Senator Lidia Thorpe's Additional Comments

1.1Amend the Water Act 2007 to ensure water purchased through the Water for the Environment Special Account (WESA) must provide for First Peoples’ water ownership, including that any combined land and water package purchase facilitated through WESA must be held, owned and managed by Basin First Nations and/or their nominated representative organisations.

1.2Amend section 86AE to include a legislated minimum commitment of water from WESA funds is transferred to Basin First Nations ownership.

1.3The Bill should be further amended to ensure explicit recognition of Basin First Nations’ water rights and interests and associated objectives, including in the Objects of the Act and aligning it with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); procedural justice and meaningful consultation for First Peoples, in line with the principles of Free, Prior and Informed Consent (FPIC); First Peoples water access and ownership; measures to ensure proper representation by First Peoples in all water resource plans and the next iteration of the Basin Plan; and mechanisms to ensure that all water resource plans and the next Basin Plan include First Peoples objectives and flows, as determined by First Peoples themselves, supported by additional water recovery. Details on these amendments are provided in Attachment A.

1.4The Minister for Environment and Water must properly resource the Aboriginal Water Entitlements Program (AWEP) to account for the lost value caused by delays; the additional $50 million promised by the ALP for cultural water in 2019; and adjustments for inflation. Factoring in these considerations would bring the total of the AWEP program funding to approximately $120million, at a minimum.

1.5The Albanese Government must make significant investment in Basin Nations’ preferred representative bodies to determine appropriate water holding arrangements for entitlements acquired through AWEP.

1.6Genuinely 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.

1.7The Albanese Government must immediately begin a process of Truth‑telling, to tell the history of this place and allow First Peoples to heal. This will allow us to learn about the ravages and destruction that our lands and waterways have occurred as a result of colonisation and exploitation of First Peoples and our natural resources.

1.8The Albanese Government must immediately begin a Treaty process with all Sovereign First Peoples, which will enable all language groups to self‑determine their own aspirations in relation to water access, use and ownership.

1.9Establish a transition fund to support communities in the Basin impacted by over‑extraction, climate change, and water recovery. This must include a dedicated component to address the detrimental impacts of poor water management on Basin First Nations, as well as communities disproportionately impacted by climate change and reduced water availability.

1.10If the WESA account is chosen as the funding mechanism for the transition fund, assurances must be made to ensure that adequate funding is available to support communities while not impacting on water recovery measures and delivery of First Peoples water outcomes.

1.11The Albanese Government must make a substantial funding commitment to ensure the full delivery of the Basin Plan, delivery of First Peoples water outcomes, and adequate support for communities impacted by over‑extraction, climate change and water recovery.

1.12The Albanese Government must ratify UNDRIP into our domestic law as a matter of urgency, and commit to establishing a process for auditing existing legislation against the principles of UNDRIP and developing a National Action Plan for implementation of UNDRIP.

1.13The Human Rights (Parliamentary Scrutiny) Act 2011 must be amended to include UNDRIP in the list of international instruments, as well as additional provisions to ensure that no Bill can pass before being considered by the committee and assessed for its compliance with the principles of UNDRIP.

1.14The Albanese Government must work in a collaborative manner with the Victorian Government to ensure its participation and cooperation in the delivery of the Basin Plan, including measures to ensure that northern Basin environmental outcomes are better protected and connectivity are expressly targeted by the WESA. This engagement must include all First Peoples whose lands and waters lie in so-called Victoria.

1.15Substantial amendments must be made to the Bill to ensure the health of the rivers and Country in the Basin and improve social, cultural and economic outcomes in the Basin.

Introduction

1.16I wish to provide additional comments on the committee report on the Water Amendment (Restoring Our Rivers) Bill 2023. We have heard extensive evidence through the Senate inquiry into the Bill about the need for substantial reform to improve the health of Country in the Basin and its communities. Due to the grave concerns highlighted, this Bill should be substantially amended to ensure the health of the rivers and Country in the Basin and improve social, cultural and economic outcomes in the Basin. Of particular concern is the ongoing, unaddressed issue of First Peoples water dispossession and violation of our Sovereign rights and interests.

