restoration and Protection in Australian Rivers' (2003) 19 River Research and Applications 377, 378.
6. Council of Australian Governments, 'Intergovernmental Agreement on a National Water Initiative' (2004) (hereafter referred to as the NWI).
7. See NWI cls 20, 35, 52. These provisions will be discussed later in this article.
8. Poh-Ling Tan, 'National Indigenous Water Planning Forum: A Review of the Legal Basis of Indigenous Access to Water' (Research Report, Griffith University, February 2009) 39.
9. See Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 39
10. Sue Jackson, Poh-Ling Tan and Jon Altman, 'Indigenous Fresh Water Planning Forum: Proceedings, Outcomes and Recommendations' (Research Report, National Water Commission, March 2009)
11. National Water Commission, 'Update of Progress in Water Reform: Input into the Water Sub Group (WSG) Stocktake Report' (Progress Report, National Water Commission, 15 February 2008) 4.
12. Though Arnstein's 'Ladder of Citizen Participation' was published in 1969, it remains a valuable reference for the degree of citizen power afforded by various forms of participation. In terms of Arnstein's ladder, the type of participation we propose is more than information dissemination and less than full 'citizen control'.
13. See Sherry R Arnstein, 'A Ladder of Citizen Participation' (1969) 35 Journal of the American Institute of Planners 216.
14. Henry P Huntington, 'Using Traditional Ecological Knowledge in Science: Methods and Applications' (2000) 10 Ecological Applications 1270.
15. See Part I and IV of this article.
16. See Andrew Campbell, The Australian Natural Resource Management Knowledge System (Land and Water Australia, 2006).
17. Poh-Ling Tan et al, 'Collaborative Water Planning: Context and Practice' (Literature Review vol 1, Tropical Rivers and Coastal Knowledge, September 2008).
18. Sue Jackson, 'Indigenous Values and Water Resource Management: A Case Study from the Northern Territory' (2005) 12 Australasian Journal of Environmental Management 136, 143
19. Jackson, Tan and Altman, above n 8, 22.
20. Queensland Government, Queensland's National Water Initiative State Implementation Plan (2006) 26.
21. The importance of a contextual understanding of Indigenous water interests was highlighted in Jackson, Tan and Altman, above n 8, 7
22. Sue Jackson and Cathy Robinson, 'Indigenous Participation in Water Planning and Management' in Northern Australia Land and Water Science Review Full Report (CSIRO, October 2009) 1, 6.
23. See Veronica Strang, 'Waterworks: Agency and Creativity in the Mitchell River Catchment' (2005) 16 Australian Journal of Anthropology 366
24. Carpentaria Ghost Nets Program, Kowanyama Aboriginal Land and Natural Resource Management Office, Partner Profile .
25. For an understanding of the term 'country' in an Indigenous sense, see Deborah Bird Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness (Australian Heritage Commission, 1996) 7.
26. In August 2010, Kate Cranney joined researchers from Tropical Rivers and Coastal Knowledge ('TRaCK'), a Commonwealth research body, to participate in a Cultural Awareness Program run by the Mitchell River Traditional Custodian Advisory Group ('MRTCAG') in Kuku Djungan country in the catchment. Interviews were conducted with three MRTCAG members: Sharon Brady (Kuku Yalanji), Matthew Brady (Kuku Yalanji) and Troy Grainer (Kuku Djungan). These participants have a wealth of traditional water knowledge and a history of interaction with Western science. Sharon is the chair of MRTCAG and is studying a Bachelor of Commerce at Deakin University, Victoria; Matthew is studying Natural Resource and Cultural Management at Deakin University; and Troy is a Director of the Kuku Djungan Aboriginal Corporation.
27. See Melanie Durette, 'Indigenous Legal Rights to Freshwater: Australia in the International Context' (Working Paper No 42, Centre for Aboriginal Economic Policy Research, 2008)
28. Jon Altman and Bill Arthur, 'Water Licences and Allocations to Indigenous People for Commercial Purposes: An Australia-wide Scoping Exercise. Report Prepared for the National Water Commission' (Report, Centre for Aboriginal Economic Policy Research, February 2009)
29. Jon Altman, 'Economic Development and Indigenous Australia: Contestations over Property, Institutions and Ideology' (2004) 48 Australian Journal of Agricultural and Resource Economics 513.
30. For Indigenous offshore water rights, see National Oceans Office, 'Living on Saltwater Country: Review of Literature about Aboriginal Rights, Use, Management and Interests in Northern Australian Marine Environments' (Background Paper, 2004)
31. Rachel Armstrong, An Overview of Indigenous Rights in Water Resource Management (Lingiari Foundation and the North Australian Indigenous Land and Sea Management Alliance (NAILSMA), revised ed, 2008) 14.
32. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7.
33. Durette, above n 20, 41
34. Productivity Commission, 'Water Rights Arrangements in Australia and Overseas' (Research Paper, Productivity Commission, 2003) 59.
35. Lee Godden, 'Indigenous People's Rights to Water: Environmental Flows, Cultural Values and Tradable Property Rights in Australia' (Paper presented at the Indigenous Peoples' Legal Water Forum, Wellington, New Zealand, 27 July 2009) 5.
36. Daniel Connell, Stephen Dovers and R Quentin Grafton, 'A Critical Analysis of the National Water Initiative' (2005) 10 Australasian Journal of Natural Resources Law and Policy 81, 83.
37. See also Daniel Connell, Lisa Robins and Stephen Dovers, 'Delivering the National Water Initiative: Institutional Roles, Responsibilities and Capacities' in Karen Hussey and Stephen Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges (CSIRO Publishing, 2007) 127.
38. With Tasmania and Western Australian joining in June 2005 and April 2006 respectively: National Water Commission (NWC), National Water Initiative (2010) .
39. See NWI, 3.
40. NWI cl 28.
41. The NWC's role is to provide advice to COAG on national water issues and, in particular, to assist with the effective implementation of the NWI (NWI sch C). The NWC also actively promotes the recognition of Indigenous values in water. This is demonstrated by their funding of the Indigenous Water Policy Group, the Indigenous Water Forum and socio-economic research projects in Northern Australia, including TRaCK and the Northern Australian Water Futures Assessment (NAWFA), both of which include research into Indigenous water values.
42. See National Water Commission, Indigenous Water Management (2011) .
43. Alex Gardner, Richard H Bartlett and Janice Gray, Water Resource Law (LexisNexis Butterworths, 2009) 45.
44. Sue Jackson, 'Indigenous Interests and the National Water Initiative (NWI): Water Management, Reform and Implementation' (Background Paper and Literature Review, CSIRO Sustainable Ecosystems, October 2007) 17.
45. Including the development of market mechanisms; including water trading; greater security of water entitlements; the separation of water property rights from land; repairing over-allocated or stressed water systems; the recognition of groundwater and surface water connectivity; the management of urban water demands; the introduction of water registers and standards for water accounting and improved pricing for water storage and delivery: see NWC, National Water Initiative (2010), above n 26.
