‘Abuse of power’: Indigenous communities call out lack of consultation on Ontario housing bill

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Saturday, December 3, 2022

By Fatima Syed Ever since the Doug Ford government proposed its massive, sweeping housing bill, Indigenous chiefs and organizations across Ontario have been urgently reminding the Progressive Conservatives of their legal duty to consult them before making any decisions about land use. Despite these reminders, consultation didn’t happen, and Ford’s caucus passed the More Homes Built Faster Act, or Bill 23, on Nov. 28 — a move being blasted as a blatant violation of Indigenous Rights. The government is “respectfully advised that development cannot proceed without full recognition of the rights of our Nations,” Nishnawbe Ask Nation Grand Chief Derek said in a statement released hours after the bill’s passage. He wasn’t the only Indigenous leader to express his opposition. In the days before the bill became law, the Chiefs of Ontario, a group representing First Nations across the province, put out a statement calling it “unacceptable and an abuse of power” for the Ford government to make unilateral changes to how development projects in Ontario are approved without engaging First Nations.  We’re breaking news in Ontario The Narwhal’s Ontario bureau is telling environment stories you won’t find anywhere else. Keep up with the scoops by signing up for a weekly dose of our independent journalism. We’re breaking news in Ontario The Narwhal’s Ontario bureau is telling environment stories you won’t find anywhere else. Keep up with the latest scoops by signing up for a weekly dose of our independent journalism. The Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council, also wrote to Ontario’s assistant deputy minister of housing before the bill passed. In stating its opposition, the institute said the legislation “will significantly impair, infringe and interfere with the established and constitutionally protected rights and interest of the Haudenosaunee.”  “At this point we have nothing from your government or the Crown which would indicate that it has undertaken any contemplation or consideration of established Haudenosaunee rights and interests with respect to [Bill 23],” said the letter from Aaron Detlor, a lawyer for the development institute, which protects Haudenosaunee jurisdiction in regards to development on its territories.  “We would respectfully suggest that the failure to engage in a good faith treaty-based discussion related to accommodations would likely render the proposals unlawful.” Letter to Municipal Affairs and Housing Minister Steve Clark from the Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council The day after the bill was passed, Municipal Affairs and Housing Minister Steve Clark admitted the government did not consult with First Nations beforehand, in response to questions from the political newsletter Queen’s Park Today in a media briefing. “We’re looking forward to conversations with our Indigenous partners,” Clark said. He seemed to punt at least some of the responsibility to municipalities, saying they “also have a role to deal with our Indigenous Partners.”  “We acknowledge … we have an obligation to continue the consultation with our partners,” he said. “We will continue the conversation.” Municipal Affairs and Housing Minister Steve Clark said the government is “looking forward” to consultations on Bill 23 with Indigenous communities. Photo: Government of Ontario / Flickr Ford government knew Indigenous communities’ response to Bill 23 could be ‘negative’ The obligation to consult Indigenous communities on decisions affecting their territories is enshrined in Canada’s constitution. And internal documents have shown the Ford government knew Indigenous communities’ response to its bill would likely be negative well before it passed. In early November, The Narwhal received and reported on a leaked 117-page cabinet document that showed an extensive list of concerns shared with Ontario’s 30 ministers ahead of the tabling of the bill.  Almost every section of the document anticipates and outlines Indigenous communities’ response to the many changes listed in the bill — and almost every anticipated response is “negative” or “critical.”   Take one government proposal detailed in the leaked document to launch a “high-level consultation” on the whole bill: the document said “Indigenous communities may be negative due to possible implications on treaty and Aboriginal rights (wetlands and natural heritage).” “Indigenous communities: will be critical of reduced protections and provincial oversight” One of the conclusions in a 117-page leaked document about Bill 23 written for Ford’s cabinet and shared with The Narwhal Bill 23 makes multiple changes to the municipal planning process, giving towns and cities greater responsibility for reviewing and approving development plans while reducing financial and administrative support. The leaked document noted this would mean “Indigenous partners with treaty rights in affected areas will react negatively to changing relationships,” as well as to monitoring and consulting on an increased volume of development applications without an increase in resources.  The government has also removed some of the powers municipalities had to regulate sustainable  development — the document noted this would probably create concerns among Indigeneous communities “that their cultural heritage may not be well captured.” The gutting of conservation authorities and weakening of wetland protections was also highlighted as a key concern for Indigenous communities, due to the “reduced scope of protections for wetlands and watercourses.”  The Ford government has said Bill 23’s sweeping changes are necessary to speed up housing construction in Ontario. “Indigenous communities: will be critical of reduced protections and provincial oversight,” the document noted.  Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation told The Narwhal she’s not surprised by the details of the internal document or Clark’s comments.  “This government’s violation of Indigenous Rights is nothing new,” said LaRocca, who sent a letter on behalf of her own First Nation on Nov. 17. Indigenous communities say every parcel of land impacted by Doug Ford’s Bill 23 is Indigenous land and cannot be developed without proper consultation. Photo: Sean Marshall / Flickr Ford government has a history of avoiding Indigenous consultation This is not the first time the Ford government has either avoided consulting with Indigenous groups about development or shifted the responsibility onto local governments. Prior to Bill 23, a number of First Nations in Ontario had opposed the Ford government’s unprecedented use of minister’s zoning orders, or MZOs, a controversial provincial planning tool that allows the municipal affairs and housing minister to rezone land to fast-track development and overrule municipal decisions.  