Ontological Collisions in the Northern Territory ’ s Aboriginal Water Rights Policy

Amid a renewed push to extract water for agriculture and mining, Indigenous advocacy in northern Australia has resulted in the introduction of a new water allocation mechanism: a reserve of water to be retained for the use and bene ﬁ t of Indigenous communities. Our socio-legal analysis of the Oolloo Water Allocation Plan shows that the Strategic Aboriginal Water Reserves carry essential hallmarks of neoliberal property relations and are founded in the modernist mode of regulating extracted water as a commodity divisible from land, amenable to partitioning and disarticulated from socio-cultural relations. Informed by ethnographic material from the Daly River region gathered over almost a century, we describe the hydro-social relations that are created through customary traditions and practices, water planning and licencing, and the interaction between different scales of water movement and decision-making by both the state and Traditional Owners. The paper contributes in several ways to research that has identi ﬁ ed ontological con ﬂ icts as central to disagreements over water and pointed to the dif ﬁ culty of articulating theoretical framings of ontological difference with the practical work of water negotiations. It shows how the new Indigenous water rights discourse that coincided with the commodi ﬁ cation of water in wider Australia shaped the way in which Aboriginal people of this region have more recently articulated their relationships to the Daly River and the limits to state recognition of those relationships. We ﬁ nd that the Reserve model is unable to recognize the capacity of water to connect and unify people and other beings, as well as to de ﬁ ne boundaries between them. Within a regime that facilitates resource extraction, a limited opening has been created for Aboriginal people to bene ﬁ t from this model of economic development, yet we argue that there is reason to fear that the divisions the Aboriginal Water Reserve enacts between waters and land presents signi ﬁ cant socio-cultural risks.


INTRODUCTION
Australian governments have belatedly acknowledged the necessity of addressing Indigenous rights and interests in water (COAG 2004;Productivity Commission 2021).Acknowledgement has come as Aboriginal Traditional Owners have become increasingly concerned about the creeping impact of aqua nullius embedded in the regulatory and management regimes for water (Marshall 2017).This impact has worsened over the past two decades, involving not just the denial of Aboriginal rights in water, but extinguishment of native title rights by water capture projects.The current barriers faced by Traditional Owners speak to an entrenched history of mediating Aboriginal interests in water through the refraction of a colonial modality of extraction; in which the settler state falsely conceptualizes water as a resource, burdened by Aboriginal interests, and as the precursor to mining and agricultural exploitation on Aboriginal lands (Hartwig et al. 2021;Marshall 2017;O'Donnell et al. 2023).
A counter-narrative to that modality lies in the stories that anchor connection to Countryor customary estatesand the property rights that continue to subsist under Aboriginal custom and tradition (Langton 2002a).Ethnographic research illuminates that counter-narrative (see Barber and Jackson 2014;Langton 2006;Toussaint et al. 2005) but simultaneously reveals the further dispossession of Aboriginal peoples due to that extractive settler tradition.This new wave of dispossession of the vital life force, water, extinguishes not just dependent environmental phenomena but also the effective practice of cultural and religious traditions.With an added filter of neoliberal economic demands that now inform many facets of settler state water policy, ancestral relations with water are vulnerable to the dissonant onto-logics of water underpinning new models of Indigenous water rights policy (Laborde and Jackson 2022).This includes recent attempts by the settler state to rearticulate Aboriginal interests in water as a residual interest (as Aboriginal Water Reserves) in a manner reminiscent of the land 'reserves' model (see Godden et al. 2020).
The Australian government demonstrated a stubborn commitment to the extractive tradition when, 25 years ago, it amended the national Native Title Act (1993) and removed the right to negotiate over water resource development.Soon after, Langton (2005:18) reflected on the injustice the amendments did to Indigenous peoples and raised two questions that perfectly frame the problem this paper now seeks to address: The question remains: how should Aboriginal rights and interests-that remain property rights under Aboriginal custom and tradition-be treated in the acts of the Crown that authorise commercial use of water and water bodies, technological water capture and diversion in the Aboriginal domain?A subsequent question dealt with here is that relating to a proper recognition of the social and geographical incidents of Aboriginal relationships with waterscapes.There is not only the physical effect of the denial or pollution of water resources by such projects impacting on their physical and economic habitats, but also the social effects on all of the groups who draw from water sources their identity and traditional relational patterns.Amid a renewed push to extract water for agriculture and mining (Hart et al. 2019), Indigenous advocacy in northern Australia has resulted in the introduction of a new water allocation mechanism: a reserve of water for the use and benefit of Indigenous communities.Queensland and the Northern Territory have developed policies to institutionalize Strategic Aboriginal/Indigenous Water Reserves within their water planning frameworks, and the concept is being applied in a more ad hoc manner in Western Australia (Godden et al. 2020;Nikolakis and Grafton 2014;Taylor et al. 2022).Reserves were promoted in response to changes to water governance instituted nationally, especially reliance on water markets, which raised concerns that such measures may exacerbate Indigenous exclusion from water in the north (e.g., NAILSMA 2009).Reserving water for future use is seen as a critical means of advancing Indigenous enterprises that require a water entitlement.Additionally, reserving water provides a means of accessing potential revenue streams derived from trading water to non-Indigenous enterprises, should water trading commence in north Australia (Taylor et al. 2022).
The Reserves carry essential hallmarks of neoliberal property relations and are founded in the modernist mode of regulating extracted water as a commodity divisible from land, amenable to partitioning and disarticulated from socio-cultural relations (Jackson 2006a;Jackson and Head 2020).Market criteria have strongly shaped the arrangements for access to and benefit from the Reserves and there can be little doubt that this close alignment with settler property relations renders a Reserve policy relatively easy to incorporate into water allocation frameworks.This alignment also accounts for the degree of policy acceptance of the Reserve model when compared to more substantive reform to water and Indigenous law (O' Donnell 2013).
There is therefore considerable potential for conflict in the realization of this policy and in this paper, we describe the many divisions that are enacted through reserving water for Aboriginal use under the Northern Territory Water Act 1992.The Reserve model is embedded in a water allocation framework and technical knowledge base that seeks to divide water from land and partition some waters from other waters to regulate use within a delimited area.There has been no policy consideration given to how to address or reconcile the existence of Indigenous hydro-social relations, knowledges and jural principles.Nor have analysts of Indigenous water rights attended to these inherently ontological conflicts in their studies of the legal characteristics of Reserves (cf.Godden et al. 2020;O'Donnell et al. 2022).Our socio-legal analysis 1 , informed by ethnographic material from the Daly River region, reveals the hydro-social relations that are created by customary traditions and practices, water planning and licencing and the interaction between different scales of water movement and decision-making by both the state and Traditional Owners.
