Indigenous Nations’ involvement in water for the environment

In the first instance, we capture efforts of environmental water managers in the Murray-Darling Basin to work in partnership with Indigenous Nations in the planning and delivery of water for the environment.  

Firstly, it is important to make the distinction between the use of water for the environment to achieve Indigenous environmental outcomes and objectives, and Indigenous water ownership as part of Cultural Flows. They are different, and this is important.  

The Echuca Declaration published by the Murray Lower Darling Rivers Indigenous Nations (MLDRIN, 2007) defines cultural flows as:

In contrast, environmental water is water that is largely held by government departments and allocated specifically to support the needs of water dependent plants, animals or ecosystems. It is used to help restore components of the natural flow regime to rivers, creeks and wetlands. Water for the environment can have beneficial outcomes for Indigenous Nations, however, it is important that people understand that “Aboriginal environmental outcomes [from the use of environmental water] are not cultural flows or cultural water, nor a substitute for them” (MLDRIN, 2017)

The diagram below reflects these differences. While it does suggest the potential for overlap between environmental water and Cultural Flows in achieving benefits for Indigenous Nations, it shows that they are distinctly different, and assumptions should not be made that there will be overlaps in use. Often environmental water could have potential outcomes which have a cultural benefit, such as improvements in fish populations, reed growth and bird breeding, and these can be identified by having Indigenous Nations involved in water planning and management. These environmental flows are still, however, for the environment, and not a substitute for Cultural Flows.

Figure 1: The relationship between outcomes for Indigenous Peoples from Cultural Flows and environmental water (MLDRIN, 2017 – Murray-Darling Basin Authority)

Involvement in environmental water planning and use

Like almost everything related to water, it is important to reflect the scale at which you are speaking about. Is it a single wetland, a series of wetlands, a floodplain, an anabranch, a catchment or a basin? Your answer will allow a certain level of resolution. For Indigenous Peoples and their engagement in the management of water for the environment, it is important that their voices are built-in from the start, and at all levels of planning and delivery. In this section, we provide examples of how water managers and Indigenous Nations are working together at different scales to plan and deliver water for the environment in the Murray-Darling Basin.

Site-scale planning and delivery

Indigenous Nations’ involvement in planning and delivery of water at the site scale is critical. Increasingly, environmental water management agencies recognise the importance of working with Indigenous Nations to achieve optimal environmental outcomes. Engagement in planning at the site-scale takes many forms, but some examples to date include:

• The Living Murray’s Indigenous Partnerships Program, which funds employment and on-ground projects along the River Murray.
• Engagement activities undertaken through state and local land management agencies, including the implementation of Aboriginal Waterways Assessments, on-Country planning days, and other Culturally Appropriate methodologies employed by Indigenous Nation groups.
• Partnership agreements such as those entered into by the Commonwealth Environmental Water Office with the Nari Nari Tribal Council to manage the property ‘Gayini-Nimmie-Caira’ in the lower-Murrumbidgee.

System-scale planning and delivery

Over the past 10 years, planning and delivery of water for the environment has evolved from site and single catchment deliveries to coordinated, system-scale water use across multiple major river systems. Among a range of steps to strengthen the involvement of Indigenous Nations in planning and using water at a system-scale, two significant steps have been taken in the past four years.

1. The development of processes to incorporate Indigenous Nations’ input into planning at a system scale; notably, the ‘First Nations Environmental Water Guidance Project’ (FNEWG) in 2019-20 (MDBA, 2021), and the Mildura Statement to Environmental Water Holders for water use in the 2021-22 water year (Indigenous Nations, 2021); a process which has been continued for 2022-23. Both these processes allowed multiple Indigenous Nation groups to be part of the planning for large-scale, multi-site environmental watering activities which deliver outcomes of system significance and ensure the most efficient and effective use of environmental water.
2. The second is the inclusion of representatives of Indigenous Nations to attend meetings of the Southern Connected Basin Environmental Watering Committee (SCBEWC), a joint committee of NSW, Victorian, South Australian and Commonwealth agency staff. The committee makes decisions on the use of environmental water held by The Living Murray program and coordinates environmental water use across five agencies in the southern Murray-Darling Basin. This commenced in 2020 and is captured in the SCBEWC Annual Report for 2021-22 (MDBA, 2021). 