In 2021, LaRocca’s community was one of a number of groups raising concerns about a minister’s zoning order issued in an attempt to speedily build an Amazon warehouse in the protected Duffins Creek watershed, near her nation. Although the order was revoked and the project cancelled, most of the wetland was recently cleared and tilled anyway.  That same year, as reported by the Toronto Star, a group of First Nations launched legal action against the province for issuing a minister’s zoning order for a warehouse in Cambridge, Ont. One of the opposing communities was Six Nations of the Grand River, a Haudenosaunee community: after the legal action was launched, Clark’s office rebuked Cambridge’s mayor for not consulting them before asking for the order.  In addition to the constitution, the government’s duty to consult Indigenous Peoples about land use is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples: while Canada recognized the declaration in 2021, the Ford government has still not officially recognized it in the legislature.  The Lower Duffins Creek wetland, near the Mississaugas of Scugog Island First Nation, is supposed to be protected from development but may be impacted by Ford’s Bill 23. Like all the wetlands in Ontario, it acts as a natural sponge during floods. Photo: Toronto and Region Conservation Authority The federal government has already warned the Ford government about upholding the duty to consult: documents obtained by The Narwhal show that after conversations with Six Nations and Mississaugas of the Credit First Nation, the Trudeau government told the Ford government in 2021 that insufficient consultation on Highway 413 could result in an intervention and delay the project for years.  The federal government was also brought into a development dispute between Six Nations, Ontario and the municipality of Caledonia in 2020, when members of the Haudenosaunee communities resisted a housing development at a land defence dubbed 1492 Land Back Lane.  In August of that year, both Prime Minister Justin Trudeau and Premier Ford addressed the standoff: according to APTN, Trudeau said “all orders of government have the responsibilities toward [reconciliation],”, while Ford called himself “a strong believer in collaboration, in sitting down, communicating.”  Later that year, Ontario’s Indigenous Affairs ministry told the Toronto Star it was willing to participate in “federally led” discussions about the standoff, which lasted about a year and involved a court injunction aimed at dismantling the land defence camp, as well as police raids and arrests. The housing project was eventually cancelled.  Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation says the Ford government’s lack of consultation on Bill 23 is “nothing new” and “smacks of disrespect for Indigenous Rights.” Photo provided by Kelly LaRocca Despite prior friction over Indigenous consultation and its advance warning about the failures of Bill 23, the Ford government has gone ahead with its legislation.  LaRocca said she was not invited to any formal consultation, despite her vocal opposition to the bill and repeated request for discussions. “As we now know from Minister Clark directly, the government did not intend to consult with Indigenous communities.” “Bill 23 impacts Indigenous lands, treaty commitments and rights on multiple levels,” LaRocca said, adding First Nations have a right to manage their territories, natural resources and environment. “The government’s decision to pass Bill 23, knowing that consultation had not taken place, suggests a wanton disregard for our constitutionally protected rights.” “Reconciliation is about trust,” she added. “Seeing the government so blatantly ignoring the duty to consult smacks of disrespect for Indigenous Rights and the basic democratic processes intended to serve every citizen.”  In its letter, the Chiefs of Ontario anticipated Clark’s statement that Indigenous consultation could be done by municipalities, writing, “The Government of Ontario can no longer avoid its duty to consult with First Nations by delegating responsibilities and obligations to municipalities, developers and project proponents.”  Kahentiio Maracle, team coordinator at the Haudenosaunee Development Institute and a member of the Bear Clan from Tyendinaga Mohawk territory, said the government was being “unfair” in making unilateral decisions to develop “land that was never owned in the beginning.” Photo: Fatima Syed / The Narwhal Environmental impacts of development also a concern for Indigenous groups In its letter on behalf of the Haudenosaunee Confederacy Chiefs Council, the Haudenosaunee Development Institute bluntly reminded Ontario’s assistant deputy minister of housing of how the government was forced to revoke its zoning order for the Amazon warehouse in Pickering, as well as of its duty to respect Indigenous jurisdiction.  “We’re on land that was never owned in the beginning, so it’s unfair of them to say they’re ripping up things, that they’re going to dig the land up and make money of it,” Kahentiio Maracle, team coordinator at the institute and a member of the Bear Clan from Tyendinaga Mohawk territory, told The Narwhal. As well as Indigenous Rights, the institute’s letter spoke to the overlapping environmental impact of the bill’s sweeping changes. “The impairment and infringement that could arise from your proposed plans are particularly significant if and when the cumulative impacts are considered and contemplated,” the letter said. Detlor, the lawyer who wrote the letter, told The Narwhal the institute is giving the government one more week to respond before they “examine their options.” “Every single parcel of land impacted by Bill 23 in Indigenous land,” he said. “The government is prioritizing development over sacred and solemn promises.” LaRocca said the impacts of Bill 23 will be far reaching for First Nations across Ontario. She has growing concerns about the loss of major natural spaces like Lake Scugog, the Oak Ridges Moraine and the Carruthers Creek watershed, all of which act as natural safeguards against flooding and which are already under threat. Bill 23 removes or weakens many of the remaining regulations that protect those areas. “Paving over this land will speed up this decline, and expose us more to the adverse consequences of climate change,” LaRocca said. “Planning decisions must balance the need for growth with responsible, evidence-based environmental protections and mitigation strategies — a position of which we have ensured the government is made aware.”