The Daly River is a fertile and important case study for several reasons.It is the site of the first water allocation plan to be issued following the 2019 legislative reforms that created the Strategic Aboriginal Water Reserve (hereafter SAWR).The region also has an ethnographic record going back to the 1930s, as well as a history of community action over water rights since the early 2000s, when water use for irrigation intensified and water allocation planning commenced.The catchment has a longer and 'sombre' history of agricultural experimentation and failure which anthropologist W.E.H. Stanner (1979:80) attributed to the 'absurd optimisms' of white settlement.Such optimism around settler agricultural exploitation in the Daly River region has persisted as a framing context for the introduction of Aboriginal land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (hereafter ALRA) and more recent efforts to secure a water reserve for the express purpose of providing Aboriginal economic benefit.Today, the region is still considered by some to hold the greatest agricultural potential of any in the Northern Territory, in large part because of its abundant groundwaters.Published studies (e.g., Barber and Jackson 2014;Jackson 2005a, 2005b, 2006a, 2006b) and unpublished reports (e.g., AAPA 2004;Sutton and Palmer 1980) describe the relational water rights norms of the many Aboriginal language groups and the cultural significance of groundwater and surface water flows.
Our review of hydro-social relations in the Daly River region draws on historical and ethnographic accounts that span almost a century, thereby deepening the contextual understanding of the origins of the SAWR.Also, we show how the new Indigenous water rights discourse that coincided with the commodification of water shaped the way in which Aboriginal people of this region have more recently articulated their relationships to the Daly River and the limits to state recognition of those relationships.Today Traditional Owners must grapple with the conceptual ascendance of 'modern water'a dissoluble, quantifiable, and asocial entity (Linton 2010).The SAWR can be mobilized because it so closely aligns with this hegemonic episto-ontology of water, but it presents significant socio-cultural risks as the ontological assumptions upon which it is based conflict with the Aboriginal conception of water as alive, socially unifying and fundamentally and inseparably intertwined with the wider landscape.We find that the SAWR is unable to recognize the capacity of water to connect and unify people and other beings, as well as to define boundaries between them.Our analysis highlights the problems that will be encountered if eligibility to access the SAWR is conflated with having interests in water under Indigenous laws and cultural traditions.
Before elaborating on the Daly River case we explain why we frame the current disagreement over water use and allocation in the Northern Territory as an ontological conflict.Following the 'ontological turn' in anthropology and cognate disciplines (Graeber 2017), scholars are more attentive to the politics through which water (as well other 'natures') are defined and known.Most typically in the West, water is conceived as an element that lies outside of the realm of Society/Culture.From across anthropology, geography and Indigenous studies, scholars have specifically examined the difficulty of articulating theoretical framings of conflicts over water with the practical work of water planning negotiations which are enabled by a dualistic modern ontology (Laborde and Jackson 2022;Poelina et al. 2019;RiverofLife et al. 2021;Salmond 2014;Weir 2009;Yates et al. 2017).Yet, as noted by Turska and Ludwig (2023), the term ontology is used in different ways across disciplines, sometimes inconsistently.Although there is no consensus on the term, anthropological theorists regularly describe ontology as a heuristic to engage with 'collectivedependent, knowledge-making, self-determined interpretative domains' (ibid.: 39), rather than as a theme of philosophical inquiry into the nature of being.In this vein, we adopt the definition of ontology used by Boelens et al. (2023) to advance their political analysis of global water justice movements, where ontology is a: set of concepts and categories that help us to identify, assemble, order and explain particular entities: their nature and properties, the relations among the constituting parts, and the relationships that give them substance and meaning in their contexts (ibid.:1136).Turska and Ludwig (2023:39) explicate a pluralist orientation to the ontological turn which conceives of the modernist ontological framework as 'simply one of the many available and existing culturally contingent or collective-dependent ways of carving up reality'.Ethnography, they (ibid.)argue, builds understanding of how different ontologies guide action and practice.Encounters between radically different social groups raise methodological, epistemic, and political concerns, some of which have motivated our interest in ontological contestations over freshwater.In our engagement with water policy and management practices (across Indigenous, scientific, and bureaucratic and other settler cultures), we see a pressing need to foreground the basic question of what water issometimes what a river isand what would it mean for environmental governance to take seriously many ways of being with water (cf.Laborde and Jackson 2022;Langton 2006).We thus seek to challenge the limiting idea, so deeply entrenched in techno-managerial circles as to be almost invisible, that the object of concern in settler law and water management decisions is the singular water of scientists, planners, and bureaucrats.Adhering to powerful expert ontologies and asymmetrical epistemologies (Boelens et al. 2023), these same actors sideline ontological differences 'as differences arising from cultural perspectives on water' (Laborde and Jackson 2022:358, emphasis in original), leaving Indigenous connections, knowledges, and values to be assessed, quantified, or mapped for incorporation in tokenistic processes as 'cultural values'.Such dismissive procedures rarely impact technocratic decision support frameworks, let alone empower Indigenous authority and jurisdiction, or uphold Indigenous lifeways.
We show that in its current form the SAWR will do little to bring about a much needed 'new configuration of jural, economic and social relationships' (Langton 2002b:100) between Aboriginal people and settler society.The governance framework within which the Reserve sits bestows very limited management responsibility for the waters bound and carved out for commercial use and it devolves no real power to Aboriginal people to make decisions about the wider landscapes, including the river, in which the waters of the Reserve are embedded.In this manner, the SAWR reserve model remains an adapted colonial model: it uses the classic 'reserve' model in the Commonwealth Aboriginal Lands Rights Act and seeks to extend it to water.It requires Aboriginal people to seek to both preserve cultural connection and values, while also being forced to pursue economic empowerment, yet again within the terms of the capitalist economy which only ever has accorded, grudgingly, some minimal forms of economic independence to Aboriginal communities.

History of agricultural development and settler colonial resource regulation
The large, perennial Daly River flows through a broad meandering floodplain.It rises near the regional town of Katherine, some 300 kilometres south-east of Darwin, and flows in a north-westerly direction into the Timor Sea via Anson Bay (Fig. 1).The Katherine River is the main tributary to the Daly, others include the Flora, Fergusson, Edith, King, Dry, and Douglas Rivers.Swamps, lagoons, and billabongs are a major feature of the landscape.During the dry season, it is groundwater discharge from the large Oolloo Dolostone aquifer that feeds the surface waters, largely through springs in the Daly and Katherine Rivers (Northern Territory Government 2019).There are many Aboriginal language groups with primary ties to different localities in the catchment (Fig. 1).Several Aboriginal Land Trusts hold land throughout the catchment including downstream of the Oolloo Water Allocation Plan (WAP) area (e.g., Malak Malak Land Trust at Nauiyu Nambiyu).
Settlers first encountered the Daly River region when entering it from Anson Bay in 1865 in pursuit of a capital for the Northern Territory.Glowing descriptions of the country as an 'agricultural paradise' (Richards 1982) stimulated the establishment of small-scale farms along the river from the 1880s.Copper mining followed, precipitating a period of intense upheaval for Aboriginal people (Hinkson 2005;Rose 1998).Ceremonial life was curtailed at the same time when the Jesuits located to the Daly River (Sutton and Palmer 1980).
