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Urgent water-law reform for Murray-Darling Basin First Nations

Urgent water-law reform for Murray-Darling Basin First Nations

Murray River Photo credit: Doug Gimesy Images Single Use Only (for this story). Contact photographer for any other usage.Melbourne Law School water law and policy expert Dr Erin O'Donnell and University of Melbourne project partners Murray Lower Darling Rivers Indigenous Nations (MLDRIN) have backed an open letter to Australian Federal Members of Parliament urging any amendments to the Water Act 2007 should recognise First Nations' inherent rights to water.Dr O’Donnell, writing with Grant Rigney, Chair of MLDRIN, has argued previously that despite decades of advocacy and leadership from Basin First Nations, neither the Water Act 2007 nor the Murray-Darling Basin Plan contain any recognition of First Nations inherent rights to water (cultural flows), and provide only weak procedural protections for First Nations engagement and consultation.She argues the Restoring our Rivers Bill continues this pattern of exclusion.The letter signed by more than 50 lawyers and academics including Dr O'Donnell, in regard to Federal Parliament's consideration of the Restoring our Rivers Bill - an amendment to the Water Act 2007 (Cth) - referred to a 'persistent and notable failure to acknowledge and safeguard First Nations’ rights and interests in water laws and policies'.The letter also referred to existing legislative framework's deprivation of 'First Nations opportunity to contribute to the health of the Basin and Basin communities'.In a press release, MLDRIN endorsed the letter's assertion that the Water Act 2007, and its potential amendments outlined in the bill, entrenched a water management framework that 'systematically excludes and discriminates against First Nations'.Dr Erin O’Donnell says: “The pathways to water justice are clear. Basin Nations have consistently argued for greater power in the care and management of waterscapes as well as increased water rights. We are only waiting on the political will to act – and the Australian Parliament now has the chance to take this much needed first step.”The University of Melbourne partnered with MLDRIN for The Cultural Water for Cultural Economies project ,which identified specific law and policy pathways to increase water access for Traditional Owners and First Nations across Victoria, and supported their use of this water for economic development in accordance with their laws and cultural protocols.- Open letter to Australian members of Parliament -Dear Member of Parliament,The Murray-Darling Basin (MDB) is Australia’s largest and most well-known river basin. It is also home to over 40 Aboriginal Nations, all of whom continue to endure the lasting impacts of water dispossession.While multiple rounds of water reform at both the State and Commonwealth level have sought to limit extractions and provide for ‘environmental flows’ across the MDB, there has been a persistent and notable failure to acknowledge and safeguard First Nations’ rights and interests in water laws and policies.This has culminated in legal and policy frameworks that almost entirely deprive First Nations peoples of any decision-making power over water management processes that affect their Country, communities, agency and well-being. This includes First Nations peoples routinely being deprived of access to Country and to culturally significant sites of water. It has also resulted in First Nations peoples owning a mere 0.2% of surface water entitlements across the MDB. More generally, declining river health has a negative impact on the ability of First Nations peoples to uphold customary law, meet obligations to their Country, to engage in cultural practices such as fishing, harvesting bush medicine plants, and to meet their cultural obligation to provide clean, flowing water to downstream neighbours.Significantly, the Water Act 2007 (Cth) (Water Act) does not refer to, or provide for, First Nations rights and interests in its objects; nor does it include substantive provisions capable of delivering any modicum of water justice to First Nations peoples. This critique extends to the Water Act’s subordinate instrument, the Basin Plan. Indeed, the Plan’s sole ‘concession’ to the Basin’s Aboriginal Nations is a series of provisions requiring ‘consultation’ in relation to the development of catchment-specific instruments known as ‘water resource plans’ (WRPs).  The most recent, proposed reform to the Water Act, namely the Water Amendment (Restoring Our Rivers) Bill 2023 (Bill), is entirely silent in relation to First Nations rights and interests. At best, this silence amounts to a tacit endorsement of the abysmal status quo. At worst, it serves to further entrench a water management framework that systematically excludes and discriminates against First Nations peoples. Further to this point, there is no reference to native title holders or their recognised prescribed bodies corporates. It is our view as legal practitioners and academics that the Water Act and its amending Bill are entirely inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was endorsed by Australia in 2009.  