46. Agricultural and Resource Management Council of Australia and New Zealand (ARMCANZ) and Australian and New Zealand Environment and Conservation Council (ANZECC), 'National Principles for the Provision of Water for Ecosystems' (Occasional Paper No 3, ARMCANZ and ANZECC, July 1996).
47. National Water Commission, Water for the Environment and Water Reform (2009)
48. Arthington and Pusey, above n 4, 378
49. Nick Schofield, Alana Burt and Daniel Connell, Environmental Water Allocation: Principles, Policies and Practices (Land and Water Australia, 2003) 15ff .
50. The NWC identified three other environmental water provisions, that parties were to: establish accountable environmental water managers; ensure cost-effective measures to provide water for environmental outcomes; and plan for the recovery of water for the environment in overallocated surface and groundwater systems: NWC, National Water Initiative (2010), above n 26.
51. Along with mitigating pollution, public health (eg, limiting noxious algal blooms), recreation, fisheries, tourism, navigation and amenity values': NWI sch B(ii).
52. NWI cl 35(ii)
53. see also Alex Gardner and Kathleen Bowmer, 'Environmental Water Allocations and their Governance' in Karen Hussey and Stephen Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges (CSIRO Publishing, 2007) 43
54. Anthony Ladson and Brian Finlayson, 'Specifying the Environment's Right to Water: Lessons from Victoria' (2004) 23 Dialogue 19.
55. Other States, such as Victoria and NSW, hold environmental water as a water access entitlement: see Victorian Government, Victoria's National Water Initiative Implementation Plan (2006) 10
56. New South Wales Government, NSW Implementation Plan for the National Water Initiative (2006) 15.
57. An environmental water allocation must have the same degree of security as consumptive use entitlements: NWI cl 35(i).
58. An Environmental Water Provision (or allocation) has been defined as 'water allocated to support the ecological functioning of aquatic and other dependent habitats based on environmental, social and economic considerations, including existing user rights': Australian Government, Water - Glossary (2010) Australian Natural Resources Atlas .
59. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 11.
60. The 1992 National Strategy for Ecological Sustainable Development (NSESD) first introduced the concept of environmental allocations, with governments committed to ensuring 'the maintenance of in-stream and floodplain environmental values, including through development and implementation of more effective legal and policy frameworks': Department of Environment Sports and Territories, National Strategy for Ecologically Sustainable Development (December 1992).
61. Productivity Commission, 'Rural Water Use and the Environment: The Role of Market Mechanisms' (Research Report, Productivity Commission, 11 August 2006) XVIII.
62. Department of Environment and Resource Management (DERM), Far North Queensland Regional Water Supply Strategy (DERM, Queensland Government, 2010).
63. Jon Altman, 'Indigenous Interests in Land and Water' in Northern Australia Land and Water Science Review Full Report (CSIRO, October 2009) 5.
64. Jackson, Tan and Altman, above n 8, 3.
65. This article will not consider other aspects of the NWI relating to Indigenous rights, ie clauses 53 and 54 or other NWI Indigenous provisions that relate water trading: see sch G para 3(v).
66. For native title and water, see Elliott Johnston, Martin Hinton and Daryle Rigney (eds), Indigenous Australians and the Law (Cavendish Publishing, 2nd ed, 2008).
67. Altman, 'Indigenous Interests in Land and Water', above n 45.
68. Jackson, 'Background Paper on Indigenous Participation in Water Planning and Access to Water', above n 2.
69. Tim Fisher, 'Water Sustainability or Sell-out? The National Water Initiative in Perspective' 2004 (Autumn) Australian Options 20, cited.
70. Sue Jackson, 'Indigenous Interests and the National Water Initiative (NWI): Water Management, Reform and Implementation' (Background Paper and Literature Review, CSIRO Sustainable Ecosystems, October 2007) 62.
71. Jackson, 'Indigenous Interests and the National Water Initiative', above n 31, 64.
72. Kim S Alexander and John Ward, 'The Current Status of Water Governance in Northern Australia: Progress towards the Goals of the National Water Initiative' in Northern Australia Land and Water Science Review Full Report (CSIRO, October 2009) 3.
73. Jennifer McKay and Henning Bjornlund, 'Recent Australian Market Mechanisms as a Component of an Environmental Policy that Can Make Choices between Sustainability and Social Justice' (2002) 14 Social Justice Research 387, 393.
74. See also, Godden, above n 24, 6.
75. NWI cls 52(i)-(ii).
76. Jackson, 'Indigenous Interests and the National Water Initiative', above n 31, 64.
77. Durette, above n 20, 33.
78. Altman, 'Indigenous Interests in Land and Water', above n 45, 9.
79. Sue Jackson, 'Recognition of Indigenous Interests in Australian Water Resource Management, with Particular Reference to Environmental Flow Assessment' 2 Geography Compass (2008) 874, 877.
80. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 14.
81. Ibid 13.
82. NWI sch A.
83. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 39.
84. National Water Commission, Australian Water Reform 2009: Second Biennial Assessment of Progress in Implementation of the National Water Initiative (2009) 26.
85. Jackson, Tan and Altman, above n 8, 12.
86. World Commission on Dams, Dams and Development: A New Framework for Decisionmakers - The Report of the World Commission on Dams (Earthscan, 2000) 112, 216-19, 281.
87. See also David Groenfeldt, 'The Future of Indigenous Values: Cultural Relativism in the Face of Economic Development' (2003) 35 Futures 917, 925.
88. UNESCO-IHP Expert Advisory Group on Water and Cultural Diversity, 'Mainstreaming Cultural Diversity in Water Resources Management' (Policy Brief, UNESCO-IHP, 2009).
89. Australia was originally one of four nations voting against the text, along with Canada, the United States and New Zealand: UN News Service, United Nations Adopts Declaration on Rights of Indigenous Peoples, UN News Service (13 September 2007) UN News Centre .
90. Mauro Barelli, 'The Role of Soft Law in the International Legal system: In the Case of the United Nations Declaration on the Rights of Indigenous Peoples' (2009) 58 International and Comparative Law Quarterly 957, 961.
91. Megan Davies, 'Indigenous Struggles in Standard Setting: The United Nations Declaration on the Rights of Indigenous Peoples' (2008) 9 Melbourne Journal of International Law 439, 440
92. Kiri Rangi Toki, 'What a Difference a 'DRIP' Makes: The Implications of Officially Endorsing the United Nations Declaration on the Rights of Indigenous Peoples' (2010) 16 Auckland Law Review 243, 261.
93. See also Barelli, above n 69.
94. Mick Gooda, Statement by the Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda, Australian Human Rights Commission (at the Expert Mechanism on the Rights of Indigenous Peoples, Geneva, 12-16 July 2010.
95. Barelli, above n 69, 976.
96. See especially articles 19, 25, 26 and 32 of the United Nations Declaration on the Rights of Indigenous People, GA Res 61/295, Annex UN Doc No. A/RES/61/295 (13 September 2007).