The introduction of a Crown Lands Ordinance (1912) by the Commonwealth government soon after it assumed control of the NT included liberal provisions for the agricultural settler: perpetual leasehold with no rent payable for the first 21 years or the life of the settler, whichever was the longer, in the first 5,000 cases (Richards 1982).These provisions were complemented by the Advances to Settlers Ordinance of 1913 which advanced cash for improvements and equipment.Government backed experimental farms were also established along the Daly River and at Katherine.In 1938, as part of the move to support settlement, and as had occurred in many Australian jurisdictions from the late 19th century, legislation was passed that vested water in the Northern Territory government giving it significant control over water resources and their distribution (Control of Waters Ordinance 1938 [NT] s3).The Ordinance was the forerunner to current water laws in the Northern Territory.
The white population increased considerably with these incentives (Sutton and Palmer 1980).Studies by Sutton and Palmer (ibid.), Rose (1998) and Richards (1982) reveal the reliance of Daly River settlers on Aboriginal labour, as well as the difficulties farmers experienced over many decades.Extensive and frequent flooding, a completely dry season and isolation from the marketplace were major impediments.Barely enough food could be produced for domestic use, let alone export.Many of the Aboriginal people 'enslaved' to sugar plantations and peanut farmers were also 'dirt-poor' (Lea 2012:189).Disease and slaughter at the hands of settlers led to 'radical population decline' (Rose 1998:20;Sutton and Palmer 1980).
Doctoral research by W.E.H. Stanner (1933a) provides ethnographically rich descriptions of the social organization of the 'river tribes' over the period 1930-1950. Several published papers and his book, White Man Got No Dreaming (1979), reveal the dynamics of dependence and adaptation spurred by 'culture contact' in the lower Daly.When Stanner arrived in the early 1930s, social relations were tense and mistrustful, and sometimes violent and the approximate location of Aboriginal language groups as shown in NLC (2006).
( 2005).The Daly River seemed 'a barbarous frontier -more, a rotted frontier, with a smell of old failure, vice, and decadence' (Stanner 1979:80).Stanner pieced together the history of failed enterprise and the chaos of invasion, and he was pessimistic about Aboriginal people's ability to maintain cultural traditions and practices (Rose 1998).Surviving tribes had migrated, declined in size, and assimilated with neighbours, or ceased to exist, weakening institutions of exchange that linked tribes in a ceremonial economy (Stanner 1933b).Stanner (1933a) observed that customary economic and social life in the 1930s was strongly aligned with the wet and dry seasons and the more recent demands of farmers for Aboriginal labour.He described customary property relations that governed access to resources, observing that hunting and collecting rights of the groups were not absolute, the river was accessible to all, and food-gathering and ceremonial interactions relied more on contact between groups than in less fertile areas of Australia: Many stretches of country belonged to two or three hordes, and sometimes to as many tribes.The Daly river is said to have been no one tribe's exclusive possession.The Madngella, for instance, are said to have had with other tribes complete right of access to the river through Mulluk Mulluk territory (ibid.:403).
Hinkson (2005) examined Stanner's field notes and an unpublished Masters thesis that contained observations of an emergent form of social organization on the Daly.Each 'group holds a certain roughly defined section of the river' and these sections, 'tend to centre largely on local farms where employment is possible' (Stanner cited in Hinkson 2005:204).Stanner considered that the kinship system enabled Aboriginal society to resist or adjust to the impact of intense contact.Rose (1998:20-1) has also emphasized the regional sociality that linked groups throughout the Daly, bringing people into 'relationships through marriage, reciprocity for subsistence organized through mutual foraging rights, and shared responsibilities in religious ritual'.
As pastoralism became the dominant settler land use throughout the region it too depended on cheap Aboriginal employment.Nearly all Wagiman people from the upper Daly worked in the pastoral industry for substantial periods (Harvey 2022;Jackson 2005b), closely following the river in movements that aligned with seasonal work, family events and ceremony.Subsistence economic activity constituted a significant component of Wagiman life until the 1960s (Harvey 2022;Kearney 1991).With the introduction of equal wages in the pastoral sector, Aboriginal employment opportunities contracted, as did the seasonal movement throughout customary estates.Some Aboriginal people moved to the towns of Katherine, Pine Creek, Adelaide River, and Darwin, which also affected territorial associations (Merlan 1998;Sutton and Palmer 1980).According to Sutton and Palmer (ibid.:13), the Malak Malak and Madngele people 'stayed put' at their small settlement at Woolianna, maintaining a 'self-conscious independence' despite the influence of the Roman Catholic Mission that was established at Daly River in the 1950s.
Agriculture maintained its strong appeal as the pathway to closer settlement of the Territory, although government support for private investment was by this time somewhat tempered by scientific reports of limiting conditions (Hasluck 1960).Another government experimental farm was established in the 1970s and the American-leased Tipperary Station was cleared for crops but failed (Mollah 1980).
By the mid-1970s the Commonwealth's Aboriginal land rights legislation provided a mechanism for Traditional Owner groups of the Daly region to demonstrate the enduring bonds of connection that were the legal foundation for a claim to unalienated Crown Land, including parcels of land that had been reserved for Aboriginal people from the 1910s.
The Malak Malak claim was the first, lodged to approximately 200 mile 2 of land in the vicinity of the rehabilitated farmland (and enclosed by Tipperary Station) along the Daly River in 1978 (Toohey 1982), while other claims followed.
The land claims recognized the language group as the most common principle of Aboriginal land tenure, brought about through the co-location of groups drawn from an extensive area and extinction of many local descent groups (AAPA 2004).A report prepared by the Aboriginal Areas Protection Authority and the Northern Land Council in the context of renewed interest in irrigated agriculture in 2004, notes the variation throughout the region.Some local descent groups belong to estates or sub-regions of the language group's territory, for example, Malak Malak and Nanggiwumerri.The report explained the cosmology of Daly River landholding groups who: believe that their rules for social, economic and religious life were established by the Dreamings in an epoch when they introduced law to that particular people and gave meaning to their territory… Each group believe that the signs from ancestral beings left in the landscape (sacred sites) prove that their particular law is handed down from the Dreamtime.(ibid.:20)It noted that a sense of common tradition, a mostly shared lifestyle nearby traditional estates and shared beliefs regarding responsibility to Country reinforced the social cohesion of Daly River peoples for whom water retains an enduring significance (ibid.).

Indigenous water traditions of the Daly
It is not surprising that Stanner did not single out ancestral relations with water for close attention.Water was then, as it is today, inseparable from day-to-day social arrangements and cultural practices; it is integral to the lives and beliefs of Aboriginal peoples, in the Daly and elsewhere (Langton 2002a;Toussaint et al. 2005).Additionally, the development ideology of the era was more concerned with extracting value from land than 'water conservation', a term that encompassed early forms of water resource development in drier regions of Australia.Stanner (1979:55) called water a 'vitalistic thing' for it was the source of 'perennial life' in Aboriginal religion.Water features in his accounts of important myths that explain the formation of landscapes and social institutions of the Top End: The ancestors stocked the land with rivers, springs, food, weapons and other means of life, raised up hills and mountains, put spirit-children into the waters, used the wind and songs as agencies of will, went up into the sky, provided dreams as a means of communicating with the living, and performed a host of similar marvels.Stanner (1960:259) In a myth from the Daly that both Stanner (1979) and Rose (1998) found rich with symbolism, a great man, Angamunggi, was treacherously killed by his son.Angamunggi lived long enough to 'generate sources of life: permanent freshwater pools, where he left the spirits of the unborn' (ibid.:28).Angamunggi manifests in various potent ways, said Stanner (1979:56), as the 'fertilising power of water' and the 'in the vital principle which is in seasons, rain, tides, and the begetting of children by spiritual agency'.He is also an immense snake that inhabits deep waters.