These steps are significant, because they allow water managers and Indigenous Nations to plan together across the landscape to determine the most efficient, effective and seasonally-appropriate flow patterns for environmental water use. The FNEWG project and the Mildura Southern Basin Statement also present a system wide view for healthier waterways from Indigenous Nations.

The Mildura Southern Basin Statement also opens with several poignant paragraphs that remind agencies that while Indigenous Nations are willing to engage in these processes to help care for the environment, they by no means want this to be taken as an endorsement of the structures in place which continue to reflect the dispossession and impacts of colonisation, and the water management arrangements which have excluded them.

The full statement has subsequently been included in State and Commonwealth water planning documents, and is worth re-reading again every now and then to remind us all of the long way to go in this space. 

In addition to these processes designed to enable Indigenous Nations to collaborate on site and system-scale water planning and use, are appointments of Aboriginal people to senior roles such as the Board of the Murray Darling Basin Authority (current), the Chair of the Basin Community Committee (current) and the Commission of the Victorian Environmental Water Holder (from 2017-2022). Aboriginal people taking on these senior roles are strengthening engagement at all levels of the water management process. Other states and agencies should continue to look for opportunities to have Indigenous people in senior positions, as this is a critical step in working to protect and restore our water-dependent ecosystems. It is also critical that agencies continue to ensure engagement is culturally safe, that Free, Prior and Informed Consent is given, and that Cultural Intellectual Property is protected and respected.  

A key focus for water management agencies now is providing opportunities for Indigenous Nations to participate in monitoring and evaluation of watering to measure the benefits. Two-way exchange of knowledge is essential if we are truly committed to providing Cultural Flows. For Indigenous Nation groups, being able to navigate the complex agency and management arrangements (e.g. who does what?, what are the licensing arrangements?, flow rates and constraints etc.) will potentially support more active management of Cultural Flows. Likewise, water management agencies are establishing genuine working partnerships with Indigenous Nations to deliver water for the environment, recognising that they cannot achieve the best environmental outcomes without working with Traditional Owners. It is hoped that the steps above will support Indigenous ownership of water in their own right. 

Indigenous ownership of water – Cultural Flows

Alongside involvement in planning and delivery of environmental water, a conversation about returning water rights to Indigenous Nations has increasingly grown louder. This has been labelled as Cultural Flows and, as described above in the Echuca Declaration, are water entitlements owned by Indigenous Nations that are used for a variety of purposes, including economic, cultural, environmental, spiritual and social outcomes.

Following the Echuca Declaration, efforts to recognise and enable Cultural Flows have included some of the following steps:

• The National Cultural Flows Research Project, a project “to develop rigorous and defendable knowledge on First Nations’ water interests.” (Water for First Nations | Murray-Darling Basin Authority (mdba.gov.au)) 
• Recent commitments from the Federal Government to deliver on $40 million announced in 2018 for cultural flow entitlements, noting that a lack of progress on this package has been a source of extreme frustration over 4 years. 
• 2 GL of water returned as Cultural Flows in southern Victoria (Gunai Kurnai and Gundijmara) and, in early 2022, water was flagged to be returned to Nations within the northern Victorian part of the Murray Darling Basin. 

These efforts are a start, but Indigenous rights to water still have a long way to go. The proportion of water that is allocated to other water users, like irrigators or the environment, is immense compared to the small fraction that is allocated to Cultural Flows. Figures often cited in the Murray-Darling Basin are that Indigenous Peoples hold less than 1% of water, and this can be as little as 0.2% in parts (Hartwig et al., 2020). 

Changing the way we view our rivers

The way we view our rivers and water also shapes their ownership and use. Looking at recent publications from Indigenous perspectives on the environment, the difference between Western perspectives on nature and water as resources to be harnessed, and Indigenous perspectives about rivers being part of the living landscape, are evident. Some examples of these stories are captured in Rivers, the Veins of our Country. They focus on the idea that “if we look after it, it will look after us”. In contrast, western perspectives often imply the idea of controlling and exploiting water.  