By Fatima Syed Housing Minister Steve Clark admitted the government passed Bill 23 without consulting First Nations, despite past clashes with Indigenous communities over development

Land defenders and supporters at a land reclamation camp known as 1492 Land Back Lane near Six Nations of the Grand River.

Ever since the Doug Ford government proposed its massive, sweeping housing bill, Indigenous chiefs and organizations across Ontario have been urgently reminding the Progressive Conservatives of their legal duty to consult them before making any decisions about land use.

Despite these reminders, consultation didn’t happen, and Ford’s caucus passed the More Homes Built Faster Act, or Bill 23, on Nov. 28 — a move being blasted as a blatant violation of Indigenous Rights. The government is “respectfully advised that development cannot proceed without full recognition of the rights of our Nations,” Nishnawbe Ask Nation Grand Chief Derek said in a statement released hours after the bill’s passage.

He wasn’t the only Indigenous leader to express his opposition. In the days before the bill became law, the Chiefs of Ontario, a group representing First Nations across the province, put out a statement calling it “unacceptable and an abuse of power” for the Ford government to make unilateral changes to how development projects in Ontario are approved without engaging First Nations. 

We’re breaking news in Ontario
The Narwhal’s Ontario bureau is telling environment stories you won’t find anywhere else. Keep up with the scoops by signing up for a weekly dose of our independent journalism.
We’re breaking news in Ontario
The Narwhal’s Ontario bureau is telling environment stories you won’t find anywhere else. Keep up with the latest scoops by signing up for a weekly dose of our independent journalism.

The Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council, also wrote to Ontario’s assistant deputy minister of housing before the bill passed. In stating its opposition, the institute said the legislation “will significantly impair, infringe and interfere with the established and constitutionally protected rights and interest of the Haudenosaunee.” 

“At this point we have nothing from your government or the Crown which would indicate that it has undertaken any contemplation or consideration of established Haudenosaunee rights and interests with respect to [Bill 23],” said the letter from Aaron Detlor, a lawyer for the development institute, which protects Haudenosaunee jurisdiction in regards to development on its territories. 

“We would respectfully suggest that the failure to engage in a good faith treaty-based discussion related to accommodations would likely render the proposals unlawful.”

Letter to Municipal Affairs and Housing Minister Steve Clark from the Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council

The day after the bill was passed, Municipal Affairs and Housing Minister Steve Clark admitted the government did not consult with First Nations beforehand, in response to questions from the political newsletter Queen’s Park Today in a media briefing. “We’re looking forward to conversations with our Indigenous partners,” Clark said. He seemed to punt at least some of the responsibility to municipalities, saying they “also have a role to deal with our Indigenous Partners.” 

“We acknowledge … we have an obligation to continue the consultation with our partners,” he said. “We will continue the conversation.”

Municipal Affairs and Housing Minister Steve Clark speaks at an event. Clark didn't consult Indigenous communities on the Ontario housing bill (Bill 23).
Municipal Affairs and Housing Minister Steve Clark said the government is “looking forward” to consultations on Bill 23 with Indigenous communities. Photo: Government of Ontario / Flickr

Ford government knew Indigenous communities’ response to Bill 23 could be ‘negative’

The obligation to consult Indigenous communities on decisions affecting their territories is enshrined in Canada’s constitution. And internal documents have shown the Ford government knew Indigenous communities’ response to its bill would likely be negative well before it passed. In early November, The Narwhal received and reported on a leaked 117-page cabinet document that showed an extensive list of concerns shared with Ontario’s 30 ministers ahead of the tabling of the bill. 

Almost every section of the document anticipates and outlines Indigenous communities’ response to the many changes listed in the bill — and almost every anticipated response is “negative” or “critical.”  

Take one government proposal detailed in the leaked document to launch a “high-level consultation” on the whole bill: the document said “Indigenous communities may be negative due to possible implications on treaty and Aboriginal rights (wetlands and natural heritage).”

“Indigenous communities: will be critical of reduced protections and provincial oversight”

One of the conclusions in a 117-page leaked document about Bill 23 written for Ford’s cabinet and shared with The Narwhal

Bill 23 makes multiple changes to the municipal planning process, giving towns and cities greater responsibility for reviewing and approving development plans while reducing financial and administrative support. The leaked document noted this would mean “Indigenous partners with treaty rights in affected areas will react negatively to changing relationships,” as well as to monitoring and consulting on an increased volume of development applications without an increase in resources. 

The government has also removed some of the powers municipalities had to regulate sustainable  development — the document noted this would probably create concerns among Indigeneous communities “that their cultural heritage may not be well captured.” The gutting of conservation authorities and weakening of wetland protections was also highlighted as a key concern for Indigenous communities, due to the “reduced scope of protections for wetlands and watercourses.” 

The Ford government has said Bill 23’s sweeping changes are necessary to speed up housing construction in Ontario. “Indigenous communities: will be critical of reduced protections and provincial oversight,” the document noted. 

Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation told The Narwhal she’s not surprised by the details of the internal document or Clark’s comments. 

“This government’s violation of Indigenous Rights is nothing new,” said LaRocca, who sent a letter on behalf of her own First Nation on Nov. 17.

A creek surrounded by foliage on a sunny day.
Indigenous communities say every parcel of land impacted by Doug Ford’s Bill 23 is Indigenous land and cannot be developed without proper consultation. Photo: Sean Marshall / Flickr

Ford government has a history of avoiding Indigenous consultation

This is not the first time the Ford government has either avoided consulting with Indigenous groups about development or shifted the responsibility onto local governments. Prior to Bill 23, a number of First Nations in Ontario had opposed the Ford government’s unprecedented use of minister’s zoning orders, or MZOs, a controversial provincial planning tool that allows the municipal affairs and housing minister to rezone land to fast-track development and overrule municipal decisions. 