The origins of the Daly, other tributary rivers, or underground waters are not recounted in Stanner's published material, however myths narrating the formation of waterbodies and their lifegiving properties continue to both interpret and reflect the significance of water and water features to Aboriginal people of the region (Cooper and Jackson 2008;Jackson 2005aJackson , 2005bJackson , 2006aJackson , 2006b)).For example, Malak Malak elders explain in an ethnobotanical guide (Lindsay et al. 2001) that the Daly River was formed out of a series of disconnected pools when Walnganytyak, an important man, was caught in a fish trap and smashed his way out, turning into a crocodile who claimed the river as his.When Malak Malak or Matngala people go to fish or hunt in the river they call out to Walnganytyak and his offspring to allow them to take some fish or turtles and look after their Country.'Life was hard before', according to BL, when the river was 'still water' that did not flow with life (Field Notes 15 April 2004 2 ).'The river will never dry up', said BL, 'because spirits, the mermaids, keep the water there… children's spirits live there' (Field Notes 14 July 2005).
These accounts also contain implicit values about how water should be shared among all life forms and how, through that sharing, all life is interconnected (Barber and Jackson 2014).For example, a Wardaman Dreamtime story relates how the Brolga took all the water away from the Country to the sky, leaving: Nothing in the rivers, the rivers were empty.For billabongs, nothing.Small rivers, creeks, no water there… Without water the Dreamings were dying.Eventually the sand frog speared the coolamon containing the water and released it.(WAC 2002:4) Wardaman Traditional Owners retold that story to the first author, explaining that 'There wasn't any water in the creek, river, all the animals got the sand frog to do it for them' (Field Notes 18 October 2006).Wagiman elders also want their stories of the Daly River, or Guwardugan as they know it, to be heard, as PH recounted in 2004: 'We've got a story for that river.That river been there for a long time, since before grandfather, grandmother' (Field Notes 25 February 2004).Speaking in language, when one goes fishing is 'like opening up the Country', said JH.If you 'sing out' to the sentient Country and invoke the relationship between people and place you get a 'big mob of fish.If you can't talk, old spirit think you might be a stranger helping yourself' (Field Notes 28 April 2005).Wardaman also demonstrate respect in this way when visiting Country, as do others in this region who all wet the heads of strangers with local water to 'neutralize' the difference between unfamiliar and familiar people and in doing so protect them (Kearney 1991;Merlan 1998).
Dreamings are responsible for the movement and transformative power of groundwater as well as surface water.Wardaman people ascribe the functioning of the Giwining/Flora spring system, which feeds the Daly River throughout the year, to a grasshopper lying under the ground 'pumping' the water out into the river (Jackson 2005a:140).BH explained that the Rainbow 'feeds the waterholes', keeping the water levels up or bringing them down (Field Notes 18 October 2006).Local Aboriginal law and myth also reflect the integration of inland and sea resources.Myths for sites for which Traditional Owners of the Daly are responsible also reinforce the interdependency of saltwater and freshwater creatures (Field Notes; Cooper and Jackson 2008).
Many of the sacred sites recorded within the Daly region are associated directly with the Daly River and its tributaries (AAPA 2004).Maps tendered as evidence to the land claims (Kearney 1991;Sutton and Palmer 1980;Toohey 1982) depicted these waterscapes.That evidence revealed the intensely localized identification with water sources and wider scales of connection.For example, the authors of the Malak Malak anthropological report documented the many Aboriginal site names that applied to features of both the terrestrial and underwater realms (Sutton and Palmer 1980).Of the 239 sites mapped as a representative sample, Sutton and Palmer explained that: … site names apply to camping or other sites along the river edge, some apply to rocks or river bed under the water, and some apply to ledges, rocks and sandbars or trees which form part of the river banks.A site name which focuses on a rock under water, for example may also apply by normal processes of extension to the adjacent banks and river edges.(ibid.:25).
The Daly River and claims made under the ALRA Three claims for Aboriginal land rights were made under the ALRA between 1978 and 1983: Malak Malak, Lower Daly, and Upper Daly.All these land claims included a 'riparian' element (O 'Donnell 2011:101) as each included rights to the beds and banks of the Daly River.The claims were not couched as claims to the water in the river or aquifers, 3 due to the claims being brought under the ALRA statutory framework.Designated land parcels were to be restored to Aboriginal control as communally held 'Aboriginal freehold' and, as freehold title, there were associated rights to use water but only for traditional purposes purposes (ibid.).The reasoning of the Land Commissioners in determining the Aboriginal claims revealed critical differences in how the powers of the government, and individual's rights to land and flowing water, are conceived under the laws of the settler state, and according to Aboriginal traditional ecological knowledge.Ultimately, the reasoning that was adopted reinforced the separate management of land and water.Even so, the Malak Malak claim shows that as Traditional Owners sought ownership of parcels of unalienated Crown land in and along the rivers, they also wanted a means of collaboratively managing the entire river.
The Daly (Malak Malak) claim was to land on either side of the crossing at Naiyu Nambiyu, to the riverbanks and bed, and surrounding places.Identifying what was unalienated Crown land (the precondition for a successful claim) was a complex undertaking because the claim potentially extended to land held by settlers near to and 'adjoining the river' (Toohey 1982:94).If land was held by settlers, it was not unalienated, and thus not open to claim under the ALRA.In preparing his report to the Commonwealth Aboriginal Affairs Minister, Commissioner Toohey worked across three legal frameworks: the ALRA, the Control of Waters Act 1979 (NT), as well as the common law's rules around rivers. 4  The Control of Waters Act (NT) vested in the Crown the property in water and the right to the use, flow, and control of water in a watercourse.In the modern era, Crown ownership of beds and banks of rivers in the Northern Territory under Eurocentric law also derives in part from this legislation, as well as from older common law rules.Such assertions of Eurocentric law as the measures to govern rivers derive from a distinctively different ontological vantage from that of Aboriginal Traditional Owners.Aboriginal ontology as a means of knowing 'water' is still largely suppressed by Eurocentric water law in the Northern Territory, even though there has been growing recognition of Aboriginal peoples' rights to participate in managing rivers at a national policy level.Ironically, the statutory assertion of Crown property in the actual water, was not the key legal issue that Toohey identified in determining the claim by Traditional Owners to the Daly River and immediate surrounds.
A pivotal issue was whether a 'savings' provision in section 6 of the Control of Waters Act brought into effect earlier common law riparian landholder rightswhich could have meant the bed and banks of the river had been alienated and thus not available to claim.Commissioner Toohey concluded by contrast that the beds and the banks of the Daly River could be claimed, as that part of the waterscape was in effect 'unalienated Crown land'.Toohey (1982:66) also found that the 'the river itself' could not be claimed.
