Summary

This Situation Analysis Report details the current situation facing Cape York Aboriginal people seeking to understand and activate their water rights provided through Queensland’s statutory water planning process. The Water Plan (Cape York) 2019 and its Cape York Peninsula Heritage Act (CYPHA) reserve make 485,300ML of water available across 15 Cape York river catchments for Aboriginal corporations that perform Registered Native Title Body Corporate and/or Trustee of Aboriginal Freehold land functions. Under the Water Plan, where native title and Aboriginal freehold land rights and interests coincide in the same area of land, corporations that are the Trustee of Aboriginal Freehold land have priority for a water licence over Registered Native Title Bodies Corporate for the coincident area.

A water licence nominating a volume of water and its conditions of use will be granted to eligible Aboriginal corporations upon application, where the water licence volume is calculated according to the volume of water available in the catchment and the percentage of the catchment area where the corporation holds an interest in land. An eligible Aboriginal corporation applying for and being granted a water licence is the first step in the process to activate the CYPHA water reserve. However, before water may be taken and used, the licence holder must apply to the Department of Regional Development, Manufacturing and Water (DRDMW) Chief Executive to amend their water licence. If approved by the Chief Executive, the licence will be amended to include a schedule of conditions regarding the taking and using of water. These conditions ensure issues such as environmental impacts and native title are considered prior to water being extracted from a watercourse and used for a land-based project. The licence holder may also apply to assign water to a third party, and if approved, this would enable water to be leased for a set period of time but not permanently traded.

A desk top analysis to consider opportunities to activate CYPHA water for agriculture, aquaculture, energy production, mining, ecosystem services or municipal supply was undertaken, but few opportunities were identified. Cape York has relatively small areas of fertile soils, limited infrastructure and skilled labour and is remote from markets. Of the water use opportunities reviewed, mining and ecosystem services appear to be most prospective, although an ecosystems services market will need to be created before this opportunity could be meaningfully realised.

Expected outcomes

This Report has identified that the Water Plan has made available significant CYPHA water reserves for Cape York Aboriginal people. The substantial CYPHA reserve volume and restriction of eligibility for a CYPHA water licence to RNTBCs and TAFs, means that many Cape York Aboriginal corporations now have significant water volumes available to use on land where they hold interests, or to assign to other parties under a commercial agreement. CYPHA water could contribute to achieving social, cultural, economic and environmental outcomes sought by Cape York Aboriginal people, and management of CYPHA water rights provides an opportunity to develop and apply best practice management processes including to incorporate FPIC into decision making processes.

Analysis of CYPHA water-based land use options, however, reveal that limited agriculture, aquaculture, mining, and energy generation opportunities exist on Cape York, and there are often multiple statutory constraints on land use that further limit opportunities for use of CYPHA water for these purposes. Analysis further reveals that there is not expected to be high demand for water for municipal supply, and there are few ecosystem service options that could make use of CYPHA water. Under current arrangements therefore, opportunities for activation of CPYHA water are limited.