There’s a famous image from 1975 of Prime Minister Gough Whitlam pouring red earth into the hands of Gurindji leader, Vincent Lingiari, as a symbolic gesture of returning land back to the Gurindji people. It’s a powerful image and represents an important turning point in Australian land rights policy — a point when the federal government finally started to acknowledge that this nation state has been built on stolen land and that it was past time for restitution. But something that really strikes me about this image on a symbolic level, particularly as an academic that has spent their whole career focused on water, is just how dry the earth is.
During this period, the Whitlam government established the Woodward Commission to run an inquiry into Aboriginal land rights, and this ultimately led to the passage of the Aboriginal Lands Rights (Northern Territory) Act 1976 by the Fraser government. After this came similar legislation in the States, including the NSW Aboriginal Land Rights Act 1983. And then came the High Court decision in Mabo and others v Queensland (No. 2), which overturned the fictional application of the principle of terra nullius (‘land belonging to no one’) to the Australian continent, and led to the creation of the Commonwealth Native Title Act 1993.
Anyone familiar with Native Title will tell you that the defects in the scheme, particularly after the Native Title Amendment Act 1998 (introduced by the Howard government in the aftermath of the Wik decision), are multiple. These defects include the excessively onerous processes for both proving a claim and for administering the title even after it has been awarded, as well as the way that the process can lead to competition and conflict — these, and other defects, have been detailed elsewhere. What I want to focus on here is the dry earth — or, more specifically, the absence of water.
In the Murray-Darling Basin, for example, Aboriginal people currently own less that 1 per cent of water rights, despite making up 9.3 per cent of the population of this area. Recent research has documented some of the historical causes of this ongoing absence of water justice. These causes start, of course, with the original dispossession of land from Aboriginal people and the grating of this land and associated water rights to farmers and other settlers. When the land rights agenda emerged towards the end of the 20th century, deliberate decisions were made to restrict access mostly to land without water rights. Native Title also largely failed to deliver on its promise of recognising and returning customary rights to inland water.
Finally, from 2009 to 2018, researchers found that ‘the water rights held by Aboriginal people in the NSW portion of the Murray-Darling Basin shrunk by at least 17.2 per cent’. They attributed this decline to multiple factors, but emphasised the ‘forced permanent water (and land) sales arising from the liquidation of Aboriginal enterprises’ as being the most significant.
Similar statistics and policy patterns are evident across Australia, and it has led to an incredible injustice under which Aboriginal peoples are denied access to their own waters and, therefore, to the opportunities that would flow from that water. These opportunities include the economic benefits that would flow from agriculture, tourism and other water-reliant enterprises, but they also include the opportunity to exercise self-determination and to fulfil the obligations to care for Country in accordance with First Law.
'The idea is to move on from merely consulting with Traditional Owners and incorporating Indigenous cultural values into management practices, by returning water rights to Aboriginal people so that they are empowered to give effect to their responsibilities to care for Country and to benefit economically in the process.'
In response to this issue, the Indigenous Nations represented within Murray Lower Darling Rivers issued the Echuca Declaration in 2007. The Declaration recognises and reaffirms the sovereignty of each of the Indigenous Nations over its lands and waters, and that ‘[w]ater is a living being and should be treated accordingly. Many of our ancestral beings are created by and live in water.’ It goes on to define the meaning of, and to set out a mechanism for delivering, cultural flow outcomes.
In 2015-16, the Victorian government responded to the Echuca Declaration and the long history of Indigenous leadership in persistently fighting for water justice by launching the 2016 ‘Water for Victoria’ plan, which was developed through a partnership process with traditional owners. Chapter 6 of the plan contains a ‘roadmap to deliver water for Aboriginal cultural, spiritual and economic values.’
Now, a Melbourne University research project is helping to document this process and to help close the loop between recognising Indigenous cultural water values and delivering actual control over water. The idea is to move on from merely consulting with Traditional Owners and incorporating Indigenous cultural values into management practices, by returning water rights to Aboriginal people so that they are empowered to give effect to their responsibilities to care for Country and to benefit economically in the process. Indeed, as lead researcher, Dr Erin O’Donnell, explains, it makes no sense to separate cultural responsibilities from economic benefits, these concepts are completely interrelated since economic activities are always carried out according to cultural protocols — or, as a Traditional Owner stated during a workshop, ‘We need cultural water for our cultural economies.’
This project has already resulted in the first ever water hand back to Traditional Owners by the Victorian government — in November 2020, the state returned two billion litres of water to traditional owners (the Gunaikurnai Land and Waters Aboriginal Corporation). Hopefully, this represents the beginning of an important shift in the story of water justice in Australia, but clearly, we still have a long way to go.
Dr Cristy Clark is a senior lecturer with the Faculty of Business, Government and Law at the University of Canberra. Her work focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.
Main image: New flow in the Barka Darling river (Jenny Evans/Getty Images)