Toohey considers the fact that in the common law (derived from the UK), riparian rights flow from ownership of land adjoining rivers.These are riparian rights of access to a shared water resource, and not a property right.The concept of sharing water was to figure prominently in Toohey's resolution of the conflicts in the claim.Moreover, in the UK, in tidal reaches of rivers, the beds and banks were 'owned' by the Crown.In non-tidal areas it was possible for individuals to hold title to bed and banks of rivers giving them riparian rights.In Australia this position was altered with introduction of statutory land titles, whereby the Crown held the vested ownership of the bed and banks of watercourses.Further, where land holdings were not directly 'adjoining the river' riparian rights were not available.Accordingly, the strip of land that lay between the river and the properties of many of the settlers was sufficient to deprive them of any riparian rights.Under the ALRA claim process, the grant of Aboriginal freehold land to the bed and banks would similarly cause a detriment in that some would not be able to draw water from the river as of right.Toohey (1982:44) acknowledged that any future negotiated access may be costly.
The Malak Malak claimants had instructed their Counsel that they 'did not wish to deny access to people who own blocks adjoining the river to the river … for the purposes of obtaining water' including for farms (ibid.: 45).The only terms that might be imposed related to protection of the environment, particularly prevention of erosion of the banks.Counsel acknowledged that a means of reaching an agreement over access to river water had not yet been settled.In the hearing, Traditional Owner Jimmy Tapnguk was asked whether the Daly River 'should belong to the Malak Malak people' or whether 'white people can have the river too?' Jimmy replied that white people can also use the river.When pressed as to whether the government or Malak Malak 'should own the river', Jimmy confirmed the Malak Malak people should own the river and the riverbank and that Malak Malak would let people use the bank and river for fishing and camping.Traditional Owners declared that they wanted to run the area 'with rangers like a park, like Cobourg, 5 under an agreement with the NT conservation agency.It was thought that joint management would see boat access regulated, camping places properly managed and sites protected. 6A wider joint management arrangement for the river never eventuated.

The rise of an Indigenous water rights discourse
Throughout the 2000s, government plans to subdivide pastoral leases, clear land and irrigate farms with water from the Daly River generated considerable debate and local opposition (Jackson 2005b(Jackson , 2006a(Jackson , 2006b)).In late 2003 the NT government announced a moratorium on land subdivision and clearing until an integrated plan was prepared under the guidance of the Daly River Community Reference Group.A water allocation plan was also commenced.The stakeholder group of 12 (chaired by Rick Farley) included only two positions for Aboriginal representatives (Jackson 2005b).This also coincided with the development of the National Water Initiative, a policy that formally committed Australian governments to separate water from land (Godden et al. 2020).
Traditional Owners doubted that more agriculture would benefit their communities, given that few, if any, Aboriginal people worked on farms anymore (Stoeckl et al. 2013).Sedimentation from erosion and boat traffic, weed infestations and pollution were all discussed, but the main concern was water extractionthe fear that farmers might pump too much and dry up the river, billabongs, or springs, as they had in southern Australia.As Aboriginal groups were urged by government to participate in the planning processes, the discussions centred on 'how much water could be taken out' and what the effects might be (Field Notes 5 October 2004).
John Daly, then Deputy Chairman of the Northern Land Council (NLC), described the Daly River as a 'significant ceremonial track' (NLC 2003) and warned 'water usage as planned will not only expose these sites visually but will also make them prone to destruction' (ibid.: 6).JH, a Wagiman elder and Ranger, said They're taking all the water from the river, we got all that sacred sites in the river, when the water gone, you know, the Dreaming might go away, that Dreaming needs the water over it… if it got nothing we get worried'.(Field Notes 16 February 2006) The water plan required quantification of volumes of water to be allocated to various uses, including agriculture, industry, public water supply and so forth, and a category of water use referred to as 'cultural' in the Water Act (Northern Territory).In a muddled and circular definition, cultural use was defined as 'water to meet aesthetic, recreational and cultural needs' (Jackson 2006a(Jackson , 2006b)).At meetings of Traditional Owners, Land Council staff and consultants, participants discussed how Aboriginal people might position themselves in response to the creation of a distinct category of water use, glossed as a 'cultural value'; what might be the implications of defining Aboriginal interests in such reified and essentialist terms (Jackson 2006a(Jackson , 2006b)?In one meeting John Daly ironically asked: 'how much water does culture need?' (Jackson 2004(Jackson :21, 2017)).
A Malak Malak elder, BL, related the dewatering of the Murray-Darling Rivers to local changes she had seen to the Daly River at Woolianna: the 'living water, he was pretty' but now was wider and shallower.BL stressed that she could tell 'from looking at it, not measuring it.I've seen from TV from NSW, him dry.White man waydon't care for that waterhow are you going to live?' (Field Notes 21 October 2003).Many of the people Sue Jackson spoke with had seen the devastation of the Murray-Darling Rivers on their TVs and the techno-managerial vocabulary employed in these new water planning processeswater allocations, mega litres, sustainable yields, environmental flowsseemed to bring the disaster of the Murray Darling Basin even closer.
Another Malak Malak Traditional Owner, ES, asserted a customary right of ownership of the river as an indissoluble entity, urging farmers to 'talk to the people who own the river.It's all right for them.They want to think about our future.All the animals.What's going to happen to our children who see the river like that?' (Field Notes 8 November 2003).Similarly, JT, a Malak Malak man who had given evidence in a land claim, spoke of the river as a coursing body with a life force, rather than a geophysical feature comprised of units of water: 'you have got to keep the river open, you cannot damage the river… leave 'im that river'.The Daly was 'very important for people all round.This one here he's one road, one river, him Daly River, he goes all up to Barunga. 7JT held the same view he had expressed in the claim 25 years earlier: the river needed to be looked after 'proper way' (Field Notes 4 April 2005).A Wardaman elder, BH, also invoked the struggle for rights during the Upper Daly land claim where they 'had a big fight' with agricultural corporations who had wanted the 'beds and banks'.BH explained that the beds and banks 'are our Dreaming too… Lightning people gave us the rain.We have to negotiate a deal' (Field Notes 8 December 2006).
In consultations about irrigation expansion, Rick Farley talked of catchment management and 'cultural flows' (Field Notes 16 May 2004), introducing a model of water rights then being advanced by Indigenous groups in the Murray-Darling Basin (MLDRIN 2007;Weir 2009).There, and throughout Australia, Indigenous groups confronted the settler management discourse in which water was constantly talked about as a natural resource separate to land, and one to which claims are made (Krause and Strang 2016).In the Daly, Traditional Owners, such as Malak Malak elder BL, differentiated their collective relationships to water from those of white Australians: 'we not own that water, everyone shares it, even the birds' (Field Notes 16 May 2004).
With support from the NLC, Aboriginal leaders formed the Daly River Aboriginal Reference Group (ARG) so that all groups along the river could get together to 'talk straight' (Field Notes 4 August 2004;5 October 2004).The ARG could provide a means 'to stand together and be united, to speak for each area but collaborate,' said JD.Reflecting the view common to this region that people are connected through water, FS, a Kamu man, explained that 'we've all got a common interest.We are TO's from that river.That river is our Country'.The ARG included representatives from all 11 language groups in the Daly catchment and for some years it functioned as the peak body for Indigenous landowners on natural resource management issues.Traditional Owners laid out their vision for an 'Indigenous Management Framework for the Daly River Catchment' in a submission from the NLC in 2006.
