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Are we finally seeing action on Aboriginal water justice?

  • 15 April 2021
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