Lidia Thorpe (Victoria, Independent) Share this | Hansard source

I rise to speak to the Water Amendment (Restoring Our Rivers) Bill 2023. This bill represents the latest iteration of the colonial government attempting to restore the health of country in the Murray-Darling Basin, and, yet again, First Peoples have been left out of the process. As Wiradjuri woman and academic kate harriden pointed out, the title of this amendment bill raises two questions deserving deeper consideration: who is the 'our'—whose rivers are being restored—and why do rivers need restoring? Evidently it is not First Nations rivers being restored, given the absence of First Nations peoples and of our water ontologies, axiologies, management praxes or epistemologies in this bill.

To First Peoples, the earth is our mother. Water is the lifeblood that runs through country, connecting clans and songlines while nourishing the land. Since time immemorial, the knowledge and expertise of First Peoples has kept the lands and waters in the Murray-Darling Basin in optimal health while sustaining the cultural, social and economic wellbeing of communities who lived there. Our relationship with rivers, lakes and creeks is part of a deep sovereign connection with the country. To not only survive but thrive with over 250 distinct language groups for so many millennia on the driest continent on the planet, you need to have a very good understanding of water, where to find it, how to store and manage it, how to keep waterways clean and healthy, and how to ensure that all the life systems that depend on healthy waterways are kept in balance.

First Peoples have never ceded our sovereignty. As the Blak Sovereign Movement stated in their submission to the inquiry into this bill:

First Peoples have never surrendered. The war is ongoing. We are still here, we belong here and we maintain our rights, our borders, and our Sovereignty. This includes our water Sovereignty.

Australian law and policy has systematically failed to recognise and address these rights, leading to the marginalisation of First Peoples in water decision making and dispossession from water access, management and ownership.

First Peoples in the Murray Darling Basin have distinct, enduring sovereign rights and cultural obligations relating to the management and custodianship of our lands and waters. These rights, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP—to which Australia is just a signatory at this point—have been systematically erased and negated from water management and decision-making.

This bill as it stands represents the latest iteration of colonial governments' exclusion of First Peoples from water management and denial of our sovereignty and rights to care for country. First Nations currently own—get this—just 0.2 per cent of available surface water in the basin—0.2 per cent—while—wait for it—overseas multinational corporations own 12 per cent. In some regions, water ownership has decreased since the Basin Plan was legislated.

This exclusion is known as aqua nullius, and kate harriden provided a definition of aqua nullius and its implications in this bill: 'Aqua nullius refers to the systemic and deliberate exclusion of Indigenous water rights from settler-state water laws and policies and resultant water system. Dr Virginia Marshall describes it as "governments' lack of inclusion of Indigenous water rights and interests … and reconstructs Indigenous water rights as aqua nullius or 'water belonging to no-one'".

'Aqua nullius effectively allows First Nations water values and practices to be constructed and defined by Western frameworks and values. For those familiar with Indigenous water design principles, aqua nullius can most obviously be seen in the waterscape, particularly water infrastructure—for example, weirs or stormwater systems—and channel modification—for example, channel straightening or filling in wetlands.

'However, aqua nullius is most pervasive in laws and policies. This bill epitomises aqua nullius, given its utter absence of Indigenous water rights and commitment to constructing and maintaining physical infrastructure changes in the waterscape. Thus the primary implication of this bill is the ongoing exclusion of Indigenous water rights from settler-state water laws, policy and practice. First Nations water laws, values, customs and practices remain "subdued". Given the Water Act 2007 is unlikely to be reviewed again in the near future, the bill will further entrench aqua nullius, resulting in further erosion of pre-invasion waterscapes, water quality and opportunities for Indigenous peoples to express their water rights, knowledge and practices.'

This government has made big promises to First Peoples when it comes to increasing ownership of water and involvement in decision-making, and this bill offers a great opportunity to fulfil these commitments. I'm still in conversation with the government on how this bill could be improved, and I'm negotiating in good faith to ensure that the legacy of aqua nullius ends soon. Throughout the Senate inquiry process there was unanimous agreement from First Peoples and our representative bodies, environmental groups, irrigators and legal experts about what needs to happen to this bill to strengthen our water rights and deliver outcomes for our people. I acknowledge the need to get this bill through before the end of the year, but my question is simple: how much longer do we have to wait until we get a proper say in the management of water? How much longer do our sovereign rights and cultural obligations to care for country have to be denied? And how much longer do we have to stand by and watch our lands, waters, rivers, creeks and cultural heritage being destroyed by colonial systems of extraction before our science, knowledge and expertise is respected, before people realise that we have the solutions to restoring the rivers and country in the basin?

Our solutions don't involve markets or dodgy infrastructure projects. Our solutions do not involve relating to water as transactional, as a resource to be extracted and traded. In First Nations ways of knowing and being, water is life. It is core to our relationship with country. Since colonisation, First Peoples and our representative bodies have asserted our enduring sovereign rights to manage, own and access water on our country. This has occurred alongside decades of advocacy for the colonial state to recognise and uphold First Peoples' water rights and interests, including proposed amendments to the Commonwealth Water Act. There is unanimous agreement for many of the proposals that are being put forward by First Peoples in this inquiry.

As MLDRIN stated in their response to questions on notice, First Nations advocacy over several decades has been consistent and unequivocal in its call for recognition of First Nations rights in Commonwealth legislation, procedural justice and water access. MLDRIN's advocacy has been built on this policy platform over many years.

As outlined in my additional comments to the committee report, I have highlighted some of the key reforms that need to happen in this bill and the Basin Plan to improve First Peoples' water rights and outcomes. These include: ensuring tangible First Peoples' water rights and interests through delivery of WESA; further improvements to the Water Act to recognise basin First Nations' right to procedural justice and water access and ownership; aligning the act with the principles of the United Nations Declaration on the Rights of Indigenous Peoples, including our rights to use and manage natural resources on our own lands; our right to self-determination, in building our own sovereign nations to own and manage our own water; our right to free prior and informed consent; and also ensuring proper representation by First Peoples in all water resource plans and the next iteration of the Basin Plan.

Something else I have also pushed for which is crucial is for governments to genuinely resource a comprehensive basin-wide program of cultural flows without delay. This must include properly resourcing every First Nation in the basin and their representative bodies with sufficient and highly skilled staff and adequate funding to fulfil aspirations for genuine cultural-flows projects. It is critical that the Albanese government and Minister Plibersek do not miss this opportunity to fulfil some of the big commitments they have made, promising water justice for First Peoples.

I will not let this be another broken promise from the government, who talk big yet continue to exclude us and deny our sovereign rights to manage country. I foreshadow moving my second reading amendment and look forward to continuing to negotiate in good faith with the government to improve water rights and outcomes for First Peoples—I'm sorry the Greens have already sold out on First Peoples, but it's not surprising—and ensure that the rivers and waters in the basin can be rightfully cared for and returned to good health.