Chapter 6First Nations

Introduction

6.1First Nations peoples have a strong spiritual connection to water and a moral obligation to care for it. Access to water also underpins First Nations peoples’ social, environmental, and economic connection to Country. There are over 50different First Nations in the Murray-Darling Basin,[1] comprising between fiveand ten per cent of the total population in the Basin region.[2] By contrast, First Nations own just 0.2 per cent of available surface water across the entire Basin.

6.2A core objective of the Water Act and the Basin Plan is to enshrine and give prominence to First Nations’ rights and interests. While the bill does not seek to amend First Nations’ water rights, the bill proposes significant amendments which, if passed, will have ongoing implications for First Nations peoples and organisations across the Basin.

6.3The committee heard compelling evidence in the inquiry on the Basin’s significance to First Nations peoples, highlighting the longstanding issues raised by First Nations Basin communities and their advocates.

6.4This chapter is not intended to be exhaustive. It explores some of the key issues raised by inquiry participants on First Nations issues. These include:

embedding First Nations’ water rights in Basin legislation;

increasing First Nations’ water entitlements and participation in the water market; and

ensuring meaningful and genuine First Nations’ engagement in Basin management processes.

The Productivity Commission’s Interim Report

6.5As outlined in earlier chapters, the Productivity Commission’s (theCommission) interim report on its Murray-Darling Basin Plan: Implementation review 2023,recommended a range of measures, including reforms to strengthen the roles of Aboriginal and Torres Strait Islander people in the Basin Plan.

6.6Notably the Commission found:

Recognising First Nations values and delivering on First Nations interests requires Basin governments to improve how they partner and share decision-making with Aboriginal and Torres Strait Islander people. Basin governments should publicly report on how water resource plans deliver on First Nations objectives and outcomes, and strengthen the capacity of Aboriginal and Torres Strait Islander people to engage in Basin Plan activities.[3]

6.7The Commission’s recommendations with respect to First Nations and the Basin Plan are set out in Box 6.1 below.[4]

6.8Where relevant to views raised in the inquiry, the Commission’s interim recommendations and findings are briefly discussed in this chapter.

Recognition of First Nations’ water rights

6.9First Nations’ rights to water on traditional lands have been recognised in international agreements to which Australia is a signatory, including the United Nations Declaration on the Rights of Indigenous People (UNDRIP)[5] and the Convention on Biological Diversity.[6]

6.10Despite this, many submitters highlighted that these rights have not been adequately recognised or respected in Basin management processes and legislation.[7]

6.11The peak body representing First Nations in the southern Basin, the MurrayLower Darling Rivers Indigenous Nations (MLDRIN), submitted that the Water Act and the Basin Plan provides ‘only cursory and inadequate consideration of First Nations water rights’ which ‘have largely failed to give effect to First Nations water rights or provide meaningful access to water’.[8]

6.12MLDRIN noted that the South Australian Murray-Darling Basin Royal Commission Report highlighted the lack of express reference to Australia’s international obligations regarding First Nations in the Water Act and the Basin Plan:

The absence in the Water Act and Basin Plan of any clear or express reference to the relevance of international obligations in the Biodiversity Convention to the role of Aboriginal people in the Basin’s biodiversity is striking. The evidence received by the Commissioner indicates a failure to give real effect to these relevant international obligations.[9]

6.13Similarly, Lifeblood Alliance highlighted the bill’s failure to include ‘any legal provision of securing cultural flows to Basin First Nations’, recommending the embedding of legal requirements and legislative mechanisms to ‘secure real water entitlements for Indigenous Nations across the Basin…along with provision of significant recurring funding to support management and on‑ground delivery of cultural flows.’[10]

6.14Other submitters echoed this concern, arguing that the language used in the Water Act and the Basin Plan is ‘weak’ and does not improve recognition of First Nations’ water rights.[11] For example, the Wentworth Group of Concerned Scientists contended that the requirements in the Water Act and Basin Plan to consult with, or have regard to, First Nations’ values, uses, objectives and outcomes, have unfortunately ‘failed to give rise to any meaningful change with respect to Indigenous rights and interests’.[12]

6.15The language ‘have regard to’ was also raised by the NSWAboriginalLandCouncil (NSWALC), which argued that it ‘presents no meaningful recognition of our rights and interests in our waters and in turn no assurance for any tangible outcomes’.[13]

6.16Likewise, the Murray-Darling Conservation Alliance (MDCA) submission noted that the language used ‘does not require further outcomes or actions, nor does it require supporting documents, as required for other water planning, demonstrating that requirements were met’.[14]

6.17Environmental Justice Australia (EJA) pointed to the Royal Commission’s findings which warned that ‘there is a danger in the legislation simply requiring that governments ‘have regard’ to Indigenous views...without providing any procedural requirements or safeguards, or creating any obligation to give any weight to the views expressed’ and that this ‘danger had been realised in the insufficient allocation of time and resources to facilitate procedurally fair consultation with Traditional Owners’.[15]

6.18Some submitters expressed concern at the lack of consequence for governments failing to advance the interests and rights of First Nations. For example, the Biodiversity Council submitted that:

... there is no accountability of governments that continue to fail to meet the requirements of the Act and Basin Plan, including the accreditation by the Minister for the Environment of Water Resource Plans that do not contain basic cultural values and uses of Indigenous people as required by Chapter10 Part 14 of the Basin Plan.[16]