97. See Geraldine Gentle and Chris Olszak, 'Water Planning: Principles, Practices and Evaluation' in Karen Hussey and Stephen Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges, (CSIRO Publishing, 2009) 59.
98. See generally Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7.
99. DERM, Mitchell River Catchment (20 April 2010) DERM Queensland Government, .
100. See Geoffrey Kuhn, Report of the History (since European Settlement) and Cultural Heritage Values of the Julatten-Mount Molloy-Mareeba Stockroute and Associated Reserves (2001)
101. Henry Reynolds (ed), Race Relations in North Queensland (James Cook University, 1978)
102. Geof Genever, Failure of Justice: The Story of the Irvinebank Massacre (Eacham Historical Society, 1996) 16.
103. Strang, above n 17.
104. Hydrobiology Pty Ltd, 'Department of Natural Resources and Mines: Ecological and Geomorphological Assessment for the Gulf and Mitchell Water Resources Plan Final Report' (Research Report, 2005) 11, 217.
105. For more detail, see the following publications: Northern Gulf Resource Management Group ('NGRMG'), A Natural Resource Management Plan for the Northern Gulf Region 2008-2013 (NGRMG, 2008)
106. CSIRO, 'Water in the Mitchell Region of the Gulf of Carpentaria Drainage Division'.
107. CSIRO, 'Water in the Gulf of Carpentaria Drainage Division: A Report to the Australian Government from the CSIRO Northern Australia Sustainable Yields Project' (Research Report, National Water Commission, August 2009) 358
108. Mitchell River Watershed Management Group (MRWMG), About the Catchment
109. Glen Moller, Denise Johnson and Natasha Van Manen, State of the Rivers: Mitchell River and Major Tributaries: An Ecological and Physical Assessment of the Condition of Streams in the Mitchell, Lynd, Palmer, Walsh and Alice River Catchments (Department of Natural Resources and Mines, 2002).
110. Department of Natural Resources and Water ('DNRW'), Mitchell Water Resource Plan Consultation Report (DNRW, Queensland Government, 2008) 4.
111. Strang, above n 17, 366.
112. CSIRO, above n 79.
113. The mean annual areal potential evapotranspiration is 1905mm: CSIRO, above n 79, 351.
114. From December until the end of March: DNRW, Mitchell WRP Consultation Report, above n 80.
115. DNRW, Mitchell WRP Consultation Report, above n 80.
116. CSIRO, above n 79, 372.
117. Completed in the 1950s, Lake Tinaroo has allowed the upper catchment to be 'viable for agriculture, horticulture and small scale cattle farming': CSIRO, above n 79, 360.
118. Although the upper reaches of the Mitchell and Walsh rivers fall within the catchment, they are an intrinsic part of the Mareeba Dimbulah Water Supply Scheme and are dealt with under the Water Resource (Barron) Plan 2002 (Qld): DNRW, Mitchell WRP Consultation Report, above n 80, 4.
119. This is the largest dam in the catchment, known as 'Lake Mitchell', 'Quaid's Dam' or 'Southedge Dam'.
120. There are three other major water storages in the catchment, with all four totaling 140 GL capacity: CSIRO, above n 79, 372.
121. Moller, Johnson and Van Manen, above n 79, i.
122. MRWMG, About the Catchment, above n 79.
123. Numerous aquatic ecosystems fall within the catchment including 'soaks and springs, offstream and instream billabongs, riffles and pools, temporary and permanent wetlands, dams, weirs, bores, drains and groundwater systems: NGRMG, above n 79, 38.
124. CSIRO, above n 79, 353.
125. NGRMG, above n 79, 37.
126. TRaCK, 'Waterhole Foodwebs: Foodwebs and Biodiversity' (Fact Sheet No 2, Australian Government) 2009.
127. CSIRO, above n 79, 350.
128. Sarah Connor et al, 'Mitchell River Catchment: Regional Perspective' in Northern Australian Land and Water Science Review Full Report (CSIRO, October 2009) 6.
129. Ibid 13
130. CSIRO, above n 79, 50
131. Hydrobiology Pty Ltd, above n 79, 217
132. NGRMG, above n 79.
133. NGRMG, above n 79, 7.
134. Bruno David, 'Nurrabullgin Cave: Preliminary Results from a Pre-37,000 Year Old Rock Shelter, North Queensland' (1993) 18 Archaeology in Oceania 50
135. Bruno David (ed), Ngarrabullgan: Geographical Investigations in Djungan Country, Cape York Peninsula (Monash University, 1998).
136. MRWMG, About the Catchment, above n 79
137. Strang, above n 17.
138. Kuhn writes that 'the term "dispersed" in the literature and police dispatches when made in reference to dealing with Aboriginal people was, in fact, code for killing Aboriginal people': Kuhn, above n 77, 12.
139. Timothy Bottoms, Djabugay Country: An Aboriginal History of Tropical North Queensland (Allen & Unwin, 1999)
140. Raymond Evans, Raymond Saunders and Kathryn Cronin, Race Relations in Colonial Queensland: A History of Exclusion, Exploitation and Extermination (University of Queensland Press, 3rd ed, 1993) 45, 145
141. Noel Loos, Invasion and resistance: Aboriginal-European Relations on the North Queensland Frontier, 1861-1897 (Australian National University Press, 1982)
142. Reynolds, above n 77
143. Jonathan Richards, The Secret War: A True History of Queensland's Native Police (University of Queensland Press, 2008)
144. Judy Thomson (ed), Reaching Back: Queensland Aboriginal People Recall Early Days at Yarrabah Mission (Aboriginal Studies Press, 1989).
145. Silva Larson and Kostas Alexandridis, Socio-economic Profiling of Tropical Rivers, TRaCK (TRaCK Research Hub, Land and Water Australia, 2009) at 14 July 2010.
146. Strang, above n 17, 367.
147. Ibid 371.
148. Moller, Johnson and Van Manen, above n 79, 2.
149. CSIRO, above n 79, 360.
150. Moller, Johnson and Van Manen, above n 79, 4.
151. CSIRO, above n 79, 360
152. MRWMG, About the Catchment, above n 79.
153. MRWMG, About the Catchment, above n 79.
154. DERM, Declared Wild Rivers Areas (7 September 2010) DERM, Queensland Government, .
155. DNRW, Mitchell WRP Consultation Report, above n 80, 8.
156. This is despite the fact that the catchment has a large Indigenous population, with a 'hybrid' economy that depends heavily on water.
157. See Altman, 'Indigenous Interests in Land and Water', above n 45, 6.
158. See Hydrobiology Pty Ltd, above n 79, 219.
159. When asked whether they have noticed any changes in the Mitchell River catchment, Troy said: '[A] lot of changes in the past five to ten years before you could go down to the [Eastern Hodgkinson] river and swim - it was deep and cold enough hunting and diving before [then] mining came into it that illegal dam near the camp and all the tailings sediments [now] no wildlife.' Sharon replied that there were 'big changes', that, for example, 'people have been saying they're not catching certain fish or red claw [crawfish].' Interview with Sharon Brady and Troy Grainer (Kondapringa Station, 14 August 2010).