We therefore implore the Australian Parliament to break with the decades-long cycle of discriminatory water reforms and amend the Bill and Act to ensure that it is consistent with the UNDRIP, as well as with the recommendations of relevant non-government self-determined Indigenous organisations, such as the Murray-Lower Darling Rivers Indigenous Nations (MLDRIN). This includes amending the Water Act to require:the UNDRIP to be added to the list of ‘relevant international agreements’;the Water Act’s objects to explicitly provide for Basin Nation’s rights and interests, including in relation to customary law;the Basin Plan, WRPs and any other subsidiary instruments (and their preparation) to be consistent with the UNDRIP;the Basin Plan and WRPs to be developed on the basis of Basin First Nations water knowledge and cultural science;the contents of the Basin Plan and WRPs to substantively address and provide for the rights and interests of Basin First Nations, including customary law;the Basin-wide long-term annual average extraction limit to be capable of meeting Basin First Nations cultural objectives and watering requirements; andWRPs to include a program to deliver cultural flows (as defined in the Echuca Declaration) , sufficient to improve the spiritual, cultural, environmental, social and economic conditions of Basin First Nations within the WRP area. Basin Nations must have agency over how this work is conducted, including who is engaged to undertake its delivery without limitations.We believe that these legislative amendments must be complemented by adequate resourcing across two key areas. This includes proper resourcing of:Basin First Nations, including their nominated non-government self-determined representative Indigenous body or bodies to:1. employ the necessary operational staff to ensure thriving sustainable businesses that support Nation building; and2. to undertake the program of work required to develop Nation-based cultural flows projects.The Aboriginal Water Entitlements Program, to ensure that it can provide meaningful pathways towards water entitlements being owned and managed by Basin First Nations.The Australian Parliament has a critical decision before it which will have tangible and lasting consequences for Basin First Nations. We trust that this decision will be a resounding rejection of the status quo and that Australia will hold itself to a higher standard by, inter alia, aligning the Water Act 2007 and its subsidiary instruments with UNDRIP.Yours sincerely,1. Professor Amanda Kennedy, Deputy Head of School and Director of Engagement. School of Law, Queensland University of Technology2. Associate Professor Amelia Thorpe, Director of Postgraduate Studies, UNSW Law and Justice3. Angela Kintominas, Lecturer, UNSW Law and Justice4. Ben Boer, Professor Emeritus in Environmental Law, University of Sydney Law School5. Professor Benjamin J. Richardson, Professor in Environmental Law, University of Tasmania6. Professor Brendan Edgeworth, UNSW Law and Justice7. Professor Bronwen Morgan, UNSW Law and Justice8. Dr Bruce Lindsay, Senior Specialist Lawyer and Justice Team Lead, Environmental Justice Australia9. Professor Cameron Holley, Head of School, UNSW Law and Justice10. Carley Bartlett, PhD Candidate, UNSW Law and Justice11. Casey-Lee Hirst, Lecturer in Education, Law and Digital Marketing, UNSW Law and Justice12. Chris Ronalds AO SC, Barrister, Frederick Jordan Chambers13. David Morris, CEO, Environmental Defenders Office14. Elizabeth McKinnon, Co-CEO, Environmental Justice Australia15. Dr Emma Carmody, Water Lawyer; Co-founder and Director of Legal and Governance, Restore Blue; Director, Alliance for Global Water Adaptation (AGWA)16. Dr Erin O’Donnell, Senior Lecturer and ARC Research Fellow, University of Melbourne Law School17. Fenja Berglund, Barrister, Martin Place Chambers18. Fiona McLeod AO SC, Barrister, Owen Dixon Chambers West; Senior Counsel Assisting the Yoorrook Truth and Justice Commission19. Professor Gerry Bates, University of Sydney Law School20. Helen Gibbon, Senior Lecturer in Criminal Law, Director of Undergraduate Studies, UNSW Law and Justice21. Jane Needham SC, Barrister, 13th Floor St James Hall; Former President, NSW Bar Association22. Jason O'Neil, Wiradjuri man, Lecturer in the School of Global and Public Law, Director of Indigenous Legal Education, UNSW Law & Justice23. Janice Gray, Honorary Associate Professor, UNSW Law and Justice, Solicitor, Supreme Court of NSW24. Professor Jennifer McKay AM, Professor of Business Law, University of South Australia - Justice and Society; Fellow International Water Association SA25. Jonathan Hunyor, CEO, Public Interest Advocacy Centre26. Associate Professor Justine Bell-James, T.C. Beirne School of Law, University of Queensland27. Dr Kate Owens, Director, Australian Centre for Climate and Environmental Law, University of Sydney Law School28. Professor Kathy Bowrey, UNSW Law & Justice29. Kathryn Ridge, Deputy Chair at Murray Darling Wetlands, Solicitor & Director, Ridge Legal30. Kayleen Manwaring, Senior Research Fellow, UNSW Allens Hub for Technology, Law and Innovation31. Dr Louise Boon-Kuo, Senior Lecturer, Academic advisor to Indigenous students in Law, University of Sydney Law School32. Professor Lucas Lixinski, UNSW Law & Justice33. Dr Madeline Taylor, Director of Research Training and Senior Lecturer at Macquarie Law School, Deputy Director of the Centre for Energy and Natural Resources Innovation and Transformation34. Associate Professor Maria Giannacopoulos, UNSW Law Justice35. Mark Seymour SC, Barrister, Martin Place Chambers36. Professor Nicole Graham, Associate Dean of Education, University of Sydney Law School37. Professor Prue Vines, UNSW Law and Justice38. Dr Rachel Killean, Senior Lecturer, University of Sydney Law School39. Richard Beasley SC, Barrister, Nine Wentworth Chambers40. Professor Rosemary Lyster, Professor of Climate and Environmental Law, University of Sydney Law School41. Associate Professor Ruth McCausland, Director of Yuwaya Ngarra-li, UNSW42. Sean Ryan, Principal Lawyer, Ninox Law43. Semisi Tapueluelu, Senior Lawyer, Justice Team, Environmental Justice Australia44. Simeon Beckett SC, Barrister, Maurice Byers Chambers45. Professor Simon Rice, OAM. Kim Santow Chair of Law and Social Justice, University of Sydney Law School. Chalk & Behrendt, Lawyers and Consultants. Chair, Welfare Rights Centre46. Professor Susan Park, Professor of Global Governance in International Relations, University of Sydney47. Professor Surya Deva, UN Special Rapporteur on the Right to Development, Director of the Centre for Environmental Law, Macquarie University48. Dr Tanya Mitchell, Senior Lecturer, University of Sydney Law School49. Tony McAvoy SC, Barrister, Frederick Jordan Chambers50. Vicki Sentas, Senior Lecturer and researcher, UNSW Law and Justice51. Zsofia Korosy, Lecturer in Law and Justice, UNSW13 November 2023