In 2021, LaRocca’s community was one of a number of groups raising concerns about a minister’s zoning order issued in an attempt to speedily build an Amazon warehouse in the protected Duffins Creek watershed, near her nation. Although the order was revoked and the project cancelled, most of the wetland was recently cleared and tilled anyway. 

That same year, as reported by the Toronto Star, a group of First Nations launched legal action against the province for issuing a minister’s zoning order for a warehouse in Cambridge, Ont. One of the opposing communities was Six Nations of the Grand River, a Haudenosaunee community: after the legal action was launched, Clark’s office rebuked Cambridge’s mayor for not consulting them before asking for the order. 

In addition to the constitution, the government’s duty to consult Indigenous Peoples about land use is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples: while Canada recognized the declaration in 2021, the Ford government has still not officially recognized it in the legislature. 

Aerial view of Duffins Creek
The Lower Duffins Creek wetland, near the Mississaugas of Scugog Island First Nation, is supposed to be protected from development but may be impacted by Ford’s Bill 23. Like all the wetlands in Ontario, it acts as a natural sponge during floods. Photo: Toronto and Region Conservation Authority

The federal government has already warned the Ford government about upholding the duty to consult: documents obtained by The Narwhal show that after conversations with Six Nations and Mississaugas of the Credit First Nation, the Trudeau government told the Ford government in 2021 that insufficient consultation on Highway 413 could result in an intervention and delay the project for years. 

The federal government was also brought into a development dispute between Six Nations, Ontario and the municipality of Caledonia in 2020, when members of the Haudenosaunee communities resisted a housing development at a land defence dubbed 1492 Land Back Lane

In August of that year, both Prime Minister Justin Trudeau and Premier Ford addressed the standoff: according to APTN, Trudeau said “all orders of government have the responsibilities toward [reconciliation],”, while Ford called himself “a strong believer in collaboration, in sitting down, communicating.” 

Later that year, Ontario’s Indigenous Affairs ministry told the Toronto Star it was willing to participate in “federally led” discussions about the standoff, which lasted about a year and involved a court injunction aimed at dismantling the land defence camp, as well as police raids and arrests. The housing project was eventually cancelled

Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation. LaRocca says a lack of consultation on Bill 23 is "nothing new."
Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation says the Ford government’s lack of consultation on Bill 23 is “nothing new” and “smacks of disrespect for Indigenous Rights.” Photo provided by Kelly LaRocca

Despite prior friction over Indigenous consultation and its advance warning about the failures of Bill 23, the Ford government has gone ahead with its legislation. 

LaRocca said she was not invited to any formal consultation, despite her vocal opposition to the bill and repeated request for discussions. “As we now know from Minister Clark directly, the government did not intend to consult with Indigenous communities.”

“Bill 23 impacts Indigenous lands, treaty commitments and rights on multiple levels,” LaRocca said, adding First Nations have a right to manage their territories, natural resources and environment. “The government’s decision to pass Bill 23, knowing that consultation had not taken place, suggests a wanton disregard for our constitutionally protected rights.”

“Reconciliation is about trust,” she added. “Seeing the government so blatantly ignoring the duty to consult smacks of disrespect for Indigenous Rights and the basic democratic processes intended to serve every citizen.” 

In its letter, the Chiefs of Ontario anticipated Clark’s statement that Indigenous consultation could be done by municipalities, writing, “The Government of Ontario can no longer avoid its duty to consult with First Nations by delegating responsibilities and obligations to municipalities, developers and project proponents.” 

Kahentiio Maracle is the team coordinator at the Haudenosaunee Development Instituteand a member of the Bear Clan from Tyendinaga Mohawk territory
Kahentiio Maracle, team coordinator at the Haudenosaunee Development Institute and a member of the Bear Clan from Tyendinaga Mohawk territory, said the government was being “unfair” in making unilateral decisions to develop “land that was never owned in the beginning.” Photo: Fatima Syed / The Narwhal

Environmental impacts of development also a concern for Indigenous groups

In its letter on behalf of the Haudenosaunee Confederacy Chiefs Council, the Haudenosaunee Development Institute bluntly reminded Ontario’s assistant deputy minister of housing of how the government was forced to revoke its zoning order for the Amazon warehouse in Pickering, as well as of its duty to respect Indigenous jurisdiction. 