160. Moller, Johnson and Van Manen, above n 79, 10.
161. Found at 8% of sites: Moller, Johnson and Van Manen, above n 79, 15.
162. Mining and the runoff from abandoned mines affects water quality: Tad Bartareau, Glenn Barry and Dean Biddle. Impact of Abandoned Mines on Sediment and Water Quality in the Mitchell River Watershed, North Queensland (Report for the National Landcare Program, Queensland Department of Natural Resources, 1998).
163. Andrew Brooks et al, 'Sediment Dynamics in the Mitchell Catchment' (Paper presented at the Palmer River Forum, Mareeba, Queensland, 2008).
164. Exotic plants were identified at 77% of survey sites: Moller, Johnson and Van Manen, above n 79.
165. T J Ryan, G Aland and A L Cogle, Environmental Condition of the Upper Mitchell River System: Water Quality and Ecology (Report for the Natural Heritage Trust, Queensland Department of Natural Resources and Mines, 2002).
166. Such as feral pigs (Sus scrofa) and tilapia (Oreochromis mossambicus and Tilapia mariae), which are rated as one of the 'top 100' of the world's worst introduced species and one of the greatest threats to Australia's native freshwater biodiversity: Department of Employment, Economic Development and Innovation, Handy Identification Tips - tilapia, The State of Queensland (28 August 2010) .
167. Vern Veitch, Damien Burrows and Alan Webb, Distribution of Mozambique Tilapia in the Burdekin River Catchment, North Queensland 2006 Survey (Report No 06/29, December 2006) .
168. Ian Webb, 'Salinity Risk in the Cattle Creek Sub-catchment of the Mitchell River, Queensland' (Research Paper, Department of Natural Resources, Mines and Water, 2005).
169. NGRMG, above n 79, 40.
170. Due to restrictions to fish migration, for example: NGRMG, above n 79, 40.
171. TRaCK, Waterhole Foodwebs, above n 95.
172. NGRMG, above n 79, 41.
173. DNRW, Mitchell WRP Consultation Report, above n 80, 4.
174. Under the Water Resource (Mitchell) Plan 2007 (Qld): the Strategic Reserve is limited to 10 GL (s 30); the Indigenous Reserve is set at 5 GL (s 28) and the total General Reserve is 55 GL (ss 33-34).
175. John Ward et al, 'A Robust Framework for Sharing Water in Northern Australia' in Northern Australia Land and Water Science Review Full Report (CSIRO, October 2009) 37.
176. Hydrobiology Pty Ltd, above n 79, 247. This assessment stated that this conservative approach was recommended due to the 'current state of a general lack of detailed knowledge of ecosystem composition, function and water requirements at the local scale'.
177. Provisions pertaining to Indigenous water rights and environmental allocations are found in other pieces of Queensland's legislation, including the Aboriginal Cultural Heritage Act 2003 (Qld), the Wild Rivers Act 2005 (Qld) (WRA), and the Cape York Peninsular Heritage Act 2007 (Qld).
178. Water Act 2000 (Qld) s 19.
179. Water Act 2000 (Qld) s 10(1)
180. Fisher, 'Water Sustainability or Sellout', above n 50, 116.
181. DERM, Water Resource Planning (7 September 2010) DERM, Queensland Government .
182. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 26.
183. National Farmers' Federation, Submission to COAG, COAG Consultation Draft NWI Policy Guidelines for Water Planning & Management, 12 February 2010, 8.
184. NWI sch B(ii).
185. NAILSMA, 'A Policy Statement on North Australian Indigenous Water Rights' (Policy Statement, NAILSMA and the Indigenous Water Policy Group, November 2009).
186. Cultural flows have been described by the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) as: water entitlements that are legally and beneficially owned by the Indigenous Nations, [and] of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations.
187. MLDRIN, 'Submission to the Natural Resources Commission of NSW Riverina Bioregion Regional Forest Assessment River Red Gums and Woodland Forests. Response to Preliminary Assessment Report' (October 2009) 23.
188. Jessica Weir, Murray River Country: An Ecological Dialogue with Traditional Owners (PhD thesis, Australian National University, 2007) 238
189. Jason Behrendt and Peter Thompson, 'The Recognition and Protection of Aboriginal Interests in New South Wales Rivers' (2004) 3 Journal of Indigenous Policy 37
190. Monica Morgan, Lisa Strelein and Jessica Weir, 'Authority, Knowledge and Values: Indigenous Nations Engagement in the Management of Natural Resources in the Murray-Darling Basin' in Langton et al (eds), Settling with Indigenous People: Modern Treaty and Agreement-Making (Federation Press, 2006) 150.
191. Brad Moggridge, Aboriginal Water Knowledge & Connections (22 June 2010) CSIRO .
192. National Water Commission, National Competition Policy Assessment of Water Reform Progress (2005) XIII.
193. Water Act 2000 (Qld) s 10(2)(c)(v)
194. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 13.
195. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 23.
196. Mitchell WRP s 12(j).
197. Jackson, 'Background Paper on Indigenous Participation', above n 2, 37.
198. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 26.
199. Water Act 2000 (Qld) s 41(a)-(b).
200. Tan, 'A Review of the Legal Basis of Indigenous Access to Water', above n 7, 39.
201. Gardner, Bartlett and Gray, above n 30.
202. Note that there has not been a great deal of comparative research on how Australian states and territories have legislated for Indigenous inclusion in water planning.
203. Jonathon Howard, 'Do Stakeholder Committees Produce Fair Policy Outcomes?' (Paper presented to the 5th Australian Stream Management Conference: Australian Rivers: Making a Difference, Albury, 21-25 May 2007).
204. Blair E Nancarrow, Geoffrey J Syme and Janet A McCreddin, 'The Development of Stakeholder-based Principles for Defining Environmental Flows in Modified Rivers: A Report to the Land and Water Resources R&D Corporation' (Research Report No 98.25, CSIRO Land and Water Consultancy Report, 1998)
205. Blair E Nancarrow and Geoffrey J Syme, 'Environmental Flow and Water Quality Objectives for the River Murray Project: Stakeholder Profiling Study' (Profiling Study, Murray-Darling Basin Commission, 2001)
206. Henk Wilke, 'Greed, Efficiency and Fairness in Resource Management Situations' (1991) 2 European Review of Social Psychology 165.
207. Larissa Behrendt and Loretta Kelly, Resolving Indigenous Disputes: Land Conflict and Beyond (Federation Press, 2008)
208. Marcus Lane, 'Aboriginal Participation in Environmental Planning: The Importance of Social Organisation' (1997) 25 Australian Geographical Studies 308.
209. Jackson, 'Indigenous Interests and the National Water Initiative', above n 31, 92 for an overview of other factors to be considered during Indigenous representation.
