Water laws in Australia can incorporate Indigenous knowledge

Water, water, used to be everywhere

Australia’s environmental laws have been thrust into the spotlight recently. A new government promising to reform the country’s feeble environmental laws and seeking to amend the calamitous findings of a long overdue national report on the state of the environment has ignited conversations about how to rectify the multitude of problems at hand.

But amid the growing clamour for effective mechanisms to curb rising carbon emissions and protect against environmental destruction, runs an undercurrent of business as usual. Perhaps no more so than with regard to water: who has access to it, how much is harvested, and what is left for the environment and communities it’s meant to sustain.

Another damning and long-awaited report, published in August, was scathing in its review of the decade-old Murray-Darling Basin Plan, which, it found, had no chance of returning the 450 billion litres of water it had promised to redirect back into the interstate river system by 2024. Extracted and traded by irrigators and landholders, little water is left for the river.

And yet there is a rich well of traditional Indigenous knowledge of water systems that persists as it has for millennia in the driest inhabited continent on Earth. Aboriginal peoples’ long-held connections to Country reveal a deep understanding how, when and where water flows, and how it should be managed for generations to come – knowledge that could reinvigorate our water laws.

There is a rich well of traditional Indigenous knowledge of water systems that persists as it has for millennia in the driest inhabited continent on Earth.

“In rivers, you don’t do anything that’s going to impact someone downstream,” says Associate Professor Bradley Moggridge, a Kamilaroi water scientist and University of Canberra hydrogeologist. But he says environmental laws in Australia don’t give Indigenous people a say in water management: “We are pretty much excluded. A lot of the time we are advisory, if that, and our advice is rarely taken.”

That’s because Australia, like many other colonial nations, has a long, ugly history of denying Indigenous people rights to water on their ancestral lands, even after native title was recognised in the early 1990s.

More on the Murray-Darling plan: Want water for the Murray-Darling Basin? Don’t ask a zombie

Around the same time the Native Title Act – which technically recognises rights to land and water – was being ushered into law, reforms to water laws were being pursued that ultimately divorced water rights from land titles. This was so water could be traded, in a system designed to cap the amount extracted, and reserve enough water to restore the health of ailing rivers systems.

That untimely coincidence of events meant that “where native title was recognised, it didn’t come with water rights,” explains Dr Elizabeth Macpherson, an environmental law expert at the University of Canterbury specialising in Indigenous water rights. “It wouldn’t have been logical or comprehensible to Aboriginal and Torres Strait Islander communities that the land wouldn’t come with the water, but that’s effectively what it meant.”

“We are pretty much excluded. A lot of the time we are advisory, if that, and our advice is rarely taken.”

Brad Moggridge

Locked out of the water market from the start, Aboriginal people now hold less than 2 percent of water entitlements in the Murray-Darling Basin – a tiny fraction of a billion-dollar water industry. And across the continent, Aboriginal people hold tenure to more than 30 percent of Australia’s total land, yet they have been granted less than one percent of water allocations – and only for customary, not commercial, purposes.  

“It was a real oversight and an expensive oversight to try and rectify now,” Macpherson says of the legal unbundling of water rights from land titles.

Aerial view of two rivers intersecting
The intersection of the Darling and the Murray river at Wentworth, 15 August 2019. Credit: Mark Evans / Stringer / Getty Images

Macpherson says it would be “entirely possible” for state and federal governments to fund the reallocation of water to Aboriginal communities to remedy historical injustices. One example is the recent allocation of Mitchell River water in Gippsland to the Gunaikurnai people, ten years after their native title claim was first recognised.

This is the model used in Chile, a country that is also reckoning with critical water shortages and extractive industries that have deprived Indigenous peoples of water resources.

Although Chile’s dictatorship-era water code is deeply problematic, its ‘free market’ principles fuelling water scarcity and conflict, the country has a fund for buying back water allocations for Indigenous communities, created under its Indigenous law of 1993.

“If we threw out water law and got my elders to write water law, we’d have a different system, that’s for sure.”

Brad Moggridge

Notably, Macpherson says it doesn’t restrict Indigenous people – many of whom are agricultural producers – from using water for commercial purposes the way Australian water law has. “There’s a reciprocity there [where Indigenous people] can use the environment and look after it; it’s not one or the other,” she says.

But Chile faces an uncertain future. The country needs to chart a way forward after its so-called ‘ecological constitution’ was voted down by its citizens earlier this month. However, Macpherson says constitutional reform doesn’t always guarantee environmental protection, and that there are other legal approaches.

“Just having environmental rights or protections in the constitution is not enough,” she says. “You’ve got to have strong institutions that are prepared to uphold those [rights] and sufficient funding so that those institutions can do the work.”

Moggridge, who was enthused by Chileans’ democratic efforts, says Australia urgently needs to reform its environmental laws, which failed to protect Western Australia’s Juukan Gorge from destruction. Same goes for our water laws that see the precious resource divvied up and diverted, siphoned and stockpiled.

“It’ll take a very courageous government to change a lot of this,” says Moggridge, suggesting that Australia’s water laws should be rewritten with Indigenous leaders so that water is no longer disconnected from the lands through which it runs. “If we threw out water law and got my elders to write water law, we’d have a different system, that’s for sure.”

“Where native title was recognised, it didn’t come with water rights.”

Elizabeth Macpherson

Macpherson says inspiration could be drawn from Te Awa Tupua, the legislation that in 2017 recognised the Whanganui River (which flows through Aotearoa’s North Island) as a spiritual ancestor of the local Whanganui iwi people. In doing so, it enshrined in law Indigenous belief systems around how the river should be managed.

“It puts the health of the river first and recognises the interdependence between the health of the communities and the river,” says Macpherson of the legislation. It also recognises that the river is a living ancestor and that people have an obligation to come together to care for it, she says.

More on water law: Murray Darling Water Trading

Even without rewriting Australia’s water laws entirely, Macpherson says realigning legislation to reflect Aboriginal approaches to land management – firstly agreeing on the values used by traditional owners to govern and manage river systems – is what could set our bone-dry country on a more sustainable path, one capable of enduring extreme cycles of droughts and floods.

“Understanding those cycles is crucial to surviving,” says Moggridge of his people’s plight. “That’s the thing for Indigenous people here in Australia, survival is built in. And even today we’re surviving policy; we’re surviving legislation.”

“Country is sick, water is sick, the climate is sick – and Indigenous people are here, ready and waiting.”

Brad Moggridge

Late as it was, the 2021 national State of the Environment report represents a pivotal moment. For the first time Indigenous assessments of the health of Country were included, with Indigenous co-authors on all but one chapter of the national environmental scorecard.

Moggridge says Australia needs to build on this and involve more Indigenous people in environmental assessments, collecting culturally-informed environmental data and providing evidence that can influence policy.

“It’s been a lonely charter for me, especially in the water space,” says Moggridge, one of only three Indigenous hydrogeologists in Australia, soon to be four.

“If we have more [Indigenous] practitioners in this space, we can then provide credible evidence that can influence policy and that credible evidence is linking western science with traditional science to come up with better solutions.”

“Now is the time,” Moggridge continues. “The [State of the Environment report] gives us that opportunity to say country is sick, water is sick, the climate is sick – and Indigenous people are here, ready and waiting. We’ve got 65,000 years of observation and connection and understanding of our respective countries – and we’re ready.”

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