6.19Indeed, the Wentworth Group recommended that Water Resource Plans should be reviewed to ensure that Basin First Nations values and uses have been incorporated.[17] Similar recommendations were put forward by MLDRIN[18] and the Murray-Darling Conservation Alliance.[19]

6.20MLDRIN noted that the bill is a long-overdue opportunity to address FirstNations concerns,[20] arguing that the bill’s omission of First Nations was ‘unjust’ and ‘impractical’.[21] It further noted that the bill’s proposal to delay the scheduled statutory review of the Water Actuntil 2027 would ‘mean substantive reform could be deferred beyond this term of government, increasing uncertainty and putting the progress of First Nations water justice at risk.’[22]

6.21MLDRIN suggested that the bill be amended to recognise First Nations’ ‘procedural and substantive rights relating to Basin water resources’.[23] MLDRIN also recommended that the 2026 Basin Plan Review specifically consider First Nations rights and interests, including consideration of current First Nations water ownership across the Basin, achievement of cultural flows and related targets.[24]

6.22Several submitters also called for the codification of First Nations’ rights in legislation, to ensure they are ‘enforceable and respected by all stakeholders’,[25] while others called for the bill to be amended to give effect to the UNDRIP.[26]

6.23The South Australian Government submitted that the bill ‘is a missed opportunity to introduce statutory amendments that would improve engagement and consultation with First Nations Australians’, noting that ‘[b]asin jurisdictions are progressing their own policies, consistent or in concert with the water-related commitments under the National Agreement for Closing the Gap’.[27]

6.24Evidence received from Kate Harriden, a Research Fellow on Indigenous water at Monash University, raised concerns that the bill breaches human rights compliance obligations due to Australia’s support for the UNDRIP.[28] MsHarriden elaborated on these concerns at the public hearing:

The UNDRIP, as outlined in my submission, have some very clear clauses that allow us to become the rightful owners, which is a Western term. We are custodians. What elders always say when I'm out talking to them is, 'No-one owns country. If there's any owning going on, it is of us by country.' We're custodians and we want to maintain our custodial rights. We are rights holders, not stakeholders. We don't get consulted. We're having an actual conversation, a negotiation, because we are stakeholders. UNDRIP allows that—more than that, it forces it. It is beyond free, informed and prior consent. It makes us stakeholders. It makes us active, powerful players, as is our rightful place, because customary rights are not extinguished by settlers' laws. We still actually 'own'. We are still the custodians of these waters.[29]

6.25As noted in Chapter 1, the Explanatory Memorandum (EM) to the bill states that it is compatible with the human rights and freedoms recognised or declared in in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[30] The Parliamentary Joint Committee on Human Rights (PJCHR) provided no comment on the bill (noting that the PJCHR’s remit does not extend to UNDRIP).[31]

First Nations water entitlements

6.26Several submitters highlighted the small proportion of Basin water entitlements that are owned by First Nations, a proportion that has been declining over time.[32]

6.27MLDRIN, for example, noted that First Nations ownership has decreased since the Basin Plan was legislated, contending that historical dispossession is a trend that has continued to occur under the Basin Plan:

First Nations have been marginalised from water management and decision making, and dispossessed from water access and ownership. First Nations own just 0.2% of available surface water in the Basin and in some regions water ownership has decreased since the Basin Plan was legislated.[33]

6.28The NSW Aboriginal Land Council also highlighted First Nations’ ‘miniscule’ ownership of water:

Our ownership of water is miniscule and has been going backwards. For example, while Aboriginal people in the Murray Darling Basin constitute nearly 10% of the total population, Aboriginal organisations hold only 0.2% of the available surface water in the Basin and 0.1% across [NSW]. Aboriginal water holdings between 2009 and 2018 indicate a new wave of dispossession. Almost one-fifth of Aboriginal water holdings by volume were lost during this time.[34]

6.29This has significant flow-on effects to communities including economic impacts. The Wentworth Group of Concerned Scientists identified that the current level of First Nations ownership serves not only to undermine Basin First Nations ability to care for Country ‘but to derive economic benefit from water‑dependent businesses and activities’.[35]

6.30Several organisations, including MLDRIN and various environmental groups, called for increasing First Nations water entitlements as a matter of priority.[36]

6.31The MDBA, First Nations and Basin governments are collaborating to explore ways to integrate cultural flows into water management in the Basin. A national framework for cultural flows was released in 2018, as part of the National Cultural Flows Research Project.[37]

6.32As outlined in the 2007 Echuca Declaration, cultural flows are ‘water entitlements that are legally and beneficially owned by the Indigenous Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations. This is our inherent right.’[38]

Delays in the Aboriginal Water Entitlements Program funding

6.33In May 2018, the Australian Government announced $40 million in funding to assist First Nations Basin communities to invest in water for cultural and economic water entitlements and associated planning activities, through the Aboriginal Water Entitlements Program (AWEP).