210. MRWMG, 'Summary of Submission Recommendations' (MRWMG, 2006) 4
211. Gundabooka Consultancy Pty Ltd, 'Indigenous Involvement in Natural Resources Planning and Management in the Queensland Murray Darling Basin and South West NRM Region' (Research Report, Gundabooka Consultancy Pty Ltd, 2003).
212. Interview with Sharon Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
213. NGRMG, above n 79, 50.
214. Godden, above n 24, 11.
215. Jackson, 'Indigenous Interests and the National Water Initiative', above n 31, 90.
216. Bardy McFarlane, 'The National Water Initiative and Acknowledging Indigenous Interests in Planning' (Paper presented to the National Water Conference, Sydney, 29 November 2004) 12.
217. Jackson, 'Background Paper on Indigenous Participation', above n 2, 35.
218. John Mackenzie, 'Water Planning in the Gulf of Carpentaria' (Retrospective Case Studies No 4.1, Tropical Rivers and Coastal Knowledge, September 2008) 52.
219. Including Kuku Djungan, Sunset Yalanji, Kunjen and Yir Yiront, Kunjen, Barbaram and Bulimba: Queensland Environment Groups (QEG), Draft Mitchell Water Resource Plan: Queensland Environment Groups' Submission, 2006, 8
220. Letter from Hilary Kuhn to Michelle Wood, 30 October 2006
221. MRWMG, 'Submission Summary', above n 157, 4.
222. Department of Natural Resource and Water (DNRW), Mitchell Draft Water Resource Plan Community Reference Panel Report (2006) 2.
223. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
224. QEG, above n 166
225. Letter from Hilary Kuhn to Michelle Wood, 30 October 2006.
226. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 26.
227. An Indigenous working group was also established for the Water Allocation and Management Plan (Condamine-Balonne Basin): Mark Hamstead, Claudia Baldwin and Vanessa O'Keefe, 'Water Allocation Planning in Australia - Current Practices and Lessons Learned' (Occasional Paper No 6, NWC, 2008) 55.
228. Water Resource (Burnett Basin) Plan 2000 (Qld) s 27
229. Hamstead, Baldwin and O'Keefe, above n 172, 55.
230. Mackenzie, above n 164, 53. It is difficult to conceive of a WRP area in Queensland that does not have more than one Traditional Owner group.
231. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
232. Mareeba, Kowanyama, Palmer River, Chillagoe, Normanton, Cairns and Undara: DNRW, Mitchell WRP Consultation Report, above n 80, 13.
233. Meetings discussed matters including: an Indigenous consultation strategy and preferred engagement methods and times; the technical assessment panel report; identification of waterrelated assets of cultural significance; the draft WRP provisions and issues of importance to traditional owners: DNRW, Mitchell WRP Consultation Report, above n 80, 13.
234. QEG, above n 166, 8.
235. Letter from Hilary Kuhn to Michelle Wood, 30 October 2006.
236. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
237. Letter from Hilary Kuhn to the Honourable Craig Wallace, 28 November 2006.
238. Under the Wild Rivers Act 2005 (Qld).
239. For more on Wild Rivers legislation see: Prue Gusmerini, 'The Wild Rivers Act 2005 (Qld)' (2006) 6 Indigenous Law Bulletin 51
240. Mackenzie, above n 164
241. Jackson et al, above n 2, 17
242. Jackson, 'Background Paper on Indigenous Participation', above n 2, 37
243. Meg McLoughlin and Melissa Sinclair, 'Wild Rivers, Conservation and Indigenous Rights: An Impossible Balance?' (2006) 6 Indigenous Law Bulletin 2.
244. CYPHA s 7
245. DERM, Mitchell Resource Operations Plan Consultation Report (DERM, 2009) 5.
246. Mitchell WRP ss 27-28.
247. DERM, Mitchell ROP Consultation Report, above n 183, states that 'The Mitchell River Traditional Custodian Advisory Group's submission raised issues concerning access by Indigenous communities to water in the present and for future generations. These issues related to: promotion of inherent land and water rights; protection of rights and interests of future generations of traditional custodians; processes for protecting and promoting water rights; and continued dialogue between the MRTCAG and State Government departments.': at 5.
248. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
249. DERM, Mitchell ROP Consultation Report, above n 183, 5.
250. Interview with a water planner from DERM (Brisbane, 25 October 2010).
251. Alexander and Ward, above n 52, 18.
252. The ecological outcomes, areas and processes 'to which this section applies were identified as areas of ecological significance through community consultation and independent scientific assessment as requiring particular ecological management': Explanatory Memorandum, Water Resource (Mitchell) Plan 2007 (Qld) 9.
253. Douglas E Fisher, 'Delivering the National Water Initiative: The Emergence of Innovative Legal Doctrine' in Karen Hussey and Stephen Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges (CSIRO Publishing, 2007) 119.
254. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
255. Water Act 2000 (Qld) sch 4.
256. Water Act 2000 (Qld) s 98(1)(e).
257. See also Fisher, 'Delivering the NWI', above n 191, 119.
258. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 15.
259. Socio-economic studies are seldom done in areas such as the Mitchell where there is no overallocation. The adequacy of socio-economic studies will not be canvassed in this article.
260. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 11.
261. Angela Arthington, 'Comparative Evaluation of Environmental Flow Assessment Techniques: Review of Holistic Methodologies' (Occasional Paper No 26/98, LWRRDC, 1998) 28.
262. Sandra Brizga, Burnett Basin Water Allocation Management Plan: Proposed Environmental Flow Performance Measures (Department of Natural Resources, 2000)
263. cited in Arthington and Pusey, above n 4, 382.
264. Mackenzie, above n 164, 86.
265. The environmental flow risk assessment framework in the IQQM relates to the risk of flows on fish: Sandra O Brizga et al, 'Benchmarking, a "Top-Down" Methodology for Assessing Environmental Flows in Australian Rivers' (Paper presented at the Environmental Flows for River Systems and 4th International Ecohydraulics Symposium, Cape Town, South Africa, 3-8 March 2002).
266. Interview with a water modeller from DERM (Telephone interview, 25 October 2010).
267. Hydrobiology Pty Ltd, above n 79.
268. Poh-Ling Tan et al, 'Tools for Water Planning: Lessons, Gaps and Adoption' (Waterlines Report, National Water Commission, 2010).
269. Sandra O Brizga 'The First Decade of Water Resource Planning in Queensland: What Have We Learned about Environmental Flows?' (Paper presented to 5th Australian Stream Management Conference: Australian Rivers: Making a Difference, Albury, 2007) 40.
270. Angela H Arthington, Sandra O Brizga and Mark J Kennard 'Comparative Evaluation of Environmental Flow Assessment Techniques: Best Practice Framework' (Occasional Paper No 25/98, LWRRDC, 1998) 1.
271. A two year minimum is recommended for holistic catchment assessments, like that done by the TAP in deciding the EFOs: Hamstead, Baldwin and O'Keefe, above n 172, 201.
272. Depending on the existing information on the catchment, the TAP usually has about 12 months to compile data: Interview with a water planner from the DERM (Brisbane, 25 October 2010).