First Peoples Sovereign water rights

Background

1.17First Peoples have never ceded our Sovereignty. As the Blak Sovereign Movement stated, ‘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.’[1]

1.18Since time immemorial, the knowledge and expertise of First Peoples has kept the lands and waters in the Basin in optimal health, while sustaining the cultural, social, and economic well-being of First Peoples. 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 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), to which Australia is a signatory, have been systematically erased and negated from water management and decision making.

1.19This Bill 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 just 0.2 per cent of available surface water in the Basin, and, in some regions, water ownership has decreased since the Basin Plan was legislated. This Bill as it stands does nothing to address the water injustices experienced by First Peoples throughout the Basin. As KateHarriden pointed out in evidence to the inquiry, the use of the term ‘our’ in the title of the Bill must be called into question, as it is evident that ‘it is not First Nations rivers being restored, given the absence of First Nations peoples, our water ontologies, axiologies, management praxis or epistemologies in this bill’.[2]

1.20The Albanese Government has made explicit election commitments to ‘increasing First Nations ownership of water entitlements and participation in decision making’.[3] The Minister for Environment and Water, the Hon Tanya Plibersek MP, has made strong public statements about improving First Peoples’ water rights and access, though seems to have forgotten these commitments in progressing this legislation. First Peoples’ faith in the government is at an all-time low, and this presents an opportunity for the Albanese Government to restore some good faith by delivering on their stated commitments to justice for First Peoples, particularly following the failed referendum. Without addressing First Peoples’ water injustice, this legislation will be a huge missed opportunity and risks becoming yet another broken promise from the colonial state, which continues to deny and dismiss the existence of First Peoples’ water rights and exclude us from water access and ownership.

1.21The Restoring our Rivers Bill 2023 is a long-overdue opportunity to update legislation, policy and resourcing arrangements to ensure they address the enduring rights and aspirations of First Peoples. 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 have been put forward by First Peoples in this inquiry. As Murray Lower Darling Rivers Indigenous Nations (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.’[4]

1.22This advocacy has been supported by environmental groups, legal experts and industry bodies, and these calls to strengthen First Peoples’ water rights and interests have been echoed resoundingly throughout the Senate inquiry process, as well as in the Murray Darling Royal Commission Report (Commissioner Bret Walker SC, 2019) and the Productivity Commission’s Murray–Darling Basin Plan Implementation reviews in 2018 and 2023 (interim report). There is unanimous agreement amongst these stakeholders that taking this action must not wait any longer and cannot be deferred until the Basin Plan review in 2026 or the statutory review of the Water Act in 2027. The agreement that this legislation gives effect to excluded First Peoples and their representative bodies. Any agreement that does not involve all First Peoples, whose lands, waters, livelihoods and cultural heritage are being impacted, is invalid and should therefore not be relied on to guide the development of legislation.

1.23As such, I am concerned that, without the following initiatives, the health of the rivers in the Basin and the rights of First Peoples will continue to diminish.

Ensure tangible First Peoples’ water rights and interests through delivery of WESA

1.24In their submission, MLDRIN stated that it is the intention that projects under the delivery of the WESA could involve benefits for Basin First Nations through land and water purchase packages. However, they note that ‘with the Bill in its current form, there is no guarantee or assurance that any Basin First Nations will be able to benefit. Tangible measures to address Basin First Nations water injustice should be enshrined in legislation to counteract the impacts of the ever-changing political cycle.’[5] Additionally, NSW Aboriginal Land Council (NSWALC) highlighted how current requirements in the Water Act and Basin Plan to ‘have regard to’ First Peoples’ values, uses, objectives and outcomes ‘presents no meaningful recognition of our rights and interests in our waters and in turn no assurance for any tangible outcomes.’[6] As such, building on Recommendations 9 and 13 in the main report, there are a number of proposed changes to the WESA provisions to improve First Peoples water rights and ownership.

