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40 Melb. U. L. Rev. 547 (2016-2017)
More Aqua Nullius? The Traditional Owner Settlement Act 2010 (VIC) and the Neglect of Indigenous Rights to Manage Inland Water Resources

handle is hein.journals/mulr40 and id is 557 raw text is: MORE AQUA NULLIUS? THE TRADITIONAL OWNER SETTLEMENT ACT 2010 (VIC) AND THE NEGLECT OF INDIGENOUS RIGHTS TO MANAGE INLAND WATER RESOURCES KATIE O'BRYAN* The Traditional Owner Settlement Act 2010 (Vic) was enacted in response to the deficiencies of the Native Title Act 1993 (Cth) in recognising the native title rights and interests of Victoria's Traditional Owners. It is widely recognised that the NTA is particularly inadequate when it comes to Indigenous participation in water management. This article evaluates the TOS Act to see if it improves on the NTA in that regard. After outlining the deficiencies of the NTA and its application in Victoria, it considers the nature of water rights capable of being recognised under the TOS Act. This is followed by an analysis of the procedural rights under the land use activity regime, the TOS Act's equivalent of the NTA's future act regime. Finally, it analyses the role of Aboriginal title (introduced by the TOS Act) and joint management (enhanced by the TOS Act) in facilitating Indigenous participation in water management. It concludes that the TOS Act does little to advance the water management aspirations of Victoria's Traditional Owners. CONTENTS I In tro d u ction .............................................................................................................. 54 8 II Native Title as a Source of Indigenous W ater Rights.......................................... 550 A Background to the N TA ............................................................................. 550 B The NTA and Native Title Rights to W ater.............................................. 551 1 Relationship between the NTA and the Common Law ............ 551 2 Future Act Provisions: Section 24HA - Management of W ater and A irspace ........................................................................ 553 3 Future Act Provisions Affecting Native Title Rights to Inland W aters: Subdivisions M and P.......................................... 558 BA (Hons), LLB (Hons) (Monash), LLM (Macq), PhD (Monash); Lecturer, Faculty of Law, Monash University. 547

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