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General / Thematic: Business and Human Rights: The Limits of the Law

Beyond Recognition: Lessons from Chile for Allocating Indigenous Water Rights in Australia


Elizabeth Macpherson

Australian water law frameworks, which authorise water use, have historically excluded indigenous people. Indigenous land now exceeds 30 per cent of the total land in Australia.[1] Yet indigenous water use rights are estimated at less than 0.01 per cent of total Australian water allocations.[2] In the limited situations where water law frameworks have engaged with indigenous interests, they typically conceive of such interests as falling outside of the ‘consumptive pool’[3] of water applicable to commercial uses associated with activities on land such as irrigation, agriculture, industry or tourism.[4]

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(2017) 40(3) UNSWLJ 1130:

  1. Jon Altman and Francis Markham, ‘Values Mapping Indigenous Lands: An Exploration of Development Possibilities’ (Paper presented at Shaping the Future: National Native Title Conference, Alice Springs Convention Centre, 3–5 June 2013) 6.
  2. Sue Jackson and Marcia Langton, ‘Trends in the Recognition of Indigenous Water Needs in Australian Water Reform: The Limitations of “Cultural” Entitlements in Achieving Water Equity’ (2011) 22 Journal of Water Law 109, 110.
  3. See Council of Australian Governments, ‘Intergovernmental Agreement on a National Water Initiative’ (Intergovernmental Agreement, 25 June 2004) sch B(i) <>, which defines the µconsumptive pool’ as µthe amount of water resource that can be made available for consumptive use in a given water system under the rules of the relevant water plan’ (emphasis in original).
  4. Ibid sch B(i) (definition of ‘consumptive use’).