The submission reveals a thorough engagement with the National Water Initiative, which, for the first time in the history of Australian water policy, recognized Indigenous 'needs in relation to water access and management' (COAG 2004:5), even though it had only a tenuous reach into remote NT (Langton 2002a(Langton , 2002b)).The ARG 'realised that it was likely that land and water would be separated and a process for quantifying water allocation put in place' (NLC 2006:21).It called for, inter alia, a moratorium on new water licences and a review of the NT water legislation so that 'indigenous rights in water' would be 'recognised on a statutory basis' (ibid.:27).
It was at that time that Traditional Owners first appealed to the NT Government for a 'specific water allocation to be reserved' for use by Aboriginal people (Jackson 2006a(Jackson , 2006b;;NLC 2006).One of the propositions they brought to this contest was water as utility, which Merlan (1998) argues was evident in relation to land around Katherine in the early land claim era.Land came to be recognized by Aboriginal people as 'a potentially productive force external to them that they could "do something with" (ibid.:113).Additionally, the ARG did not want to see their participation in the water allocation planning process relegated to an advisory role on 'cultural values' (cf.Laborde and Jackson 2022).Instead, Aboriginal representatives aspired to have a determining role in achieving holistic, economically sustainable management of the waters and lands that constituted the countries connected by both surface and groundwater.Participation on this basis was articulated as an expression of contemporary Indigenous values (NLC 2006).
Researcher William Nikolakis later held workshops with Traditional Owners from the Oolloo Plan area, on behalf of the NLC, to understand preferred approaches to calculating the amount of water in a Reserve, and for its management.He reported in 2012 that the volume of the Reserve was 'deemed inadequate' and the method of determining the amount of water was 'arbitrary'.Traditional Owners expressed the desire for the Reserve to be managed collectively by a new body corporate that they would control (Nikolakis and Sustainable Environmental Group 2012): While economic opportunities were anticipated from the SIR 8 , Traditional Owners also saw it as providing them a management responsibility for this water.This could occur through direct engagement with proponents for entitlements from the SIR, and setting specific conditions for the use of this water.At the same time, Traditional Owners expressed concern that the development of WAPs would encourage increased extraction and lead to ecological degradation, and they argued cultural sites were not adequately protected by statute.Traditional Owners argued that the conditions they set on water use from the SIR would create better protection for the environment and cultural sites… This proposal was more than a mere mechanism for disposal of commoditised entitlements to water for economic benefit, but rather a means to assert greater control over the entire management process, including environmental and cultural sites.
In the following section, we describe the form that the Reserve was to take once legislated, some years after these foundational moments.

NORTHERN TERRITORY'S STRATEGIC ABORIGINAL WATER RESERVE (SAWR)
The legislative and policy framework In 2019, the Water Act 1992 (NT) was amended to include the ability to set water aside for future use by Indigenous people in the NT.The new legislation reinforced the link between eligibility to access water and exclusive possession of land, ensuring that entitlement to land (under the laws of the settler-colonial state) remains pivotal to Aboriginal peoples' access to water.To come into being, the SAWR requires the existence of at least one hectare of 'eligible land' (s4B) within a water allocation plan (WAP) area (s22C).The eligibility criteria affects both land to which the SAWR applies (and whether the SAWR exists at all), as well as the Aboriginal organizations that are eligible to access the SAWR.
The SAWR volumes operate on a stepped scale, so that 'in an area with more than 0% but less than 10% of eligible land, 10% of the consumptive pool will be reserved for Aboriginal use.If there is between 10% and 30% of eligible Aboriginal land in the plan area, then the reserve will correspond with the actual percentage.The reserve is capped at 30% in an area containing greater than 30% of eligible Aboriginal land' (Godden et al. 2020:676).For example, in the Roper/Mataranka region, Traditional Owners are in possession of approximately 70% of the land base of the WAP, yet the Reserve will be capped at 30%.Even exclusive possession of land above the land base cut off is insufficient to gain access to an equivalent share of water rights and the economic development this could support.
Use of water available from the SAWR relies on an additional step to allocate a water licence, a decision made by the Water Controller.Section 71BA (1) states that '[t]he Controller must not grant a water extraction licence in relation to an Aboriginal water reserve unless the Aboriginal persons of a class prescribed by regulation have given consent'.As of October 2023, these regulations do not exist, meaning that consent is currently not legally possible.
Further, although water licences are also still linked to land, it is envisaged that in the NT (as is already occurring in WA), the primary use of the SAWR will be to facilitate the leasing of water to non-Indigenous organizations.Leasing would potentially provide an income stream to the eligible Aboriginal organization(s), but in doing so, each lease would entrench the separation of land and water, as water would be used by others, on other land.
There is also no guarantee that water will be available for use under the SAWR.Even if Aboriginal people are willing to accept water licences issued from the SAWR (for their own use or to lease to others), the SAWR only exists within WAP areas, and only two of the current WAPs have non-zero allocations of water available in the SAWR (O 'Donnell et al. 2022).The policy requires the SAWR to be allocated in accordance with the eligible land, but where the water is already over-allocated, there is no process for returning water to the SAWR.As a result, some plans, such as the Ti-Tree WAP, have indicated a 22% volume for the SAWR based on the environmentally sustainable yield, but there is no water available for use at all (Table 1).
Although the SAWR model can potentially secure limited guarantees that Aboriginal interests in water are not entirely disregarded by over-allocation (as has occurred in southern Australia), the SAWR ultimately operates to constrain those interests to a commoditised form of water which is most likely to be made available for utilization by non-Aboriginal people, and the wider benefit may not flow to all land holders of eligible land.Nor does the SAWR empower Aboriginal people to have a stronger role in water management.For Aboriginal people to access water in the SAWR, they must choose to accept the NT water management processes as adequate, including their ability to provide sufficient water to support cultural and ecological health.As the following section that describes how these issues are playing out in relation to the Oolloo Plan will show, the SAWR comes with significant risks.
The Oolloo groundwater plan After many years of preparation, in 2019, the NT Government declared the Oolloo Dolostone Aquifer Water Allocation Plan (WAP) 2019-2029 (Fig. 2).That plan, which was declared before the amended legislation was enacted, was nonetheless based on the NT's Reserve policy (NT Government 2017).The model is embedded in a water allocation framework that seeks to divide water from land and partition some waters from other waters and regulate use within a delimited area.As the discussion above shows, and many others have argued, 'Bodies of water are constituted by Aboriginal people as being more than just a physical domain.They are construed spiritually, socially and jurally, according to the same fundamental principles as affiliations to terrestrial places in the land' (Langton 2006:144).Setting boundaries around water reflects and reinforces the epistemic privilege given to Western scientific hydrological and hydrogeological knowledge of water flows, and it risks severing relations with Country that are constituted and enacted at larger, sometimes regional scales.