1.25MLDRIN has developed drafting proposals that give effect to the recommendations put forward by themselves and others, and these proposals are attached to this report (Attachment A). As stated in questions on notice, these ‘drafting proposals operationalise our recommendations and reflect the principles articulated by First Nations over many years. Our specific drafting proposals also draw on advice and directions from the Murray Darling Basin Royal Commission Report and the National Cultural Flows Research Project law and policy review report (A multi-layer plan for cultural flows in Australia)’.[7]

Recommendation 1

1.26Amend the Water Act 2007 to ensure water purchased through the WESA must provide for First Peoples’ water ownership, including that any combined land and water package purchase facilitated through WESA must be held, owned and managed by Basin First Nations and/or their nominated representative organisations.

Recommendation 2

1.27Amend section 86AE to include a legislated minimum commitment of water from WESA funds is transferred to Basin First Nations ownership.

Further improvements to the Water Act 2007 to recognise Basin First Nations’ rights to procedural justice and water access and ownership

1.28As the committee report states, ‘the 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’. Building on this, the Bill must be amended to incorporate this evidence, including amendments proposed by MLDRIN, NSWALC, Kate Harriden, Fred Hooper, Blak Sovereign Movement, Wentworth Group of Concerned Scientists, Murray-Darling Conservation Alliance, National Irrigators Council, Lifeblood Alliance, Environmental Defenders Office, Environmental Justice Australia, Wentworth Group of Concerned Scientists, Richard Beasley SC, and numerous others.

Recommendation 3

1.29The Bill should be further amended to ensure explicit recognition of Basin First Nations’ water rights and interests and associated objectives, including in the Objects of the Act and aligning it with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); procedural justice and meaningful consultation for First Peoples, in line with the principles of Free, Prior and Informed Consent (FPIC); First Peoples water access and ownership; measures to ensure proper representation by First Peoples in all water resource plans and the next iteration of the Basin Plan; and mechanisms to ensure that all water resource plans and the next Basin Plan include First Peoples objectives and flows, as determined by First Peoples themselves, supported by additional water recovery. Details on these amendments are provided in Attachment A.

Policy, program and resourcing commitments to deliver outcomes for First Peoples

1.30It is essential that the government make substantial policy, program and resourcing commitments for First Peoples water acquisition that meaningfully address the scale of First Peoples’ cultural obligations across the Basin.

1.31I agree with the committee’s support for additional funding for the Aboriginal Water Entitlements Program, which is massively delayed. MLDRIN have provided additional information to their submission on the lost value caused by these delays.

Recommendation 4

1.32The Minister for Environment and Water must properly resource the Aboriginal Water Entitlements Program (AWEP) to account for the lost value caused by delays; the additional $50 million promised by the ALP for cultural water in 2019; and adjustments for inflation. Factoring in these considerations would bring the total of the AWEP program funding to approximately $120million, at a minimum.

Recommendation 5

1.33The Albanese Government must make significant investment in Basin Nations’ preferred representative bodies to determine appropriate water holding arrangements for entitlements acquired through AWEP.

Recommendation 6

1.34Genuinely 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.

No more broken promises to First Peoples

1.35The Albanese Government must fulfil its commitment to First Peoples in this country by implementing the remaining measures of the Statement from the Heart, Treaty and Truth.[8]

Recommendation 7

1.36The Albanese Government must immediately begin a process of Truth-telling, to tell the history of this place and allow First Peoples to heal. This will allow us to learn about the ravages and destruction that our lands and waterways have occurred as a result of colonisation and exploitation of First Peoples and our natural resources.

Recommendation 8

1.37The Albanese Government must immediately begin a Treaty process with all Sovereign First Peoples, which will enable all language groups to self-determine their own aspirations in relation to water access, use and ownership.