273. Queensland Conservation Council (QCC), Submission to the National Water Commission, Re: Submission to the National Water Initiative 2009 Biennial Assessment of Progress in Implementation, 20 February 2009.
274. Arthington, Brizga and Kennard, above n 207, 1
275. Gardner, Bartlett and Gray, above n 30, 364.
276. See Gardner, Bartlett and Gray, above n 30, 363.
277. Gardner and Bowmer, above n 37, 44.
278. See Mitchell WRP ss 12-15.
279. A refugia is 'the habitat required by a species during a time of stress, for example, drought': Mitchell WRP s 13(2).
280. Mitchell WRP s 14(b).
281. Water Act 2000 (Qld) s 46(4)(a)-(b). Where a WRP contains EFOs it will also state Water Allocation Security Objectives (WASOs): 'an objective that may be expressed as a performance indicator and is stated in a water resource plan for the protection of the probability of being able to obtain water in accordance with the water allocation'.
282. The WASO sets the minimum performance level for a class of water entitlements (eg, 95% monthly reliability): Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 38.
283. Note also that a water allocation is an entitlement that is capable of being traded; the Mitchell however, only has licences which are issued under the WRP and are not capable of being traded.
284. Water Act 2000 (Qld) sch 4.
285. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 11.
286. For instance, the WRP may specify that 'the mean annual stream flow at a particular point must be maintained at or above 75 per cent of the mean annual flow that would occur in the absence of all development': NWC, Environmental Flow Objective: Term Definition (2010) .
287. NWI cl 35(ii); Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 11.
288. Productivity Commission, 'Water Rights Arrangements', above n 23, Glossary.
289. NWC, National Competition Policy Assessment of Water Reform Progress, above n 146, 4.25.
290. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 26.
291. CSIRO, above n 79, 374.
292. The QCC is particularly concerned about Queensland Government's policy for setting environmental flow objectives based on meeting end-of-system mean annual discharge (MAD), rather than on a range of flow data such as median, low, high, and medium flows in differing reaches of the water ways in question: Letter from Toby Hutcheon to Ken Matthews, 20 February 2009.
293. The QCC states that '[w]hile the end-of-system MAD for the Mitchell may be below 1.5 per cent of pre-development flows, under this policy, the upper Mitchell River at the Rifle Creek junction below Southedge Dam, flow reductions equate to 32 per cent of median annual flows, 50 per cent of 20 per cent flows, and 25 per cent of mean annual flows Consequently under this policy, environmental flows throughout the Mitchell River Basin appear to remain close to natural, which is deceptive as the impacts to the reach downstream of Southedge Dam to the junction with Rifle Creek will be considerable and largely ignored': QCC, NWC Submission, above n 208, 5.
294. QCC, NWC Submission, above n 208, 2.
295. Jacksonand Robinson, above n 16, 12.
296. Moggridge, above n 145.
297. Virginia Falk, An Aboriginal Perspective: The 'Gaps' in Water Knowledge and Water Management of Indigenous Water Rights (undated) http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/fec4fb2764319f8aca2576e30001f83e/$FILE/26%20Falk%20-%20Attachment%20A.pdf>.
298. Mackenzie, above n 164
299. Jackson, 'Background Paper on Indigenous Participation', above n 2
300. Jackson, 'Indigenous Values and Water Resource Management', above n 14.
301. Jackson, 'Background Paper on Indigenous Participation', above n 2, 17.
302. Campbell, above n 12.
303. For the Yolngu people of Northeast Arnhem Land, Ganma is both the word for estuarine water and a metaphor for knowledge, Raymattja Marika, 'Milthun Latju Wana Romgu Yolnu: Valuing Yolnu Knowledge in the Education System' (1999) Ngoonjook: A Journal of Australian Indigenous Issues
304. 185 cited in Tan et al, 'Collaborative Water Planning', above n 13 at 20.
305. Steven Dovers and Su Wild River (eds), Managing Australia's Environment (Federation Press, 2003) 415.
306. Lin Crase (ed), Water Policy in Australia, the Impact of Change and Uncertainty (Resources for the Future, 2008) 3.
307. Part VE of this article for examples.
308. Tan et al, 'Collaborative Water Planning', above n 13, 19.
309. Ibid; Jay T Johnson and Brian Murton, 'Re/placing Native Science: Indigenous Voices in Contemporary Constructions of Nature' (2007) 45 Geographical Research, 121, 125.
310. Mackenzie, above n 164, 16.
311. Interview with Matthew Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
312. Interview with Troy Grainer, Kuku Djungan Traditional Custodian (Kondapringa Station, 14 August 2010).
313. Interview with Matthew Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
314. Interview with Sharon Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
315. Interview with Matthew Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
316. Interview with Sharon Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
317. Interview with Troy Grainer, Kuku Djungan Traditional Custodian (Kondapringa Station, 14 August 2010).
318. Interview with Matthew Brady, Kuku Yalanji Traditional Custodian (Kondapringa Station, 14 August 2010).
319. Jon Altman and Sue Jackson, 'Indigenous Rights and Water Policy: Perspectives from Tropical Northern Australia' (2009) 13 Indigenous Law Review 27, 41.
320. Huntington, above n 10, 1270.
321. NWC, 'Update of Progress in Water Reform', above n 8, 3.3. NWC states that more needs to be done to improve the 'quality and extent of science underpinning water plans - especially understanding the relationships between water and the environment. Continued effort is required to ensure that the best available knowledge and info is available to improve water planning and accountability.'
322. NWI cl 36.
323. Fisher, 'Water Sustainability or Sell-out', above n 50, 266.
324. Fikret Berkes, Sacred Ecology: Traditional Ecological Knowledge and Resource Management (Taylor and Francis, 2008).
325. Adaptive management is defined as 'the process of continually reviewing the allocation of water between consumptive and non-consumptive purposes as conditions change over time, such as the understanding of environmental needs evolves and/or the community values of environmental protection change: Productivity Commission, 'Rural Water Use and the Environment', above n 30, 311.
326. See also Fikret Berkes, Johan Colding and Carl Folke, 'Rediscovery of Traditional Ecological Knowledge as Adaptive Management' (2000) 10 Ecological Applications 1251
327. Phillip Pagan and Lin Crase, 'Property Right Effects on the Adaptive Management of Australian Water' (2005) 12 Australasian Journal of Environmental Management 77.
328. Altman and Jackson, above n 246, 42.
329. Johnson and Murton, above n 236, 125
330. John Tisdell, 'Equity and Social Justice in Water Doctrines' (2003) 16 Social Justice Research, 401
331. Geoffrey J Syme, Blair E Nancarrow and Janet A McCreddin, 'Defining the Components of Fairness in the Allocation of Water to Environmental and Human Uses' (1999) 57 Journal of Environmental Management 51.
332. It has been observed that '[t]he region is generally data-poor, particularly the lower reaches, which are completely ungauged. Rainfall data across the important headwaters on the Great Dividing Range are noticeably poor': CSIRO, n 79, 350.