As noted above, the Water Act 1992 frames water as a resource and conceptually separates water between the various specified 'beneficial use' categories (s 4(3)).Cultural use of water is defined as 'aesthetic, recreational and cultural needs' (s 4(3)(e)), and along with environmental needs, is ostensibly provided for before a WAP establishes an environmentally sustainable yield for water extraction from the plan area.However, although the WAP notes the need for 'a specific custodian's advice on the priorities for cultural protection' (NT Government 2019:55), there are no details as to how this advice would be provided, at what point in the water planning or allocation process it would be considered, and what weight the Water Controller would have to give to this advice in order to determine whether a licence to use water could be issued.Not only does this limit the role Aboriginal people can play in water governance, but it also constrains how water available under the SAWR can be used (the opposite of the request made by Traditional Owners in 2012).The SAWR must be used for the purpose of 'economic development by or for the benefit of eligible Aboriginal people' (s 4 (1)).Again, this is at odds with the expressed desires of the Central and Northern Land Councils, who argued for a definition that would encompass uses that do not rely on water extraction (referred to as non-consumptive), such as 'cultural uses' and values (Nikolakis and Grafton 2021).Further, 'economic development' is not defined, which potentially creates opportunities for Traditional Owners to stretch this definition but similarly increases the risk that 'economic development' needs to adhere to settler state norms.
Finally, as discussed above, the existence of the SAWR is predicated on the existence of over one hectare of eligible land.In the case of the Oolloo, this limits the accessibility of the SAWR to only the four Aboriginal organizations (ALRA Land Trusts) that hold eligible land intersecting with the boundaries of the Oolloo Dolostone Aquifer WAP (Fig. 2): (1) Wagiman Aboriginal Land Trust; (2) Wagiman (No 2) Aboriginal Land Trust; (3) Yubulyawun Aboriginal Land Trust; and (4) Upper Daly Aboriginal Land Trust.
As Fig. 2 shows, some land trusts span the boundary of the Plan area and therefore only some of the land for which they are responsible is deemed eligible land.For example, approximately 20% of the Upper Daly Land Trust is eligible land, while the rest is not.This artificial boundary created by the intersection of cadastral ALRA borders and the WAP boundary severely limits the ability of the Land Trust members to manage Country holistically.The ability of Land Trust members to access water available under the SAWR is likewise limited by the percentage of their land deemed eligible within the WAP boundaries, which is unrelated to the extent of land under their management.

Imposed water governance boundaries divide interconnected waters
The WAP boundaries effectively divide the waters of the Oolloo Dolostone Aquifer from other connected waters of the Daly region (Fig. 2).The plan applies to 'all groundwater within the Oolloo Dolostone Aquifer and all surface water discharges derived from that aquifer' that are extracted from within the Plan area.It acknowledges that the Oolloo Dolostone Aquifer is located within the Daly River catchment, as the 'plan seeks to protect the unique Daly River system' (NT Government 2019:10), yet it regulates only those waters extracted under licence within the Plan area.Flows of both ground and surface water connect Traditional Owners along the river, as well as Traditional Owners with rights and interests in the hydrologically connected groundwaters of the nearby Katherine area and beyond.This context is particularly important for the management of waters flowing through and below the plan area, as surface water discharge from regional aquifers sustain the flow in the Daly River during periods of low rainfall (most of the year).
A community consultation document that accompanies the Oolloo WAP (Northern Territory Government 2019) includes comments from Traditional Owners, who said that '[c] ultural flows must be sufficient to protect cultural values not only within the plan area but downstream of the plan area ', and additionally, that '[d]ry season flows entering the plan area (e.g., from the Flora and Douglas Rivers and Stray Creek) must not be taken within the plan area but allowed to flow through' (ibid.:6)This document also noted that there was strong support for the reinstatement of an Aboriginal Reference Group across the Daly catchment, emphasizing the hydro-social connections.
The Oolloo WAP acknowledges the importance of waters 'from outside the plan area'; for instance, groundwater hydrological studies have shown that the water within the Tindall aquifer flows from the Mataranka area towards the north (Currell and Ndehedehe 2022).Yet Traditional Owners are tied to Country downstream and upstream within the plan area through more than the material flow of water; they are connected through law, shared traditions, and histories.Visibility was given to these ties in the Oolloo WAP although no mechanisms were provided to empower them (Northern Territory Government 2019).
Although the spatial extent of hydro-social relations across the Daly region has not been studied, there are several accounts that refer to relationships that exceed the boundaries of the plan, even the catchment, to hydrologically connected lands and subterranean spaces that were created by the actions of ancestral beings.For instance, Merlan (1998) writes that the Rainbow, which is of earth and water, is a force that often makes itself felt in the form of major events such as rains, winds and even floods in the vicinity of Katherine.Katherine lies outside the Oolloo plan area on the Katherine River, a tributary of the Daly (Fig. 2).
Stories of the Rainbow are consistent with hydrogeological accounts of discharge from the Tindall Limestone Aquifer to the Katherine and Flora Rivers which contribute surface water flows in the Daly River during the dry season.Cooper and Jackson recounted Wardaman knowledge of the regional flows of water: In the Wardaman tradition, the spring at the Flora River was made by the Black-Headed Python, Walujapi, who thrust a digging stick into the ground.Walujapi pushed the digging stick through till it reached the spring water near Mataranka, and the water flowed back, creating the spring at the Flora River.(Cooper and Jackson 2008:32).
On a trip to the Giwining/Flora River with Wardaman Traditional Owners, HB told Sue Jackson that the billabongs on Florina Station (in the southern zone of the Oolloo WAP) are connected to the Rainbow serpent and that the 'Rainbow story is connected to other languages also'.HB said that the water level must be maintained, adding that 'another big billabong at Claravale 9 on Wagiman Country is same like one at Florina, also connected to Rainbow' (Field Notes 27 June 2007).
In a study further south, Jackson and Barber (2013:9) refer to the shared commitments of Traditional Owners from the Roper River, which is also dependent on groundwater flows, showing how people conceive of and use water as a way of creating relationships, connections, and boundaries that techno-managerial processes of water planning cannot accommodate: We [Wubaluwun people] are upstream, we are the point of origin.We are guardians for the downstream people and they are the guardians for us.The Elsey mob are getting us involved because we are upstream.They've got the underground water for us, and we've got the surface water for them.The ownership of the two goes hand in hand.(A.M.)While A.M. talks about the flows of surface waters and responsibilities in the catchment neighbouring the Daly, they recognize their dependence on Traditional Owners from Elsey Station who are downstream, and the need to make decisions about water together.In interactions the lead author had with Daly River Traditional Owners in the 2000s, no one called for groups as far as the Roper region or beyond to be formally involved in government decisions about the Daly, however, it was said that the river 'went all the way to Barunga', which is a long way beyond the surface water boundaries of the Daly catchment.

Boundaries within the Oolloo Dolostone Aquifer
The Oolloo WAP establishes three groundwater management zones (southern, central, and northern, see Fig. 2), which are not based on hydro-geological units.They are said to reflect 'regional scale groundwater flows' (Northern Territory Government 2019:37), but have been created for the purpose of facilitating water use.The zones enable 'management of groundwater extractions so as to not cause unacceptable changes in flow at the key environmental flow reporting sites while maximising the resource available for extraction' (ibid.:37,emphasis added).