“We’re on land that was never owned in the beginning, so it’s unfair of them to say they’re ripping up things, that they’re going to dig the land up and make money of it,” Kahentiio Maracle, team coordinator at the institute and a member of the Bear Clan from Tyendinaga Mohawk territory, told The Narwhal.

As well as Indigenous Rights, the institute’s letter spoke to the overlapping environmental impact of the bill’s sweeping changes. “The impairment and infringement that could arise from your proposed plans are particularly significant if and when the cumulative impacts are considered and contemplated,” the letter said. Detlor, the lawyer who wrote the letter, told The Narwhal the institute is giving the government one more week to respond before they “examine their options.”

“Every single parcel of land impacted by Bill 23 in Indigenous land,” he said. “The government is prioritizing development over sacred and solemn promises.”

LaRocca said the impacts of Bill 23 will be far reaching for First Nations across Ontario. She has growing concerns about the loss of major natural spaces like Lake Scugog, the Oak Ridges Moraine and the Carruthers Creek watershed, all of which act as natural safeguards against flooding and which are already under threat. Bill 23 removes or weakens many of the remaining regulations that protect those areas.

“Paving over this land will speed up this decline, and expose us more to the adverse consequences of climate change,” LaRocca said. “Planning decisions must balance the need for growth with responsible, evidence-based environmental protections and mitigation strategies — a position of which we have ensured the government is made aware.”

Read the full story here.
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The lie of aqua nullius, ‘nobody’s water', prevails in Australia. Indigenous water reserves are not enough to deliver justice

In the struggle against aqua nullius, Indigenous people’s right to make decisions about water on Country is a priority.

