Katie O'Bryan
Monash University, Faculty of Law, Faculty Member
Research Interests:
This article outlines the content of the Gunaikurnai native title consent determination and associated settlement agreements, being the first settlement made under the Traditional Owner Settlement Act 2010 (Vic). It also canvasses the... more
This article outlines the content of the Gunaikurnai native title consent determination and associated settlement agreements, being the first settlement made under the Traditional Owner Settlement Act 2010 (Vic). It also canvasses the background to the native title claim and the hurdles that had to be overcome to reach the settlement.
Research Interests:
In September 2017, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 was passed by the Victorian Parliament. An essential element of the Act is the creation of the Birrarung Council, a statutory body to be the ‘independent... more
In September 2017, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 was passed by the Victorian Parliament. An essential element of the Act is the creation of the Birrarung Council, a statutory body to be the ‘independent voice for the river’. Of significance for Indigenous involvement in river management is the mandatory requirement for Traditional Owner representation on the Council.
This development in river management, although new to Victoria, has some parallel with recent developments in Aotearoa New Zealand, namely the Whanganui River Treaty Settlement. In this settlement, the Whanganui River has been granted legal personality, the embodiment of that legal personality being in the form of a statutory river guardian containing Māori representation, to be the ‘independent voice’ of the river. But giving an independent voice to the environment (or an element thereof) may already have begun to enter the Victorian consciousness in the guise of the Victorian Environmental Water Holder (‘VEWH’).
This article considers the Whanganui River Treaty Settlement, and in particular the granting of legal personality to the River as embodied in a guardian, and with all of the associated legal rights and responsibilities of a legal entity. It critically analyses various merits and weaknesses identified in the settlement to ascertain whether it enhances Māori participation in river management and can therefore provide a useful model for Victorian Traditional Owners. An important related question is whether this new model is indicative of wider changes to water governance, or merely the creation of just another voice in the already crowded water management debate. Can the guardianship model embrace the concept of Indigenous representation in river management, given that they are conceptually quite different? In that respect, this article argues that this particular guardianship model does not fundamentally change the water governance system, but gives an additional, albeit indirect, voice to Māori, a voice which emphasises Māori river values. The article then considers, by way of comparison with the WhanganuiRiver guardianship model, whether the VEWH is reflective of a move towards a more independent management model, akin to an environmental guardian. Finally, this article examines the potential application of this guardianship model to individual rivers in Victoria, identifying five key issues that would need to be considered.
This development in river management, although new to Victoria, has some parallel with recent developments in Aotearoa New Zealand, namely the Whanganui River Treaty Settlement. In this settlement, the Whanganui River has been granted legal personality, the embodiment of that legal personality being in the form of a statutory river guardian containing Māori representation, to be the ‘independent voice’ of the river. But giving an independent voice to the environment (or an element thereof) may already have begun to enter the Victorian consciousness in the guise of the Victorian Environmental Water Holder (‘VEWH’).
This article considers the Whanganui River Treaty Settlement, and in particular the granting of legal personality to the River as embodied in a guardian, and with all of the associated legal rights and responsibilities of a legal entity. It critically analyses various merits and weaknesses identified in the settlement to ascertain whether it enhances Māori participation in river management and can therefore provide a useful model for Victorian Traditional Owners. An important related question is whether this new model is indicative of wider changes to water governance, or merely the creation of just another voice in the already crowded water management debate. Can the guardianship model embrace the concept of Indigenous representation in river management, given that they are conceptually quite different? In that respect, this article argues that this particular guardianship model does not fundamentally change the water governance system, but gives an additional, albeit indirect, voice to Māori, a voice which emphasises Māori river values. The article then considers, by way of comparison with the WhanganuiRiver guardianship model, whether the VEWH is reflective of a move towards a more independent management model, akin to an environmental guardian. Finally, this article examines the potential application of this guardianship model to individual rivers in Victoria, identifying five key issues that would need to be considered.
Research Interests:
The Traditional Owner Settlement Act 2010 (TOS Act) was enacted in response to the deficiencies of the Native Title Act 1993 (NTA) in recognising the Native Title rights and interests of Victoria’s Traditional Owners. It is widely... more
The Traditional Owner Settlement Act 2010 (TOS Act) was enacted
in response to the deficiencies of the Native Title Act 1993 (NTA)
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 providing for Indigenous participation in water
management, s 24HA being most notable in that regard.3 While
the TOS Act delivers on a number of Indigenous aspirations for
land and natural resource management, the question arises
as to whether or not it also delivers on Indigenous water
management aspirations.
This article focuses on the nature of water rights recognised under
both the NTA and the TOS Act in relation to Victoria, with particular
attention paid to procedural rights under s 24HA of the NTA and
the Land Use Activity regime under the TOS Act.
in response to the deficiencies of the Native Title Act 1993 (NTA)
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 providing for Indigenous participation in water
management, s 24HA being most notable in that regard.3 While
the TOS Act delivers on a number of Indigenous aspirations for
land and natural resource management, the question arises
as to whether or not it also delivers on Indigenous water
management aspirations.
This article focuses on the nature of water rights recognised under
both the NTA and the TOS Act in relation to Victoria, with particular
attention paid to procedural rights under s 24HA of the NTA and
the Land Use Activity regime under the TOS Act.
Research Interests:
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... more
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