Victoria's Traditional Owner Settlement Act and Indigenous Management of Water Resources: An Improvement on the Native Title Act or More of the Same?

Indigenous Law Bulletin, Vol. 8(26), p, 21, September/October 2016

Monash University Faculty of Law Legal Studies Research Paper No. 3018013

5 Pages Posted: 15 Aug 2017

See all articles by Katie O'Bryan

Katie O'Bryan

Monash University Faculty of Law

Date Written: September 2016

Abstract

The Traditional Owner Settlement Act 2010 (Vic) (‘TOS Act’) was enacted in response to the deficiencies of the Native Title Act 1993 (Cth) (‘NTA’) in recognising the native title rights and interests of Victoria’s Traditional Owners. As an alternative to the NTA, it was described by the then Premier, John Brumby as ‘a fairer and more flexible way to resolve native title claims than under the Commonwealth’s Native Title Act’.

It is widely recognised that the NTA is particularly inadequate when it comes to providing for Indigenous participation in water management, s 24HA being most notable in that regard. Whilst the TOS Act delivers on a number of Indigenous aspirations for land and natural resource management, the question arises, however, as to whether or not it also delivers on Indigenous water management aspirations.

In light of the inadequacies of the NTA, this article evaluates the TOS Act for its ability to facilitate the participation of Indigenous Victorians in water management. First of all, it outlines the deficiencies of the procedural rights in s 24HA of the NTA and of the limited recognition of native title rights to water generally in Victoria. It then considers the nature of water rights capable of being recognised under the TOS Act, and what is required to be able to exercise those rights. This includes a consideration of the TOS Act’s relationship with Victoria’s primary statute governing water management, namely the Water Act 1989 (Vic). This is followed by a brief analysis of the procedural rights under the land use activity regime (the TOS Act’s equivalent of the NTA’s future act regime), including a comparison of the LUA regime with s 24HA of the NTA. It concludes that there is not much to separate the two regimes, and therefore the TOS Act does little to improve the participation of Indigenous Victorians in the management of water resources.

Keywords: Native Title, Indigenous Rights, Water Law, Water Management, Australia

JEL Classification: K00, K32

Suggested Citation

O'Bryan, Katie, Victoria's Traditional Owner Settlement Act and Indigenous Management of Water Resources: An Improvement on the Native Title Act or More of the Same? (September 2016). Indigenous Law Bulletin, Vol. 8(26), p, 21, September/October 2016; Monash University Faculty of Law Legal Studies Research Paper No. 3018013. Available at SSRN: https://ssrn.com/abstract=3018013

Katie O'Bryan (Contact Author)

Monash University Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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