Community transition fund

1.38Several submissions spoke about the need for a transition fund to support communities in the Basin impacted by water recovery, climate change, and poor water quality. These impacts are felt most strongly by First Peoples, and any transitional fund must take this into account. Wentworth Group of Concerned Scientists stated, ‘there is a strong case for the Commonwealth Government to review its approach to community assistance and establish a ‘transition fund’ with clear criteria and goals developed in consultation with communities to improve their long-term sustainability and resilience.’[9]

Recommendation 9

1.39Establish a transition fund to support communities in the Basin impacted by over-extraction, climate change, and water recovery. This must include a dedicated component to address the detrimental impacts of poor water management on Basin First Nations, as well as communities disproportionately impacted by climate change and reduced water availability.

Recommendation 10

1.40If the WESA account is chosen as the funding mechanism for the transition fund, assurances must be made to ensure that adequate funding is available to support communities while not impacting on water recovery measures and delivery of First Peoples water outcomes.

Recommendation 11

1.41The Albanese Government must make a substantial funding commitment to ensure the full delivery of the Basin Plan, delivery of First Peoples water outcomes, and adequate support for communities impacted by over‑extraction, climate change and water recovery.

A rights-based approach

1.42The report notes that ‘the EM states that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Parliamentary Joint Committee on Human Rights did not comment on the bill.’ It is important to note that the committee, even if it was to review this bill, is not required to consider its compliance against the principles of UNDRIP.

1.43As was highlighted by Kate Harriden, this bill was not assessed against the principles of UNDRIP:

...this legislation is not human rights compliant, in light of the Australian government’s support for the United Nations Declaration for the Rights of Indigenous Peoples in 2009. Clauses three, five, 11(1), 18 and 26 are particularly, but not exclusively, relevant in the context of this legislation. Further, the amendment appears blind to the need for free prior and informed consent from First Nations peoples “before adopting and implementing legislative or administrative measures that may affect them” (UNDRIP, 2007, Article 19).[10]

Recommendation 12

1.44The Albanese Government must ratify UNDRIP into our domestic law as a matter of urgency, and commit to establishing a process for auditing existing legislation against the principles of UNDRIP and developing a National Action Plan for implementation of UNDRIP.

Recommendation 13

1.45The Human Rights (Parliamentary Scrutiny) Act 2011 must be amended to include UNDRIP in the list of international instruments, as well as additional provisions to ensure that no Bill can pass before being considered by the committee and assessed for its compliance with the principles of UNDRIP.

Victoria

1.46The agreement that this legislation gives effect to does not include Victoria. The Victorian Government has outlined in its submission what would be required for it to sign onto the agreement and fulfil its obligations to deliver the Basin Plan, noting the failed efforts of the New South Wales Government to deliver environmental water with little recourse. A cooperative approach that includes all Basin States is essential to deliver the Basin Plan, however it is essential that this also includes all Basin First Nations who have been systematically excluded from development and implementation of Basin Plans to date.

Recommendation 14

1.47The Albanese Government must work in a collaborative manner with the Victorian Government to ensure its participation and cooperation in the delivery of the Basin Plan, including measures to ensure that northern Basin environmental outcomes are better protected and connectivity are expressly targeted by the WESA. This engagement must include all First Peoples whose lands and waters lie in so-called Victoria.

Conclusion

1.48I reject the committee’s proposal that a number of crucial reforms, particularly in relation to First Peoples water rights and incorporating the impacts of climate change (including but not limited to Recommendations 13 and 14 of the committee report), cannot occur now. First Peoples have long advocated for these proposals, and scientists and First Peoples have been drawing attention to the devastating impacts of climate change on the lands, waters and skies in the Basin since well before this legislation was first developed over 16 years ago.

Recommendation 15

1.49Substantial amendments must be made to the Bill to ensure the health of the rivers and Country in the Basin and improve social, cultural and economic outcomes in the Basin.

Senator Lidia Thorpe

Participating Member

MLDRIN Proposed amendments