6.34The $40 million is the available Commonwealth funding envelope to support the acquisition of water entitlements by First Nations Basin communities.[39] This amount would be allocated to over 40 First Nations groups within the Basin[40] and is yet to be allocated.[41]

6.35Some of the challenges to the delivery of this funding have included administrative changes and diverse perspectives on how the funding should be allocated,[42] including how to address First Nations values, interests and uses.[43]

6.36Dr Phil Duncan, a member of the MDBA’s advisory body, the Basin Community Committee, who appeared before the committee in a private capacity, acknowledged there are divergent views within First Nations communities:

It has got to be a safe environment to bring the key stakeholders together. I don't apologise for saying that there is too much conflict within the Indigenous debate amongst ourselves, and yet we share the same vision and aspirations. But we need to come together and codesign what this mechanism may look like... There is so much dialogue and so much more deep diving into the future direction that we take to get the outcomes for Indigenous people of this country and of the basin. But we need to do it together and we need to be more respectful of one another's opinions and views and what we bring to the table because the many options give us a greater thinking opportunity about what direction we need to take together.[44]

6.37The inquiry heard evidence about the inadequacy of this funding and frustration in delays. The NSWALC pointed out that this figure was ‘nowhere near sufficient for all Aboriginal nations in the Basin with water interests to meaningfully engage in the water market’.[45] The NSWALC considered it an ‘outrage’ that the Commonwealth would extend more money for potentially ‘wasteful’ and ‘questionable’ sustainable diversion limit adjustment mechanism (SDLAM) projects, while the $40 million remains uncommitted and underfunded.[46]

6.38Similarly, the Wentworth Group of Concerned Scientists argued that the $40million funding ‘is a small sum considering the price of water and investment in implementing the Water Act to date’,[47] while the submission from Mr McHughes, a Ngemba man and Chair of Northern Basin Aboriginal Nations (NBAN), argued that ‘it is insulting to see billions go towards buybacks in this bill’ when the $40 million figure is inadequate.[48]

6.39Various submitters highlighted that the original allocation of $40million for the AWEP has significantly decreased in value. The NSWALC expressed disappointment in both the delay in implementing this program, and the current market value of water holdings, noting that ‘the purchasing power of the initially committed $40m has greatly reduced since 2018.’[49]

6.40MLDRIN advised that buying the same volume of water that could have been purchased in 2018 would cost almost $11million more in 2023.[50] MLDRIN further noted that its analysis found:

To add to that, the analysis that we were able to have done to estimate the lost value or the foregone value of that funding since it was committed in 2018 shows that for the southern basin alone—the half of the [$40 million] funding that was committed to the southern basin—it would cost now, in 2023, an additional $11 million to acquire the same volume of water that could have been acquired in 2018. That's just for the southern basin. The figures for the whole basin would be significantly larger.[51]

Calls for additional funding for First Nations water interests

6.41In light of the reduced value of the AWEP, MLDRIN recommended that the program be supplemented ‘to make up for the lost purchasing power of the $40 million caused by unnecessary delays, significantly increased water entitlement prices and foregone trade revenue.’[52] This was echoed by the Australian Conservation Foundation (ACF), which urged delivery of the $40 million, adjusted for inflation and including interest payments.[53]

6.42The NSWALC and MLDRIN recommended that the Australian Government should immediately commit significantly more funding and resources to support First Nations engagement in the Australian water market.[54]

6.43The NSWALC also expressed concerns that the recommencement of buybacks as envisaged by the bill would impact water markets and pricing, thereby pushing First Nations water holders out of the market before the AWEP even commenced.[55]

6.44MLDRIN explained that ‘Member Nations…want to be able to hold and deliver water to sustain and enhance their Country, informed by Nation-led planning and cultural science’.[56] To this end, MLDRIN also called for a ‘minimum volume of water, to be secured through the WESA [Water for the Environment Special Account]...[to] be transferred to Basin First Nations ownership, in a way determined by Basin First Nations’.[57] Dharriwaa Elders Group, an association of Aboriginal Elders from Walgett, put forward a similar suggestion.[58]

6.45In response to questions on notice, DCCEEW advised that it had hosted a series of gatherings with First Nations representatives in the Basin in July and August 2023. These outcomes have been published in its ‘What We Heard Report’.[59] DCCEEW advised that its next steps will include:

November 2023 – At the request of Basin First Nations, the department will convene a Basin-wide First Nations Gathering. This will include the presentation of options for water entitlement portfolios and interim governance arrangements to Basin First Nation representatives;

December 2023 – Finalise preferred purchasing portfolio and interim governance arrangements to manage the water entitlements once purchased ahead of the permanent governance model being developed and established. Three purchasing portfolio options have been identified based on feedback from First Nations: wealth / economic creation; geographic equity based; and usability based;

First quarter 2024 – Commence the purchase phase of the AWEP, set up interim governance. Purchase will be based on the portfolio identified at the November 2023 gathering and the interim governance arrangement will be dependent upon the portfolio selected; and

First and second quarter 2024 – Commence consultation with First Nations on permanent AWEP holding governance arrangements. The permanent holding governance arrangement will be based on a trust, fund or holding arrangement. These were the three models identified as part of the consultation undertaken to date.[60]

Models to deliver First Nations water entitlements

6.46While the bill does not canvass First Nations water entitlements, various perspectives were raised during the inquiry on institutional arrangements that could support the purchase of cultural water including a First Nations water holder. This could involve:

establishing an organisation or legal entity with responsibilities for holding and/or managing water for cultural flows similar to the Commonwealth Environmental Water Holder;[61]

developing mechanisms to provide advice to a First Nations water holder in the planning and delivery of cultural water.