This demarcation of land has implications that extend beyond the power to regulate water, affecting how benefits from water use are shared under the SAWR.As described above, water allocated to the SAWR is apportioned according to the proportion of Aboriginal land within each management zone.This spatial fix has created separate nominal allocations for each Land Trust and licenced access to zones of management that are based only on administrative convenience, with no consideration for customary water tenures or knowledge (as far as we aware).
Land Trusts can span multiple zones, for example, two Wagiman Land Trusts have rights to water from the Reserve in both the south and central zones, with the intent that they receive separate allocations of water in each zone (NT Government 2019:73).Multiple Land Trusts have interests in the SAWR in each zone, and it is unclear whether they receive separate volumes based on their percentage of eligible land, or whether the SAWR can be managed collectively within each zone.The NT government policy framework proposes an individualized model of decision-making in which each eligible Aboriginal organization can consent to the use of their volumetric portion of the AWR in isolation of other eligible (or ineligible) Aboriginal organizations (ibid.).
Other Land Trusts hold land completely outside the Oolloo WAP area but within the Daly River catchment, and some of these would benefit from surface water flows downstream of the WAP area (e.g., Malak Malak Land Trust around Nauiyu Nambiyu).For all these reasons, the question of who should consent to and benefit from using the available 'shares' of groundwater is an extremely complex and potentially contentious one.A previous comment from BH, who is a custodian for the land held by the Yubulyawun Land Trust, brings these deficiencies into stark relief.In a meeting of the Aboriginal Reference Group in 2006 BH said, 'everyone is boss for that river' (Field Notes 8 December 2006).
The SAWR is also no guarantee that water is available for use.The Oolloo WAP indicates that there is no water available in the SAWR in northern zone (because it was over-allocated at the time the WAP was created), so the Upper Daly Land Trust cannot access a share from that zone.The Oolloo WAP makes no commitment to or provision for the reallocation of water to the SAWR, thus undermining the idea of reserving water for Aboriginal use.
The current processes of the Water Act 1992 are insufficient to meet the previously expressed desires of Traditional Owners, both in terms of water volume (which is regarded as inadequate) or governance arrangements that include the interests from groups who may be affected from across the Daly River catchment and beyond, yet who are connected by water (Nikolakis and Sustainable Environmental Group 2012).

CONCLUSION
Under the regulatory regime of the settler state, water is regarded as a resource derived from hydrologic processes, such as groundwater recharge or monsoonal rain.To be governable, waters that move across or under the ground need to be bounded and rendered divisible into separate categorical units that can be delimited in space and time (Jackson 2022;Norman et al. 2012).For Aboriginal peoples, however, water eludes this type of classification and mechanisms such as the Reserve present 'a profound conceptual challenge represented by this ontological and cosmological difference' (Jackson and Barber 2013:16).
In this paper, we tell a story of the emergence and dominance of settler state conceptions of watera way of relating to water as a commodified resourceand a failure by the state to fully recognize and act on the continuity of pre-existing jural systems of rights and responsibilities.Over the past 50 years (at least), Traditional Owners in the Northern Territory have been seeking the means to regain control over their estates and holistically manage Daly River Country, and particularly the river which embodies and sustains life.As Stanner found in the 1930s, Aboriginal concepts have adapted to changing conditions.Land claim testimony shows that Traditional Owners asserted ownership of 'the river' and they expected to negotiate with the state over the means to institute social rules for using and managing it.Joint management of riverine space declared as a 'park' offered a workable solution in the early 1980s.At that time there was no significant threat from water extraction within the catchment, or to the groundwater beyond the catchment, which also sustains the Daly throughout the which also sustains the Daly throughout the dry season.
Similar concerns motivated Traditional Owners to advocate for a catchment management plan in the 2000s, but by this time land clearing for irrigated agriculture was a real threat that brought with it greater demand for water.The prospect of water trading intensified fears of the scale of extraction and its wide-spread material and social effects on all the groups who draw from land and water their identity and traditional relational patterns.The regional catchment-wide stakeholder committee and the ARG were dissolved in 2013 and since then 'there has been no forum for Aboriginal people, community and stakeholders to be involved in holistic consideration of strategic land and water planning and management' (NLC 2022).
The 'high modern' water discourse that was in many ways sourced from the Murray-Darling crisis emphasized individualized secure access (property) rights as the solution to conflicts over water.It was from such a socio-historical context that the notion of an Indigenous Reserve took hold.Since being instituted as law, the Reserve has come to represent an 'act of commensuration entailing a kind of ontological submission' (Salmond 2014:302) to the settler state entitlement framework.In this manner, the legal conceptualisation of a water Reserve for Aboriginal peoples is comparable to a similar redefinition of M aori ancestral relations to waters within settler law framings in Aotearoa.There, Salmond (ibid.)argues, ancestral relations are only afforded protection when redefined as property interests in a language based on possessive individualism.Recent legal experimentation in recognizing rivers as living beings, such as the 2017 Whanganui settlement (O 'Donnell and Talbot-Jones 2018), has tried to break the double bind of recognition identified by Salmond (2014), although the management arrangements for the Whanganui perpetuate the modernist tendency to separate water from the river and its wider socio-ecological relations by denying the river rights to water (O 'Donnell 2020).
Unlike the innovation seen in freshwater governance in Aotearoa, the Northern Territory's SAWR framework makes little attempt to acknowledge and respect philosophical and cultural differences and is unlikely to allow Traditional Owners of the Daly River region to uphold ancestral relations with Country for other reasons as well.First, Traditional Owners wanted a more comprehensive approach to governanceone that would involve all groups, take account of the social and material connections that water makes, achieve balance in protecting Country, while allowing some development from which they felt they were entitled to benefit.Second, although compatibility with the neoliberal entitlement framework should have led to rapid implementation of the SAWR it has in fact stalled.In 2023, four years after passing legislation to create the SAWR, the NT Government has not created the necessary regulations to underpin consent processes (O' Donnell et al. 2022).At the same time, the NT Government continues to promote large scale water allocation for non-Indigenous beneficiaries and more riparian land clearing is underway along the Daly.
A version of river management envisaged by Traditional Owners, or one that might have emerged from negotiation and experimentation, has been ignored in favour of conventional policies and laws that abstract waters, conceptually and materially, from their socio-cultural context while guaranteeing access to this 'resource' to settlers, whether they be fishers or irrigators (O'Donnell et al. 2022).Within the regime that facilitates resource extraction a limited opening has been created for Aboriginal people to benefit from this model of economic development, yet we have argued there is reason to fear that the divisions the SAWR enacts between waters and land could do real harm if they sever territorial relations, disrupt cultural traditions and generate conflict between Traditional Owner groups.

Figure 1 :
Figure 1: Map of the Northern Territory showing the Daly River catchment, Oolloo aquiferand the approximate location of Aboriginal language groups as shown in NLC(2006).

Figure 2 :
Figure 2: Map showing Oolloo aquifer in blue-green, the three groundwater management zones of the Water Allocation Plan (northern, central and southern, Aboriginal Land Trusts in brown, and eligible land hatched.