333. See also Tan et al, 'Collaborative Water Planning', above n 13, 10.
334. Altman and Jackson, above n 246, 43.
335. ABC News, 'Indigenous 'Fear' Northern Foodbowl' ABC News (online), 8 February 2010 http://www.abc.net.au/news/stories/2010/02/08/2813594.htm.
336. Interview with a water planner from the DERM (Brisbane, 25 October 2010).
337. Water Act 2000 (Qld) 98(e)-(f).
338. See also s 46(d) of the Water Act, which requires the WRP to state 'the water and natural ecosystem monitoring requirements to assist in assessing the effectiveness of the proposed management strategies in achieving the outcomes mentioned in paragraph (e)'.
339. DERM, Environmental Flow Assessment Program (DERM, Queensland Government, August 2009) http://www.derm.qld.gov.au/factsheets/pdf/water/w130.pdf.
340. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 95; DERM, Environmental Flow Assessment Program, above n 260.
341. DERM, Environmental Flow Assessment Program, above n 260.
342. The term 'critical' means water is necessary to maintain the biological integrity of the asset: Ibid.
343. Mitchell WRP s 67(b)(ii), 67(3); Mitchell ROP s 71.
344. DERM, Environmental Flow Assessment Program, above n 260.
345. Mitchell ROP s 71.
346. The annual report links waterhole health with a number of the specific and general ecological outcomes in the Mitchell WRP: DERM, Annual Report 2009-10 Queensland's Water Resource Plans (DERM, Queensland Government, 2010), 193.
347. Water Act 2000 (Qld) ss 53, 54
348. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 12.
349. Whilst the frequency of the reports is not stated in the plan (Gardner, Bartlett and Gray, above n 30, 329), Queensland has adopted an annual reporting cycle (Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 94).
350. Water Act 2000 (Qld) s 55(2).
351. Gardner, Bartlett and Gray, above n 30, 364. Indeed, the Queensland Government has indicated that such an amendment or replacement will occur where 'a major change in the circumstances relating to environmental needs over the life of the water resource plan': DNRW, Mitchell WRP Consultation Report, above n 80, 1 (emphasis added).
352. DERM, Environmental Flow Assessment Program, above n 260.
353. TRaCK, 'Waterhole Foodwebs', above n 95, 1
354. Ann McGrath, Born in the Cattle (Allen and Unwin, 1987) 5, cited in Tan et al, 'Collaborative Water Planning', above n 13, 39.
355. Mitchell WRP s 37: Example for paragraph (b)-a condition that the water may be taken only if the water level in the waterhole or lake is above the level that is 0.5m below the level at which it naturally overflows.
356. Mitchell WRP s 37(3).
357. Criticism about cumulative impacts is similar to that of cultural heritage management:
358. see Sue Jackson and Joe Morrison, 'Indigenous Perspectives in Water Management, Reforms and Implementation' in Karen Hussey and Stephen Dovers (eds), Managing Water for Australia: The Social and Institutional Challenges (CSIRO Publishing, 2007) 28
359. Jill Windle and John Rolfe, Natural Resource Management and the Protection of Aboriginal Cultural Heritage (Occasional Paper No 5, Institute for Sustainable Regional Development Occasional Paper, 2002)
360. Behrendt and Thompson, above n 144
361. McFarlane, above n 162.
362. Rose, above n 18.
363. Durette, above n 20, 2
364. Megan Dyson, Ger Bergkamp and John Scalon (eds), Flow: The Essentials of Environmental Flows (IUCN, 2003) 92
365. Hamstead, Baldwin and O'Keefe, above n 172, xviii
366. Schofield, Buert and Connell, above n 34, 36
367. Alexander and Ward, above n 52, 18.
368. Brady, above n 238.
369. Jackson, 'Indigenous Values and Water Resource Management', above n 14, 136.
370. Godden, above n 24, 15.
371. The Burnett and Mitchell WRP's translated Indigenous values into waterhole protection: Hamstead, Baldwin and O'Keefe, above n 172, xviii.
372. Schofield, Burt and Connell, above n 34, 15.
373. David Harmon, Coordinating Research and Management to Enhance Protected Areas (IUCN World Conservation Union, 1994) 28.
374. Interview with a water planner from the DERM (Brisbane, 25 October 2010).
375. Andrew W Storey, Peter M Davies and Ray H Froend, 'Fitzroy River System: Environmental Values' (Report, University of Western Australia, 2001) 54.
376. Joseph Powell, Plains of Promise, Rivers of Destiny: Water Management and the Development of Queensland 1824-1990 (Boolarong, 1991).
377. Hans Bandler, 'Water Resources Exploitation in Australian Prehistory Environment' (1995) 15 The Environmentalist 97
378. Bandler states that eel traps on Lake Coondah in Victoria have been in operation for approximately 8000 years.
379. See also Living Black SBS TV, Turning the Tide (5 May 2010) SBS http://www.sbs.com.au/podcasts/Podcasts/living-black/episode/83482/Turning-the-Tide.
380. David Smith, Water in Australia: Resources and Management (Oxford University Press, 1998) 139.
381. 'Wells' were either natural rock reservoirs protected by boulders, stones or sticks or artificial reservoirs which required great labour to create: Powell, above n 288, 3.
382. With impoundments built to provide a protective habitat away: Paul Humphries, 'Historical Indigenous Use of Aquatic Resources in Australia's Murray-Darling Basin, and its Implications for River Management' (2007) 8 Ecological Management and Restoration 109.
383. Instead, Powell uses the term 'environmental adaptation' to describe Indigenous water control and management: Powell, above n 288, 3.
384. Bandler, above n 289.
385. Bandler explains that '[i]t would also appear that these [water engineering and management] skills of the Aboriginal Australian people were applied from the earliest periods, in sometimes extremely adverse conditions. Their work was carried out with simple tools and only natural materials were used': at 107.
386. This lacuna refers to a lack of understanding and written material in the non-Indigenous realm of academia and management. Smith, above n 290, 139.
387. The Australian Human Rights Commission states that: 'while the impact of colonisation did undeniably interrupt the practice of laws and customs by Indigenous peoples, many nevertheless maintained, and continue to maintain, some connection to traditional waters': Australian Human Rights Commission, 'Review of the 1994 Water Report (2001)' (Human Rights and Equal Opportunity Commission, 2001).
388. DNRW, Mitchell WRP Consultation Report, above n 80, 12.
389. Nicholas Gambold, 'The Role of Traditional Ecological Knowledge and Skills in 'Modern' Aboriginal Land Management and Education' in Fiona Walsh and Paul Mitchell (eds), Planning for Country: Cross-cultural Approaches to Decision-making on Aboriginal Lands (Jukurrpa Books, 2002) 143.
390. Marcia Langton, Burning Questions: Emerging Environmental Issues for Indigenous Peoples in Northern Australia (Centre for Indigenous Natural and Cultural Resource Management, 1998) 74.
