Returning water rights to Aboriginal people

Water justice is a critical issue for Indigenous Peoples, but there are legal and policy opportunities to hand back water rights to all First Nations and Traditional Owners

Dr Erin O’Donnell and Professor Lee Godden, University of Melbourne; Dr Katie O’Bryan, Monash University; Will Mooney, Lauren Chester and Grant Rigney, Murray Lower Darling Rivers Indigenous Nations

Dr Erin O'DonnellProfessor Lee GoddenDr Katie O'BryanWill MooneyLauren ChesterGrant Rigney

Published 6 April 2021

“We’ve been managing the river as custodians from the beginning of time, but governments are not asking us how we did that.”

Water justice is a critical issue for Aboriginal people who currently own less than one per cent of water rights in Australia’s Murray-Darling Basin. Lack of access to water deprives Aboriginal people of opportunities to exercise self-determination, care for Country, and generate wealth from agricultural production.

Aboriginal people currently own less than one per cent of water rights in Australia’s Murray-Darling Basin. Picture: Getty Images

First Nations and Traditional Owners continue to assert their “inherent right” to cultural flows. These are “water entitlements that are legally and beneficially owned by Aboriginal Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Aboriginal Nations”.

Our report, Cultural Water for Cultural Economies, launched at the Full Gathering of the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) First Nations delegates on the banks of the River Murray at Barham, is an important step towards water justice.

The Cultural Water for Cultural Economies project was funded by a Victorian State Government commitment to create the Roadmap for Aboriginal Access to Water for Economic Development and is a result of a collaboration between the Victorian Department of Environment, Land, Water and Planning, MLDRIN, the Federation of Victorian Traditional Owner Corporations (FVTOC) and the University of Melbourne.

“we don’t want to trade culture for economics.”

First Nations and Traditional Owners hold the knowledge, stories, custodial obligations and cultural knowledge that have always ensured the health of waterways and river Country, and the project depended on their willingness to share their expertise with the research team.

Representatives from 20 Traditional Owner groups and First Nations attended more than 40 workshops and meetings over two years, from December 2018 to March 2021.

The First Peoples of Millewa Mallee at Horse Shoe Lagoon. Picture: Will Mooney

From the outset, this project has responded to the connection between sovereignty and self-determination, healthy Country, healthy people and economic development.

“we want to own the water, we want to have a say, we want to have control over it.”

Our report identifies four clear pathways and specific opportunities to hand back water to Traditional Owners and First Nations across Victoria under the current legal and policy settings.

Firstly, by increasing use of existing rights to water. For example, all Traditional Owners with an agreement under the Traditional Owner Settlement Act 2010 have access to a s8A water right, but none of the eligible Traditional Owners are using this right to access water, indicating that it is not fit for purpose and requires reform.

Secondly, access to unallocated water. Although many parts of Victoria are fully or over-allocated, there is some water that is considered available for use but is currently unallocated to any individual user, particularly across southern Victoria. Access to this water is a relatively straightforward pathway to increase Aboriginal water ownership.

Thirdly, the provision of treated, fit-for-purpose recycled water. Recycled water can be used to substitute for existing water extractions from rivers (which then enables this water to be transferred to Traditional Owners), or the rights to use the recycled water can be transferred directly to the Traditional Owners.

Both options may be of interest on a case-by-case basis.

And finally, water reallocation via purchase or other agreement. This pathway requires political leadership and government funding, like the Commonwealth Government commitment of $A40 million to acquire water for Aboriginal people in the Murray-Darling Basin. This commitment to water reallocation via the water market is under pressure, but remains crucial for water justice, as it is the only pathway for substantive surface water access for Aboriginal people in northern Victoria.

Budj Bim in the traditional Country of the Gunditjmara people. Picture: Erin O’Donnell

Although the report also identifies key barriers to water access, there are specific opportunities for water hand-back to Traditional Owners that exist under the current legal and policy settings.

With leadership and commitment from government, real progress in addressing the staggering injustice of Aboriginal exclusion from water ownership is possible.

“if you control water, you control a lot.”

The project has already led to Victoria’s first ever water hand back to Traditional Owners (the Gunaikurnai Land and Waters Aboriginal Corporation) late last year, who have received two gigalitres of water on the Mitchell River in Gippsland.

More water hand backs are underway in the south-west of Victoria, as well as in the Birrarung/Yarra River in Melbourne.

The Cultural Water for Cultural Economies project builds on the National Cultural Flows Research Project, and is already contributing to the national policy agenda on Aboriginal and Torres Strait Islander rights and interests in water, including the forthcoming Close The Gap target for inland waters.

Our research showcases the leadership of Traditional Owners and First Nations in their pursuit of water justice. Nations are ready, willing and able to hold and manage water in accordance with their cultural protocols, and the onus is now on governments to take the necessary steps to hand back rights to water to all First Nations and Traditional Owners.

“Give us our water, and we’ll show you what we can do with it.”

The authors acknowledge the First Nations and Traditional Owners of Victoria and their Elders past, present and emerging. We gratefully acknowledge the time, energy and expertise of First Nations and Traditional Owners who participated and we also acknowledge that this paper does not speak for any Nations or Traditional Owners, and some of the options presented may not be appropriate or acceptable to all Traditional Owners.

Note: all quotes are from Traditional Owners and can be found in the final report.

Banner: Reedy Swamp (near Kaiela/Goulburn River, Yorta Yorta Country)/ Erin O’Donnell

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