6.47For example, Mr Frederick Hooper, Chairperson of the Murrawarri Peoples Council of the Murrawarri Nation, outlined:

Along with that should come the mechanism to support that purchase of cultural water, which we call cultural economic water, within a system that has the professionals to advise the First Nations water holder, similar to the Commonwealth environmental water holder.[62]

…[t]here should be a provision in this amendment for the establishment of a First Nations cultural water holder in the Murray-Darling Basin with similar powers to [the Commonwealth Environmental Water Holder to] buy water. Similar amendments to that would be to gift water to First Nations once the First Nations have the ability to manage and own that water licence.[63]

6.48Associate Professor Bradley Moggridge, a member of the Wentworth Group of Concerned Scientists, highlighted some of the challenges to secure effective FirstNations water entitlements, noting:

It is a challenging space, Indigenous engagement, because those 40-odd nations that connect to the Murray-Darling are all independent and have their own ways of doing business, connection, laws, governance, roles, status and things like that—so there’s that challenge to start with. One of the potential aspects is the Indigenous water holder, as a start, and then the states would have to consider how they would create opportunities for that.[64]

6.49As outlined above, DCCEEW is currently consulting on ways to best hold FirstNations water entitlements to benefit communities.[65]

First Nations engagement and consultation

6.50First Nations Basin communities have long advocated for culturally appropriate and improved consultation processes to facilitate meaningful First Nations engagement on Basin-related matters. This inquiry heard similar concerns.[66]

6.51As outlined in the Productivity Commission’s interim report, there is evidence of increasing involvement of First Nations people in water management in the Basin. The Commission received evidence of improvements in how Basin state governments have worked, engaged and partnered with First Nations people, particularly in environmental watering activities and water resource plan development.[67]

6.52Despite these improvements, concerns were raised in this inquiry about rushed or inadequate consultation and the lack of capacity and cultural competency in engagement processes.

6.53For example, MLDRIN outlined recent examples of ongoing disregard for First Nations input, arguing that the bill’s ‘proposal to allow additional supply measures to be notified has been developed without any consultation with Basin First Nations who contend with the direct impacts of floodplain infrastructure projects’. MLDRIN further explained that First Nations people and organisations oppose measures that ‘entail significant alterations to the cultural character of floodplain areas and risk directly damaging cultural heritage features’, and that the consent of affected First Nation Basin peoples must be obtained in advance of proposing new supply measures.[68]

6.54Likewise, NSWALC advised that there has been no direct consultation with FirstNations groups on the bill and proposed changes and that the limited period for written submissions to this committee’s inquiry was itself a barrier for many Aboriginal stakeholders.[69]

6.55Ms Harriden highlighted the lack of capacity in non-Indigenous communities in consultation processes, notably:

We spend a lot of time as a nation-state talking about needing to improve Indigenous people's capacity. But the reason those roadshows fell apart wasn't because of mob; it was because of the inability of those non-Indigenous peoples to work out how to run a roadshow and how to deliver a roadshow. That showed a lack of capacity on the part of the non-Indigenous. That's a fundamental problem, and until that’s sorted there’s going to be a lot of this going around and around in circles.[70]

6.56The NSWALC argued that First Nations representatives ‘should be included at every stage of implementation, monitoring and review of the Act and the Plan’.[71]

6.57Similar views were expressed by Ms Harriden, drawing attention to Australia’s international obligations, which require consent to be obtained from FirstNations ‘before adopting and implementing legislative or administrative measures that may affect them.[72]

6.58The ACF called for further consultation with First Nations groups on any proposed legislative amendments, in addition to further consultation on proposed actions more generally.[73] Similarly, the Greater Shepparton City Council suggested face-to-face consultations with affected communities concerning the proposed amendments, with an emphasis on seeking genuine engagement with First Nations peoples.[74]

6.59Specifically, the NSWALC advised that consultation and engagement with FirstNations peoples must provide adequate notice, incorporate the principles of ‘free, prior and informed consent’, and actively seek First Nations’ views on more than a ‘one-off’ basis.[75]

6.60Ms Harriden argued there is a lack of capacity in non-Indigenous consultation processes to understand and respect the preferred engagement approach of FirstNations:

...this goes back to non-Indigenous people's lack of capacity... That [haste to report on the bill] in itself is so Western and doesn't work for mob. In Wiradjuri, we have a word—and I know lots of Indigenous languages have a similar word—which is 'yindyamarra'… Yindyamarra is a Wiradjuri word that means 'to go slow'. This is not slow [the proposed timeframe for the passage of the bill]. It's about respect and honour and being polite. Yindyamarra—I've just given you a nice dictionary definition—is actually our ethos. It's how I as a Wiradjuri person am supposed to engage. You're sitting here and telling me that this needs to be sorted in four weeks. That is wiray yindyamarra. There's no yindyamarra there. There's no going slow. There's no respect in the process of having to engage with mob as stakeholders... The engagement process...needs to be more respectful and honourable than your standard public engagement process... Mob have always shown up, and we have been saying the same thing. Again, it's this non-indigenous capacity—the lack of capacity. We've constantly shown up, with our hearts and souls open and ready, and then you deal with different people over and over again, who say kind of the same things but kind of not, and none of them deliver... mob don't think engaging with government is actually worthwhile... stop; go slow. Yindyamarra. Be respectful. Be honourable. Go slow. Be polite.[76]

6.61The Environmental Defenders Office (EDO) pointed out that meaningful participation of First Nations peoples in consultation processes requires adequate resourcing:

Water law is extremely complex. Deep, early and iterative participation by Basin Nations in regulatory decision making that affects their Country requires resourcing that will facilitate and scaffold such participation. This must account for and address the many actual and potential barriers to participation.[77]