391. Brady, above n 238.
392. Anita Foerster, Law Policy and Practice for Ecological Sustainable Water Allocation and Management: An Analysis of Institutional Developments to Provide for Environmental Water Needs in the Murray-Darling Basin (New South Wales and Victoria), 1994-2009 (PhD Thesis, University of Melbourne, 2009) 144.
393. Ibid 144.
394. The dialogue, discussions and collaborations underway in the Murray Darling Basin is relevant to this emerging area: MLDRIN, 'Response to preliminary Assessment - Red River Gums ', above n 143.
395. Memorandum of understanding and cooperative agreements made with the Murray Lower Darling Rivers Indigenous Nations (MILDRIN): Murray Lower Darling Rivers Indigenous Nations, What We Do - Agreements .
396. Falk, above n 229, 3. This concern was also raised by Traditional Owners during the MRTCAG training.
397. Falk, above n 229, 3.
398. Below at Part VI 3.
399. Ian White, 'Indigenous Knowledge, Scientific Knowledge: A Marriage Made in the Condamine' (Paper presented at the OzWater Conference, Brisbane, 8-10 March 2010) 4.
400. Brady, above n 241.
401. Jackson, Tan and Altman, above n 8, 7.
402. Tan et al, 'Tools for Water Planning: Lessons, Gaps and Adoption', above n 205, 66.
403. Land and Water Australia, Recognising Indigenous Water Rights and Values in NRM Structure, Process and Legislation (3 September 2009) .
404. 'Assessment of the values Indigenous people place on the rivers and ecosystems were incorporated within some planning processes, for example the Victorian regional river health strategies associated with the Central Region SWS and the NSW macro plan process. For the Katherine/Tindall plan in the Northern Territory, detailed reports prepared by the Aboriginal Areas Protection Authority and the Northern Land Council, CSIRO, and the Northern Land Council described in some detail Indigenous peoples' values and places of cultural significance in the broader Daly catchment.'
405. With a high Indigenous population, low levels of water development and limited issues with overallocation.
406. NWI cl 36.
407. Jackson, Tan and Altman, above n 8, 8.
408. United Nations Convention on Biological Diversity, opened for signature 5 June 1992, 17620 UNTS 79, 31 ILM 818 (entered into force 29 December 1993).
409. NAILSMA, 'Ron Archer Talks Water: Upper Mitchell River, Cape York, Qld' News Bulletin Indigenous Community Water Facilitator Network (April 2011) .
410. Indigenous groups' uses and customs associated with water are distinct from each other (Gardner, Bartlett and Gray, above n 30, 535), thus this cross-cultural training will be most effective if it is carried out on country with the Traditional Owners of the catchment as with MRTCAG's training.
411. Donna Craig, 'Indigenous Property Rights to Water: Environmental Flows, Cultural Values and Tradable Property Rights' in Alex Smajgl and Silva Larson (eds), Sustainable Resource Use: Institutional Dynamics and Economics (Earthscan, 2007) 7.
412. Brady, above n 241.
413. This is considered essential for the genuine integration of Indigenous needs and interests in water planning: Jackson and Robinson, above n 16, 6.
414. Falk states that 'the essential ingredient to future debate and development of Indigenous water rights must be "self-governed" and that government-imposed Aboriginal reference groups and representative bodies replicate a type of governance 'that "grass roots" Aboriginal communities revile from as a general rule'
415. Falk, above n 229, 3.
416. MRWMG, 'Submission Summary', above n 157, 4.
417. QEG, above n 166, 8.
418. Jackson and Morrison, above n 277, 34.
419. Mackenzie, above n 164, 53.
420. Jackson and Morrison, above n 277, 34.
421. For instance, section 18 of the Mitchell WRP states that, when deciding the environmental management rules for the ROP, the chief executive must consider the impact of taking or interfering with water may have on cultural values of local Aboriginal or Torres Strait Islander communities.
422. This has been used in Western Australia see Roy Stone, Joe Edgar and Dean Mathews, 'La Grange Groundwater - Native Title and Indigenous Engagement in Water Planning' (Paper presented at the AIATSIS Native Title Conference, Perth, 4-5 June 2008) and is the rationale for the Indigenous Community Water Facilitator Network program administered by NAILSMA: NAILSMA, Indigenous Community Water Facilitator Network (2006) .
423. TRaCK, 'Collaborative Water Planning: Summary report' (Scenario Evaluation, TRaCK, February 2010).
424. Dyson, Bergkamp and Scanlon, above n 279, 20.
425. Thom Hardy, 'The Future of Habitat Modelling and In-stream Flow Assessment Techniques' (1998) 14 Regulated Rivers: Research & Management 405
426. Agriculture and Resource Management Council of Australia and New Zealand and Australian and New Zealand Environment and Conservation Council, 'National Principles for the Provisions of Water for Ecosystems' (Occasional Paper No 3, Sustainable Land and Water Resources Management Committee Subcommittee on Water Resources, July 1996) 3.7.
427. Dyson, Bergkamp and Scanlon, above n 279, 20.
428. Hydrobiology Pty Ltd, above n 79, 106.
429. Ibid, stating that: 'Traditional Indigenous cultural values are often closely associated with aquatic and flow based ecosystems due to their significance as a source of natural resources for use in accordance with Indigenous tradition and the presence of specific places of significance to Indigenous people such as story places, sacred sites, and important hunting and gathering areas. Besides the recognition of these values, the identification of specific sites or ecosystem types with particular values is beyond the scope of this study.'
430. Gardner and Bowmer, above n 37, 45.
431. NWC, National Competition Policy Assessment of Water Reform Progress, above n 146, 4.25.
432. Queensland Government, Queensland's 2006 NWI State Implementation Plan, above n 15, 26.
433. Interview with a water planner from the DERM (Brisbane, 25 October 2010)
434. John Tisdell, 'The environmental impact of water markets: An Australian case-study' (2001) 62 Journal of Environmental Management 113, 115.
435. Marcia Langton, 'Freshwater' in Background Briefing Papers: Indigenous Rights to Water (Lingiari Foundation, 2002) 48
436. Rose, above n 18, 32.
437. Queensland Government, Queensland's 2006 NWI State Implementation Plan, n 15, 26.
438. Jackson, 'Recognition of Indigenous Interests in Australia Water Resource Management - Flow', above n 59, 874.
439. Examples include: the research done with Indigenous people in the Condamine Balonne Basin (White, above n 307)
440. The Daly River Fish and Flows Project: Land and Water Australia, Daly River Fish and Flows Project (2007) Charles Darwin University ; TRaCK, 'Environmental Flows and Ecological Assets Project' (Fact Sheet No 5, Australian Government, 2009).
441. Jackson and Morrison, n 277, 34.
442. Arthington and Pusey, above n 4, 383.
443. Moller, Johnson and Van Manen, above n 79.
444. DERM, Water Resource Planning: Catchments (15 June 2011) DERM, Queensland Government .
445. Jackson, Tan and Altman, above n 8, 22.
446. Nancy Williams, Intellectual Property and Aboriginal Environmental Knowledge (Centre for Indigenous Natural and Cultural Resources Management, 1998).