Lombardi, Lisa --- "Water Rights Special - American Indian Water Rights: Some Observations and their Implications for Australia" [2004] IndigLawB 9; (2004) 5(29) Indigenous Law Bulletin 24

American Indian Water Rights:



Some Observations and their Implications for Australia

by Dr Lisa M Lombardi

American Indian water rights are at the centre of many current and historical water disputes in the United States. This paper provides an outline of the legal bases for those interests, and a short discussion of how those kinds of interests may be applicable to native title interests held by Aboriginal and Torres Strait Islander people in Australia.

In both American and Australian jurisdictions, rights to water remain vested in the State.[1] This is usually seen as a sovereign rather than proprietary interest, establishing the State’s power to regulate appropriation of water.

There are three bases for American Indian interests in water: treaty-based reserved water rights, water rights based on prior beneficial use, and water rights to support other recognised uses, such as treaty rights to fishing. I will discuss each in turn, along with how it may be applicable to the native title system in Australia.

Treaty-based reserved rights

Indian tribes have a particular status as “domestic dependent nations,”[2] with whom treaties were negotiated to formalise the ceding of Indian lands. Indian rights to lands and waters were recognised as existing prior to the treaties.

Over the past several hundred years rules of treaty interpretation have arisen: treaties are the highest law in the land under the Constitution; where there is ambiguity, treaties shall be liberally construed in favour of the Indians, as the treaties were not negotiated nor written in their language; and extinguishment of rights and interests must be intended and explicitly stated, otherwise whatever rights and interests existed before the treaty (or other legislation) still remain.

Treaties rarely addressed water as an issue, so if water was not ceded, then an interest in water probably remained. Some Indians, notably in the US southwest, already had uses such as irrigation for crops and gardens that would be recognised in the white system.

In other areas, Indian uses of land and waters were not obvious, and the policy of the day was to “civilise” the Indians. Accordingly, some reservations were created specifically for Indians to assimilate to something closer to the white model of land and resource use. A case involving one Reservation, Fort Belknap, became a foundation of early Indian and water law.

In Winters v United States[3], the Supreme Court ruled that at the time of the creation of the reservation, enough water was reserved by implication to fulfil the purposes of that reservation. In the case of Fort Belknap, the purpose of the reservation was to gain the majority of the lands controlled by the Indians for white settlement and to convert the Indians from hunter-gatherers into farmers. Thus the Indians were entitled to enough water from the Milk River to support that use. The priority date of that water right was the date of creation of the reservation, which was earlier than the water rights of the white farmers who came in to settle the lands opened up by the agreement, so the Indians had first call on the water of the Milk River.

Once Indian reserved water rights have been quantified, Indians can use the water for purposes other than what it was originally reserved for.[4] This allows tribes to change their uses of water, and in particular to enter water markets with their reserved water.

Although there are no treaties with Aboriginal and Torres Strait Islander peoples, the pact that was the foundation of the Fort Belknap reservation was an agreement, not a formal treaty. That agreement was interpreted by the courts in accordance with treaty rules discussed above, resulting in the federal reserve doctrine for water.

There are many agreements with Aboriginal people reserving areas of land to them. Some examples include Deed of Grant in Trust (DOGIT) areas in Queensland, and lands granted to Indigenous groups under the Aboriginal Land Rights (Northern Territory) Act in the Northern Territory. If those agreements are similarly interpreted liberally, with implied reservations included, then it is possible that this basis for an interest in water may also apply in a limited way in Australia.

Water rights based on prior beneficial use

Indian rights to water have been recognised based on beneficial uses of that water since “time immemorial,” a term of art in Indian law. Such uses would include fishing, domestic or household uses, stock watering, navigation, and perhaps spiritual or cultural uses. As those rights have not been explicitly extinguished, they continue to exist.

Aboriginal and Torres Strait Islander people have similar interests in water. Whilst these claims probably only apply to surface water features, if groundwater was used then that would also be covered. Thus if someone else’s use of groundwater impacts on these interests, this could be challenged on the basis that the use impaired an Indigenous prior claim. As in reserved rights, and particularly with the Commonwealth of Australian Governments emphasis on the tradeability of water interests, it is likely that such Indigenous interests in water, once quantified, would not be limited to traditional uses.