6.62MLDRIN drew attention to the importance of securing First Nations input into cultural flows projects, which requires highly skilled staff, sufficient time, and long-term investment.[78] MLDRIN pointed to funding allocated to MLDRIN and NBAN in 2018 ($1.5 million respectively), noting that the ‘level of resourcing required to deliver Cultural Flows for 40 Nations is 10-fold the 2018 investment and will minimally require 5 years of funding should this work be delivered by MLDRIN or another Basin Nation representative body’.[79]

6.63In response to the committee’s request for more information, DCCEEW advised that the department held a five-week public consultation from 29 May to 3 July 2023 seeking ideas to deliver the Basin Plan in full, which included targeted online workshops with key stakeholders including First Nations groups. The department also briefed the Committee on Aboriginal and Torres Strait Islander Water Interests (CAWI) on the changes proposed in the bill before it was introduced. DCCEEW noted that, subject to passage of the bill, further public consultation would occur in 2024.[80]

6.64Separately, DCCEEW noted that the Basin Plan sets out requirements for consultation with First Nations but does not prescribe what consultation processes must be used, and that, in most cases, the responsibility to undertake consultation lies with the Basin states. DCCEEW explained that the MDBA had identified First Nations as one of four key themes for the 2026 Basin Plan Review and would investigate opportunities to recognise and support the outcomes desired by First Nations people.[81]

Proposals to establish a new body for First Nations people in the Basin

6.65As part of its interim report, the Productivity Commission (Commission) recommended that the MDBA—in partnership with Aboriginal and Torres Strait Islander people—should consider the merits of establishing a new body for First Nations people in the Basin.[82]

6.66The Commission found that there may be value in establishing a new body ‘for individuals and groups to communicate concerns, advocate for change, and respond to the ideas and proposals of others’. To help establish the body, the Commission suggested that the expertise and knowledges of First Nations people throughout the Basin, including existing bodies such as the Committee on Aboriginal and Torres Strait Islander Water Interests and the Basin Community Committee, could be used.[83]

6.67While this inquiry heard of the broad consensus for more meaningful and genuine engagement with First Nations on Basin Plan processes, diverse views were expressed about how this could be achieved.

6.68For example, Mr Frederick Hooper, as Chairperson of the Murrawarri Peoples Council outlined initial concerns about the Commission’s proposal noting:

The Murrawarri Nation do not believe that such a body would be effective, given there are over 40 separate Sovereign First Nations within the Murray Darling Basin with their own Laws, Customs and Authorities.

The reason for our position is no other Nation or person can speak on our behalf… Speaking on behalf of the Murrawarri Nation, we would very much like to work directly with the Commonwealth and State Governments to achieve our Aspirations and Objectives in the water space…

We believe that this approach would be more effective and genuine because of the many different Laws and Customs of the many First Nations of the Murray darling Basin…

Therefore, the Murrawarri Nation would not support such a recommendation, but to encourage direct First Nations collaborative decision-making processes with individual Nations or where First Nations come together to form their own regional alliances, we encourage the Murray darling Basin Authority to work with those alliances.[84]

6.69MDLRIN emphasised the challenges in establishing a single entity to represent the diverse interests and needs of First Nations:

Fundamentally, it is not for any government agency to determine the appropriate representative institutions for First Nations to deliberate and advocate for their interests in decision making…

Further to the above, each Nation within the Basin fundamentally has the right to act, speak and represent itself as an independent, sovereign entity. If Nations choose to join collectively with their neighbo[u]rs to represent themselves through collective structure, that is also their right…

It is only through deep listening to Basin Nations, and partnerships in which government(s) agree to genuine power sharing arrangements with Nations (including resources), that more effective Basin Nation participation in Basin Plan decision making will be achieved.

As noted above, there are more than 40 First Nations across the Basin. A government led initiative to establish a single entity to represent the diverse interests and needs of those Nations would come with significant challenges. It is highly likely that some Nations would elect not to engage with a government led and established body.[85]

6.70Ms Kate Harriden also highlighted the need to not rush the process and that decisions about a body’s structure would need to be agreed to by all the Indigenous nations involved:

Importantly, any decision about the body’s structure would need to be agreed to by all the Indigenous nations involved. If the government unilaterally decided the body’s structure, following consultations or negotiations, it would be very unlikely to garner widespread support from the relevant First Nations. Similarly, support would be low if the government was seen to be favouring some First Nations over others.

To establish a basin wide body, it is critical to not rush the process or dictate terms or boundaries of the engagement (not consultation) process. Indigenous peoples need to set the pace and agenda. Anything less is likely to be unsuccessful.[86]

Additional proposed amendments to the bill

6.71The inquiry received various additional proposals to enhance the protection of First Nations rights and interests in the Basin. These proposals canvassed various changes to the Water for the Environment Special Account (WESA), redirecting funds from poor performing water efficiency and supply projects, and ensuring that community assistance packages prioritise First Nations’ interests.