James D. Morgan/Getty Images When the British colonised Australia they assumed terra nullius, “nobody’s land”, and aqua nullius, “nobody’s water”. In 1992, terra nullius was overturned – but aqua nullius remains. Aqua nullius denies the existence of Indigenous peoples’ own water governance principles, laid down through ancestral “first laws”. These customary laws are carried through songlines, trade routes and ceremony, embedded in a deep reciprocal economy of sharing. First laws guide the custodianship of living waters, with attention to intergenerational equity. Living waters – from rivers, to ancient aquifers to wetlands – are sacred and alive. As the source of energy to animate Country, living waters are critical to Indigenous Peoples’ collective survival. The responsibility of caring for waters (and land) are a central concern of Indigenous Peoples – but this responsibility is thwarted by aqua nullius. Queensland, Northern Territory and Western Australia have sought to distribute water rights to Indigenous people by establishing “Indigenous (or Aboriginal) water reserves”, setting aside a portion of water from the consumptive pool for Indigenous people’s future use. In our new policy brief, we unpack the benefits and limitations of these reserves. As it stands, the policy measure alone does not deliver justice for Indigenous peoples. A broader approach is needed. The right to water Indigenous people must be able to access water in their territories if they so choose. A United Nations declaration recognises the right to water for Indigenous people. Yet First Nations water holdings in Australia and elsewhere are abysmally low. For example, Indigenous people or organisations hold less than 0.2% of surface water entitlements in the Murray Darling Basin. In the struggle against aqua nullius, Indigenous people’s right to make decisions about water on Country is a priority. But importantly, when we talk about “water rights” for Indigenous people, the rights to access and use water is only one aspect. The bigger picture problem is that the decision-making power over water remains with governments, and this power is not shared with Indigenous people. We agree aqua nullius is unacceptable and must change. Establishing Indigenous water reserves is one option, but it’s far from clear it will deliver what Indigenous communities need. Living waters – from rivers, to ancient aquifers to wetlands – are sacred and alive. Shutterstock Indigenous water reserves The Northern Territory, Queensland and Western Australia have each introduced Indigenous water reserves into water allocation plans. Water allocation plans define the consumptive pool – that is, how much water can be taken each year for consumptive purposes, such as for drinking supplies or irrigation. There are at least 19 Indigenous water reserves across Northern Australia. This approach has not yet been adopted by other Australian states and territories. Read more: Australia has an ugly legacy of denying water rights to Aboriginal people. Not much has changed A major limitation of Indigenous water reserves is their narrow scope. In the NT and WA, their overall purpose is to provide economic opportunities for Indigenous people. Queensland reserves generally provide water to help Indigenous people achieve both economic and social aspirations. A focus on using water for commercial purposes risks other crucial items – such as ensuring sufficient water for Country and to maintain ecosystem health – falling off the agenda, upholding the unacceptable status quo. This is what Indigenous organisations have said repeatedly, and what our new policy brief reflects: that water for economic development is just one of many aspects to overcoming water injustice. A market-based lens There are two main reasons Indigenous water reserves should not be viewed solely through a market-based lens. First, water in Indigenous reserves in the Northern Territory are only distributed when there is surplus water. The Central Land Council has stated: in the majority of cases where the SAWRs [Strategic Aboriginal Water Reserves] should be available, the water resources have been fully or over-allocated and there is no water available for SAWR. In other words, if there is no water surplus left, as determined by Australian governments, then the reserve is considered “notional”: in reality, non-existent. Read more: Terra nullius has been overturned. Now we must reverse aqua nullius and return water rights to First Nations people Second, land tenure rules and regulations are being used to determine the allocation to Indigenous water reserves. For example, in the Northern Territory, Indigenous holders of non-exclusive possession native title (that is, native title that co-exists with other forms of land tenure, such as a pastoral lease) are ineligible for water reserves. This splits native title holders into those with water and those without, based on native title rules, creating an unfair division. Arbitrary rules about who is eligible for Indigenous water reserves does not respond to the injustice of land and water stolen or forcibly acquired from Indigenous nations. In response to this failing, the Northern Land Council noted it: has been disappointed that one of its key recommendations throughout the development of the [Aboriginal Water Reserve] was not adopted through the legislative amendment – that is, that eligibility should be broadened to encompass Aboriginal people and communities who have neither land rights nor exclusive native title. Are there any benefits? In contrast with top-down and arbitrary water allocation planning policies, water reserves can also be established through Indigenous land use agreements. A negotiated agreement between Indigenous groups and Australian governments, potentially has more scope to respond to past injustice and deliver meaningful benefits. This is because it’s a negotiated settlement intended to be between partners, rather than a top-down “one size fits all” process for an entire state or territory. Read more: Australia, it's time to talk about our water emergency One possible example is the Yamatji Southern Regional Corporation (YSRC) lease of water to sand mining company Perpetual Resources in 2020. It is the first agreement between the WA government and an Indigenous nation to establish a negotiated access to water with an Indigenous Water Reserve. Chief executive of YSRC, Jamie Strickland, has stated: This agreement is the first of its kind and demonstrates how our Strategic Aboriginal Water Reserve can generate opportunities and economic benefits for the Yamatji Nation. Missing details An holistic approach is needed to ensure water rights support living waters, the environment, and spiritual and cultural connections. If Indigenous water reserves are to benefit Indigenous people, then governments must listen and negotiate in good faith with Indigenous nations. When applied in water allocation plans, Indigenous water reserves must be part of a cohesive and comprehensive approach – one that delivers sovereignty for water to Indigenous nations and responds to the gross injustice and lie of aqua nullius. Importantly, Indigenous water reserves need to be one part of a bigger-picture approach to water justice if aqua nullius is to be overturned. The Water Justice Hub receives funding from the Australian Research Council Laureate Fellowship FL190100164.Anne Poelina is the volunteer Chair with the Martuwarra Fitzroy River Council. She does not own, share or acquire any benefits from the Martuwarra Fitzroy River Council. She is the Managing Director (Volunteer) of Madjulla Inc. Indigenous Not for Profit Organisation based in the Kimberley, WA. She is also a member of the Aboriginal Water Group (AWG) advising the WA Department of Water and Environmental Regulations; a member of the Commonwealth Aboriginal Water Interest; and of the Murray Darling Basin (MDB) inaugural First Nations appointment to its independent Advisory Committee on Social, Economic and Environmental Sciences. Quentin Grafton receives research funding from the Australian Research Council.

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