Published 14 Nov 2023

Environmental offsets: problems and possibilities across carbon, water and biodiversity

  • Climate

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    Thursday 19 October 2023, 12.30-2.15pm, Room 317MCLE Annual ForumPolicies and laws for environmental offsets are now used across domains as diverse as greenhouse gas emissions, biodiversity and water at both international and national levels around the world. Despite their growth and the controversy that framework for offsets have often attracted, there has been little attention to the potential for lesson-learning across different offset domains.This forum aims to start this cross-cutting discussion with a panel of two speakers reflecting on offsets in different contexts.

    Published 13 Nov 2023

    Environmental lawyering and professional responsibilities in crisis?

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    Monday, 11 September 2023, 4.00-5.30pm, Room 317A discussion with Steven VaughanAs a species and as a planet, we are facing significant environmental harms, many of which are highly likely to only get worse over time - climate change, air pollution, biodiversity loss, deforestation, chemical harms, waste pollution, poor water quality, and so on. Somewhere in the story of each of these forms of environmental harm are environmental lawyers. They work in law firms large and small; they work for the government and regulators as civil servants; they work in-house in large corporations and charities. These lawyers lubricate, lobby, legislate, and litigate for their clients. In his recent inaugural professorial lecture and paper, Professor Steven Vaughan has suggested that some of the environmental harms that environmental lawyers help their clients bring about, ‘perfectly legally’, raise important and significant questions about the ethics of that lawyering. Do environmental lawyers do things that cost society – in the form of environmental harms – too much? And does legal ethics (written down in regulatory rulebooks and, more generally, in the theories of lawyers’ ethics) help or hinder those actions?In September we hosted a discussion with Steven Vaughan about environmental lawyering and professional responsibilities and also heard from other legal scholars and practitioners working on lawyers’ roles and responsibilities in our current environmental predicament.Co-hosted by CREEL, Melbourne Climate Futures, and the Australian Legal Ethics Network at Melbourne Law School.

    Published 13 Nov 2023

    Brainstorming Workshop on Environmental Offset

  • Climate

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    Published 13 Nov 2023

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    Published 02 Nov 2023

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