6.72In relation to proposed changes to the WESA, MLDRIN advocated for further flexibility in these provisions to ensure that the funding produces First Nations outcomes in water access and management. For example, this could occur by stipulating that ‘any combined land and water purchase facilitated through WESA must be held and managed by Basin First Nations’,[87] and that a defined percentage or allocation of funding from the WESA be allocated to support FirstNations-related activities.[88]

6.73Similarly, EJA recommended specific amendments to the WESA to permit funding to be used to deliver cultural flows and for any surplus to be ‘applied for the benefit of Indigenous Australians’ rather than returned to Commonwealth’s Consolidated Revenue Fund.[89]

6.74Similar amendments were recommended by MLDRIN,[90] the NSWALC,[91] the Wentworth Group,[92] the MDCA,[93] and the National Parks Association NSW, which echoed calls for the WESA to be used to enhance opportunities for First Nations involvement in caring for Country.[94]

6.75Additionally, the NSWALC called for Basin governments to ‘abandon any questionable water efficiency and supply projects and redirect funds to purchase water for Aboriginal nations and funding should not be extended to new projects’.[95]

6.76In relation to community assistance packages, MLDRIN submitted that FirstNations ‘have borne the greatest impacts from unsustainable management of the Basin’s rivers and have benefited least from the exploitation of water resources’.[96] As such, any investment to mitigate the impacts of water recovery should first consider First Nations Basin communities ‘who have been impacted by dispossession, poor water management and exploitation of water resources’.[97]

6.77A number of First Nations submitters emphasised the need to include FirstNations’ desired reforms in the bill. For example, ProfessorBradMoggridge of the Wentworth Group of Concerned Scientists pointed out that the next opportunity for reform would be in 2026 and 2027:

It's going to be a missed opportunity again, I think, if we don't have real impacts in this bill for Indigenous people, because obviously we're missed out. Then, when you look at perspective, the Productivity Commission just released its implementation interim report, and we look at a Basin Plan review in 2026 and then we're looking at a Water Act review in 2027—now pushed back. So we're going to miss this opportunity. If it doesn't happen now then potentially our voice again will be silenced.[98]

Committee view and recommendations

Recognition of First Nations’ water interests

6.78The evidence received in this inquiry highlighted that there is overwhelming support across governments, legal experts, environmental groups, and industry including irrigators, that significantly more needs to be done to incorporate the values and interests of First Nations people in Basin Plan management.

6.79Concerns were expressed by submitters about the inadequacy of the existing legal framework to address the water rights of First Nations people in the Basin, including recognition of cultural flows.Various proposals were put forward on how this could be achieved. These included recognising the principles in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Water Act 2007.The committee notes that while becoming a signatory to the declaration in 2009, Australia has not taken steps to ratify UNDRIP into domestic law.

6.80The committee supports the recognition of First Nation water rights and interests in national water laws and recommends accordingly.

6.81The committee recommends that the Australian Government consider amending the Water Act 2007 and the Basin Plan 2012 to expressly provide for First Nations’ values and interests in the basin, having regard to the proposals received in this inquiry and the principles of UNDRIP.

Funding for First Nations’ water entitlements

6.82The inquiry heard strong concerns about the delays in allocating the Australian Government’s $40 million funding to increase First Nations’ water entitlements, and the significant reduction in value since this funding was announced in 2018. The committee heard there are also divergent views amongst First Nations regarding a preferred strategy and approach going forward. While noting DCCEEW’s advice that it is conducting further consultation through to mid‑2024 to determine purchasing options, the committee supports the Water Minister considering additional funding to progress First Nations’ communities’ investment in cultural and economic water entitlements as a priority.

6.83The committee recommends that the Minister for the Environment and Water consider additional funding for the Aboriginal Water Entitlements Program to improve First Nations’ investment in cultural and economic water entitlements.

The review of the Basin Plan to take into account First Nations’ interests and values

6.84Submitters also raised the need for the 2026 Basin Plan Review to consider the interests and values of First Nations people. This could occur by requiring the MDBA to take into account key matters relevant to Indigenous people as part of its review of the Basin Plan.

6.85The committee recommends the Water Act 2007 be amended to require the Murray-Darling Basin Authority, in its review of the Basin Plan, to ensure that the management of basin water resources takes into account spiritual, environmental, social, cultural and economic matters relevant to Indigenous people.

Representation of First Nations in Basin Plan management

6.86The committee heard from various First Nations submitters about the need for meaningful and genuine engagement and consultation. Concerns were raised about rushed consultation processes, and the lack of capacity and cultural competency in non-Indigenous engagement to date. The committee acknowledges that there are diverse perspectives on First Nations representation and engagement in the Basin, including proposals to establish a First Nations water holder, or a new body to represent First Nations people in the Basin.

6.87The committee recognises that these issues will be considered in the context of the Australian Government’s consultation on governance models for the Aboriginal Water Entitlements Program, and its response to the Productivity Commission’s final report on its implementation review of the Murray-Darling Basin Plan.

6.88The committee welcomes the interim findings and recommendations of the Productivity Commission’s review of the Murray-Darling Basin Plan. The committee fully supports measures to improve accountability in the delivery of First Nations outcomes, and looks forward to the Government’s response.

6.89In addition, the committee considers there is an opportunity to consider further options to improve First Nations representation in Basin Plan management.

6.90The committee recommends that the Australian Government consider, as a matter of priority, measures to hardwire First Nations representation in Basin Plan management and decision-making.

6.91The committee recommends the Water Act 2007 be amended to strengthen the language regarding the role of First Nations spiritual, cultural and economic perspectives in the management of the basin water resources.

6.92Given the critical timeframes being addressed by various parts of the bill under inquiry, the committee considers that the bill should not be delayed to fully address Recommendations 12 and 13 as significant consultation is required. However, the committee emphasises the importance of progressing these recommendations in a timely manner to address the concerns raised in this inquiry. These recommendations should be prioritised ahead of other scheduled reviews such as the Basin Plan review in 2026.