Water rights to support treaty uses

Treaties were about the Indians ceding land to the whites. While in many treaties the grants were absolute – the Indians retained no rights to the lands given up – in some cases Indian tribes explicitly retained off-reservation rights and interests. The most famous of these are interests reserved by the tribes of the Pacific Northwest in the treaties of 1855. In those treaties, the tribes in Washington State and parts of Oregon and Idaho ceded large tracts of land but specifically retained rights to hunt, fish, and gather “in common” with whites in all their “usual and accustomed” areas.[5] During the twentieth century Indians exercising those rights were subject to attempts by the State and other fishermen to curtail them, which they resisted. Those confrontations, on the waterfront and in the courts, are called the “fish wars.” Finally, in the mid-1970s, the treaty rights were upheld in a series of cases culminating in US v Washington, more commonly called the Boldt decision[6].

This decision has created an interest in public lands in the US very similar to native title interests in Crown lands in Australia – the interests are non-exclusive, and in some circumstances must give way to other interests, but are viable and valuable interests that remain wherever they have not been explicitly extinguished and compensated for.

The Boldt decision, and other cases clarifying the treaty fishing interests of the tribes, is quite clear that such a treaty interest in fishing is a real interest that needs to have fish to be caught in order to be fulfilled.[7] Obviously water is an integral component in those fishing rights. For these reasons, and in practice, it appears that in order to uphold Indian interests in fishing, there is probably an implied right to water. Whether that right to water can be perfected into an interest that can be severed from that fishing right has not been determined. The same arguments apply regarding rights to hunt and to gather shellfish; as these animals require water to exist, there is probably an implied right to water sufficient to support those treaty interests.

This issue hasn’t been litigated yet in the US; instead, the Indian tribes and the States, notably Washington State, have attempted a series of negotiations to include Indian water and fish interests in general allocations. Some examples of this have been the Chelan Accords (an attempt to negotiate a state-wide allocation process for water), ongoing discussions in the Yakima River basin, and the current settlement discussions with the Nez Perce tribe in the Snake River Basin Adjudication.

In Australia, it appears that Aboriginal and Torres Strait Islander people would have a similar interest in water- to support a native title interest in fishing, hunting, for domestic purposes; and perhaps spiritual and cultural purposes as well. Under the Native Title Act 1993 (Cth), native title interests, while not exclusive interests in lands and waters, exist where they have not been extinguished. While the majority of native title interests have not yet been determined across Australia, it is anticipated that in many if not most of the areas subject to native title, the incidents of native title will include such uses as hunting and fishing. One High Court case specifically upheld a native title right to hunt, overriding State prohibitions[8].

If such rights are determined to be incidents of native title, it may follow that there is an implied right to water to sustain that native title use, otherwise a native title interest in fishing or hunting would be meaningless. However, as in the US, it is unclear whether such an interest in water would rise to a tradeable or transferable interest.

Conclusion

Of all the bases of Indian water rights found in the US, the one that may be of most importance to Aboriginal and Torres Strait Islander people is a right based on prior existing use. Native title is based on proving connection to the land and waters in question. Connection hinges on the use of that area. Thus once connection is established, it follows that a prior beneficial use has also been established.

Other interests in water rights may also surface, as native title continues to be defined, and as water becomes a more valued resource. In the US, we have a saying: “Whiskey’s for drinking, water’s for fighting.” It appears that, too, will be imported to Australia in the coming decades, with Aboriginal interests in water being a crucial part of that battle.

Dr Lisa Lombardi is from the US Pacific Northwest, where she worked with various Indian tribes on treaty resource issues. She holds a Queensland practicing certificate as a solicitor, where she works on native title, water, and environmental law and practice for Golder Associates.

[1] Water Act 2000 (Qld), s 19.

[2] Cherokee Nation v Georgia, 30 US [1831] USSC 6; (5 Pet) 1 (1831) at 17.

[3] [1908] USSC 13; 207 US 564 (1908).

[4] Arizona v California, [1979] USSC 4; 439 US 419 (1979).

[5] See Treaty with the Nisqually and Other Indians, Art III, 10 Stat. 1132, 1133 (1854), et al.

[6] United States v Washington, [1975] USCA9 362; 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 US 1096 (1976).

[7] See, for instance, Washington v Washington State Commercial Passenger Fishing Vessel Association, [1979] USSC 151; 443 US 658 (1979); and United States v Washington, supra.

[8]Yanner v Eaton [1999] HCA 53.