In recent times, Western ideals have been reimagined through the Rights of Nature movement, which rejects the notion that nature is human property. The manifest of this movement is that the highest legal protection needs to be for ecological health, as human beings are just one part of the larger, interconnected web of life, completely interdependent on the rest of the natural world.  

The Rights of Nature movement has been used to grant legal personhood to nature with examples in Aotearoa (New Zealand), where three key environmental features now have legal personhood: Te Urewera National Park, the Whanganui River, and Mt. Taranaki. The rights of nature in New Zealand aims to use traditional knowledge and ways of understanding the environment and its ownership, which stems from the Māori idea that the environment has living spirits.  

There are criticisms of the Rights of Nature movement’s use and relevance in Australia, notably from Dr Virginia Marshall, who explains that it further reduces the rights of Indigenous peoples, and outrightly removes their ownership of the land that their ancestors have been living on for 60,000 to 80,000 years. This is because the approach legally separates Indigenous communities from caring for Country and acts as another colonial tool to remove Aboriginal peoples’ inherent rights and interests, perpetuating an ongoing cycle of further disempowerment for Indigenous nations. 

There are however potential benefits from recognising our rivers as legal entities in that they can then have a right to exist, be healthy and to flow. In some examples around the world, while the river has been given legal personhood status, it does not include the water within its banks, leaving the river unable to have its flow requirements met (see work by Dr Erin O’Donnell for further discussion). This adds another complexity to the issue, but having the conversations about legal personhood for rivers, at the very least, may start to change the way we view our waterways.  

This complicated issue demonstrates the need for further reform of environmental policy, not only in Australia at a state and national level, but also globally. Indigenous populations around the world are disempowered by legal frameworks which restrict their ability to exercise their custodianship of their land and water. It is likely that without grassroots and participatory implementation of rights of nature, in an Australian context, the Rights of Nature framework would not be effective in supporting Indigenous ownership of nature.  

So where to now?

Efforts to improve Indigenous Peoples’ involvement and decision-making on environmental matters are improving in pockets of Australia, but with very slow progress. However, the Martuwarra (Fitzroy) River in Western Australia is making headways on this issue. The 2020 Conservation and Management Plan for the National Heritage Listed Fitzroy River Catchment Estate acknowledges the Martuwarra River as a contributor to the paper – a sacred ancestral serpent being that guided the human authors. The Management Plan actively involved local Indigenous leaders from the Martuwarra Fitzroy River Council. It uses ‘First Law’, the “system of governance and law that Indigenous Australians have developed over tens of thousands of years”, as the framework for the river’s management and care. The Plan also involved six independent Indigenous nations, creating a guideline for joint management, rights and responsibilities for the nations.

The Conservation and Management Plan for the Fitzroy River Catchment recognises that all water use should be allocated to Traditional Owners or be used for environmental purposes. Any other use or extraction must be underpinned by these values.

In contrast, many are watching with trepidation towards the Northern Territory where the conversation about water allocation appears to be happening with very few lessons learned from other parts of Australia, including the Murray Darling Basin.  

Conclusion

The ecological health of our rivers, wetlands and creeks is a pressing issue, but so is action on reconciliation so that Indigenous Peoples are part of water management decision-making processes. We have discussed a variety of approaches, ranging from Cultural Flows and Indigenous involvement in environmental water decision making, to giving the environment a legal status for protection. The involvement of Indigenous Nations in decision-making is necessary within Australia’s legal and social system of water ownership that has excluded them for so long. We recognise this article captures only a small cross-section of broad topics, but there are some key themes to continue to build upon:

• Water managers need to ensure Indigenous Peoples are involved in water-use decisions, including senior appointments within agencies.
• Governments need to explore all avenues to provide water rights to Indigenous Nations. Victoria is demonstrating ways this can be done, but this needs to be across all States and Territories.
• We need to continue the conversation about recognising our rivers as legal entities, or at the least, start to acknowledge them as part of our living world, susceptible to decline when overused and exploited.

The Australian River Restoration Centre continues to advocate for the health of our rivers and the need for genuine partnerships with Indigenous Peoples to achieve this. We work with Indigenous Peoples in projects, have a strong commitment to Truth-telling and story-sharing, focus on listening to and elevating Indigenous voices – we continue to add our voice to the call for Cultural water rights.