Footnotes

[1]Murray-Darling Basin Authority (MDBA), The Basin, (accessed 25 September 2023); MrMatthewDadswell, Division Head, Water Reform Taskforce, Senate Environment and Communications Legislation Committee, 2023-24 Budget Estimates hearings, Proof Committee Hansard, 26May 2023, p. 25.

[2]NSW Aboriginal Land Council (NSWALC), Submission 64, p. 7. Although the submission from the Murray-Darling Conservation Alliance suggests this figure is 5.3 per cent (Submission 67, p. 19, citing Hartwig, L.D., & Jackson, S. (2020). The status of Aboriginal water holdings in the Murray-Darling Basin. ARI Report No. 2020/004. Australian Rivers Institute, Griffith University, Australia, p. v).

[3]Productivity Commission, Murray-Darling Basin Plan: Implementation review 2023: Interim report, p.2.

[4]Productivity Commission, Murray-Darling Basin Plan: Implementation review 2023: Interim report, p.32.

[5]United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (adopted 13 September 2007) (UNDRIP). In particular, Article 25 includes the provision that: ‘Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.’ Article 26 includes the provision that: ‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.’ Article 32 includes the provision that: ‘Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources’ and further, that ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.’

[6]Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force on 29 December 1993). In particular, the preamble stipulates that Contracting Parties shall ‘Recogniz[e] the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations, and practices relevant to the conservation of biological diversity and the sustainable use of its components’. Article 8 stipulates: ‘Each Contracting Party shall...[s]ubject to...national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’. Article 17 stipulates that: ‘Contracting Parties shall facilitate the exchange of information, from all publicly available sources, relevant to the conservation and sustainable use of biological diversity, taking into account the special needs of developing countries [including] indigenous and traditional knowledge...’. Article 18 stipulates that: ‘Contracting Parties shall...encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention’.

[7]See for example: Murray Lower Darling Rivers Indigenous Nations (MLDRIN), Submission 54, p. 2; The Wentworth Group of Concerned Scientists, Submission 57, pp. 27; NSWALC, Submission 64, p.8; Murray-Darling Conservation Alliance (MDCA), Submission 67, p. 16; Blak Sovereign Movement, Submission 111, pp. 1 & 3.

[8]Murray Lower Darling Rivers Indigenous Nations (MLDRIN), Submission 54, p. 2.

[9]MLDRIN, Submission 54, p. 2, citing Murray-Darling Basin Royal Commission (Final Report, January2019), p. 500.

[10]Lifeblood Alliance, Submission 90, p 3.

[11]The Wentworth Group of Concerned Scientists, Submission 57, pp. 27; NSWALC, Submission 64, p.8; MDCA, Submission 67, p. 16.

[12]The Wentworth Group of Concerned Scientists, Submission 57, pp. 25-26.

[13]NSWALC, Submission 64, p. 8.

[14]MDCA, Submission 67, p. 16.

[15]Environmental Justice Australia (EJA), Submission 25, p. 3.

[16]Biodiversity Council, Submission 56, p. 6.

[17]The Wentworth Group of Concerned Scientists, Submission 57, p. 27.

[18]MLDRIN, Submission 54, p. 9.

[19]MDCA, Submission 67, p. 7.

[20]MLDRIN, Submission 54, p. 3.

[21]MLDRIN, Submission 54, p. 6.

[22]MLDRIN, Submission 54, p. 3.

[23]MLDRIN, Submission 54, p. 4.

[24]MLDRIN, Submission 54, p. 8.

[25]See for example: NSWALC, Submission 64, p. 9; MLDRIN, Submission 54, p. 4; EJA, Submission 25, p.4.

[26]See for example: The Wentworth Group of Concerned Scientists, Submission 57, p. 25; KateHarriden, Submission 49, p. 1; MLDRIN, Submission 54, p. 7; NSWALC, Submission 64, p. 2; MDCA, Submission 67, p. 7; Blak Sovereign Movement, Submission 111, p. 3.

[27]South Australian Government, Submission 70, p. 5.

[28]Kate Harriden, Submission 49, p. 1.

[29]Kate Harriden, Proof Committee Hansard, 1 November 2023, p. 14.

[30]Water Amendment (Restoring Our Rivers) Bill 2023, EM, p. 8.

[31]Parliamentary Joint Committee on Human Rights, Report 11 of 2023; [2023] AUPJCHR 103, p. 5.

[32]See for example: MLDRIN, Submission 54, p. 2; The Wentworth Group of Concerned Scientists, Submission 57, p. 27; Blak Sovereignty, Submission 111, pp. 1 & 2.

[33]MLDRIN, Submission 54, p. 2. Citations removed.

[34]NSWALC, Submission 64, p. 7.

[35]The Wentworth Group of Concerned Scientists, Submission 57, p. 27.

[36]See for example: MLDRIN, Submission 54, p. 10; Australian Conservation Foundation (ACF), Submission 22, p. 3; MDCA, Submission 67, p. 3; Blak Sovereign Movement, Submission 111, pp. 2 &3.

[37]MDBA, First Nations Cultural Flows, (accessed 5 November 2023).

[38]MLDRIN, Echuca Declaration 2007, p. 2. (accessed 5 November 2023).

[39]MLDRIN, Submission 54, p. 9.

[40]See for example: The Senate Select Committee Report, Multi-Jurisdictional Management and Execution of the Murray Darling Basin Plan, September 2021, [7.59]-[7.64]; Senator David Pocock, Senate Environment and Communications Legislation Committee, 2023-24 Budget Estimates hearings, ProofCommittee Hansard, 26 May 2023, p. 25.

[41]Dr Simon Banks, Commonwealth Environmental Water Holder, Senate Environment and Communications Legislation Committee, 2023-24 Budget Estimates hearings, Proof Committee Hansard, 26 May 2023, p. 37.

[42]DCCEEW, What We Heard – Consultation Draft: Aboriginal Water Entitlements Program, 2023, p. 5.

[43]Mr Feli McHughes, Chair, Northern Basic Aboriginal Nations (NBAN), Submission 41, p. 2.

[44]Mr Leslie (Phil) Duncan, Private capacity, Proof Committee Hansard, 31 October 2023, p. 24.

[45]NSWALC, Submission 64, p. 9.

[46]NSWALC, Submission 64, pp. 11 & 12.

[47]The Wentworth Group of Concerned Scientists, Submission 57, p. 26.

[48]Mr Feli McHughes, NBAN, Submission 48, p. 2.

[49]NSWALC, Submission 64, p. 9.

[50]MLDRIN, Submission 54, pp. 2-3, citing Aither, Water Portfolio Investigation (Report, February 2023), p. 9.

[51]Mr Mooney, Project Manager, MLDRIN, Proof Committee Hansard, 1 November 2023, p. 25.

[52]MLDRIN, Submission 54, p. 10.

[53]ACF, Submission 22, p. 3.

[54]NSWALC, Submission 64, p. 3; MLDRIN, Submission 54, p. 4.

[55]NSWALC, Submission 64, p. 10.

[56]MLDRIN, Submission 54, p. 5.

[57]MLDRIN, Submission 54, p. 6.

[58]Dharriwaa Elders Group, Submission 110, p. 3.

[59]DCCEEW, What We Heard – consultation draft, (accessed 3 November 2023).

[60]DCCEEW, answers to questions on notice, 10 October 2023 (received 19 October 2023).

[61]MLDRIN, NBAN & North Australian Indigenous Land and Sea Management Alliance (NAILSMA), A Pathway to Cultural Flows, p. 9 (accessed 3 November 2023).

[62]Mr Frederick Hooper, Chairperson, Murrawarri Peoples Council of the Murrawarri Nation, Proof Committee Hansard, 31 October 2023, p. 20.

[63]Mr Frederick Hooper, Chairperson, Murrawarri Peoples Council of the Murrawarri Nation, Proof Committee Hansard, 31 October 2023, p. 20.

[64]Associate Professor Bradley Moggridge, Wentworth Group of Concerned Scientists, Proof Committee Hansard, 1 November 2023, p. 57.

[65]DCCEEW, First Nations water policy, (accessed 3 November 2023).

[66]See for example: ACF, Submission 22, p. 2; MLDRIN, Submission 54, p. 5; NSWALC, Submission 64, p. 4; Greater Shepparton City Council, Submission 37, p. 7; Dharriwaa Elders Groups, Submission 110, p. 5; Blak Sovereign Movement, Submission 111, p. 3.

[67]Productivity Commission, Murray-Darling Basin Plan: Implementation review 2023: Interim report, p.151.

[68]MLDRIN, Submission 54, p. 5.

[69]NSWALC, Submission 64, p. 5.

[70]Kate Harriden, Proof Committee Hansard, 1 November 2023, p. 13.

[71]NSWALC, Submission 64, p. 3.

[72]Kate Harriden, Submission 49, p. 1, citing UNDRIP, GA Res 61/295, UN Doc A/RES/61/295 (adopted 13 September 2007), Article 19.

[73]ACF, Submission 22, p. 2.

[74]Greater Shepparton City Council, Submission 37, p. 7.

[75]NSWALC, Submission 64, p. 4.

[76]Kate Harriden, Proof Committee Hansard, 1 November 2023, pp. 14-16.

[77]Environmental Defenders Office (EDO), Submission 61, p. 6.

[78]MLDRIN, Submission 54, p. 11.

[79]MLDRIN, Submission 54, pp. 11-12.

[80]DCCEEW, answers to questions on notice, 10 October 2023 (received 23 October 2023).

[81]DCCEEW, answers to questions on notice, 10 October 2023 (received 23 October 2023).

[82]Productivity Commission, Murray-Darling Basin Plan: Implementation review 2023: Interim report, p.32.

[83]Productivity Commission, Murray-Darling Basin Plan: Implementation review 2023: Interim report, p.159.

[84]Mr Frederick Hooper, Chairperson, Murrawarri Peoples Council of the Murrawarri Nation, answers to questions on notice, 10 October 2023 (received 19 October 2023).

[85]MLDRIN, answers to questions on notice, 2 November 2023 (received 4 November 2023).

[86]Ms Kate Harriden, answers to questions on notice, 1 November 2023 (received 4 November 2023).

[87]MLDRIN, Submission 54, p. 6.

[88]MLDRIN, Submission 54, p. 6.

[89]EJA, Submission 25, p. 4.

[90]MLDRIN, Submission 54, p. 6.

[91]NSWALC, Submission 64, p. 4.

[92]The Wentworth Group of Concerned Scientists, Submission 57, p. 26.

[93]MDCA, Submission 67, p. 7.

[94]National Parks Association NSW, Submission 31, p. 2.

[95]NSWALC, Submission 64, p. 4.

[96]MLDRIN, Submission 54, p. 5.

[97]MLDRIN, Submission 54, p. 5.

[98]Professor Brad Moggridge, Wentworth Group of Concerned Scientists, Proof Committee Hansard, 31October 2023, p. 54.