First Nations launch legal challenge over consultation failures in Murray-Darling Water Resource Plan
October 26 2023
A confederation of more than 20 Murray-Darling Basin First Nations has launched a legal challenge against Federal Environment and Water Minister Tanya Plibersek’s approval of a Water Resource Plan last year.
The NSW Fractured Rock Water Resource Plan (WRP) covers management and use of significant parts of the state’s groundwater.
As part of the Murray-Darling Basin Plan, the environment minister accredited the WRP in November 2022.
The accreditation was given on the request of the NSW Government and the recommendation of the Murray-Darling Basin Authority.
However, Murray Lower Darling Rivers Indigenous Nations (MLDRIN) says the affected Nations were not properly consulted, including about their social, cultural and spiritual values of the water resources.
As a result, MLDRIN will argue the water resource plan does not comply with the law, and will ask the Federal Court to rule that the minister’s accreditation of the plan is legally invalid.
If successful, MLDRIN will call on NSW authorities to undertake proper consultation with Basin Nations to ensure all the state’s water resource plans meet Basin Plan requirements.
Separately, MLDRIN is also seeking significant amendments to the Restoring Our Rivers Bill currently before Federal Parliament, including:
- changes to the Water Act to enable recognition of First Nations water rights and interests;
- procedural justice and decision-making rights; and
- substantive rights for water access and ownership.
MLDRIN Chair and Ngarrindjeri citizen Grant Rigney said: “Our Nations have been backed into a corner. We have repeatedly raised our reasonable concerns with Minister Plibersek, and in MLDRIN’s assessment, we have been entirely disregarded.
“We also want to see wholesale reform of the consultation process and vastly improved provisions for First Nations water rights in the Water Act and Basin Plan, including through the Restoring Our Rivers Bill that’s currently before parliament. We’ve made 19 recommendations to the parliamentary inquiry that set out what needs to be done.
“We cannot wait for legislative reform. This is urgent. So, we’re taking this legal action now to ensure the law as it stands is upheld and our rights are respected.”
MLDRIN Deputy Chair, and Tati Tati Millu Wudungi (Murray River man), Brendan Kennedy said: “Our culture has survived for millennia. The Murray-Darling isn’t just a river system, it’s our life blood, the source of our cultural economies, as well as an ancestral being. The result of 240 years of mismanagement and water dispossession is the ongoing suffering of our people. We have no other option but to take legal action. Water is life for us, without it the injustice against our people continues.
“We hope not just to win this case, but to set a precedent that ensures that all Murray-Darling Basin Water Resource Plans must be properly undertaken according to fair and reasonable standards of consultation. Such consultation with Basin Traditional Owners about the management of water resources is an inherent right.”
EDO Special Counsel Emily Long said: “This is an important case. First Nations have been seeking water justice in the Basin and getting nowhere. The Water Act contains only the barest of consultation requirements for First Nations and in this case MLDRIN argues that even those were not met. This is despite MLDRIN gathering detailed and constructive feedback directly from Traditional Owners for the Murray-Darling Basin Authority and the commonwealth water minister.
“Water Resource Plans need to be prepared properly. The Basin Plan establishes one requirement for consultation with Traditional Owners on Water Resource Plans and that is in the drafting process. This must be done properly to give First Nations a meaningful opportunity to contribute to water resource management and to care for their Country.
“On behalf of MLDRIN, we will ask the Federal Court to find that the minister’s decision to approve the plan, and the Murray-Darling Basin Authority’s decision to recommend approval, were invalid.”
Basin Nations have a cultural and moral obligations to care for Country, including all waterways. Activating their rights and knowledge systems will be critical to achieving healthy Country in the Basin. To be able to do that Basin Nations need to be properly consulted on the laws, regulations and plans that everyone in the system must abide by, and Basin Nations need to be listened to.
The NSW Fractured Rock Water Resource Plan is one of the plans that is crucial to the implementation of the Murray-Darling Basin Plan. Only seven of the required 22 NSW Water Resource Plans are in operation, despite an original deadline of June 2019.
The plan was accredited by the Federal Environment Minister Tanya Plibersek in November 2022 on the recommendation of the Murray Darling Basin Authority, after it was submitted by the former NSW Coalition Government.
As the representative body for more than 20 Basin Nations, MLDRIN has repeatedly raised objections to the consultation process that informed the plan and the resulting lack of water rights provisions in the plan itself. With the plan now accredited, MLDRIN has launched a legal challenge in the Federal Court asking for the plan to be invalidated.
MLDRIN argues that consultation requirements with First Nations rights holders were not met, including a complete failure to consult with the Tati Tati Nation. MLDRIN argues that several legal errors follow. These include that the plan does not satisfy requirements to identify Traditional Owners’ water management objectives, and to be informed by the social, spiritual and cultural values of Traditional Owners. As a result, MLDRIN argues that the WRP is not compliant with the Murray-Darling Basin Plan
Restoring Our Rivers Bill
The Federal Government has made explicit election commitments to “Increasing First Nations ownership of water entitlements and participation in decision making”.
The Federal Restoring Our Rivers Bill is currently before parliament and subject to a parliamentary inquiry. The draft bill includes no substantive measures to improve outcomes for First Nations and fails to deliver on a key part of the government’s Five-Point Plan for the Murray-Darling Basin.
MLDRIN has made submissions to the parliamentary inquiry for the bill with 19 recommendations.1 MLDRIN’s submission calls for provisions in the Bill to ensure water recovered under the Water for the Environment Special Account (WESA) can provide for improved Basin First Nations water access, ownership, and management. The submission also details optimal reforms to the Water Act to recognise Basin First Nations’ procedural and substantive rights relating to Basin water resources and calls for additional policy, programming and resourcing commitments.
1 MLDRIN submissions to the parliamentary inquiry https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/MDBAWaterBill2023/Submissions
Photo caption: MLDRIN Deputy Chair and Tati Tati Millu Wudungi (Murray River man) Brendan Kennedy stands alongside the Narcooya Creek, Belsar Island (Northern VIC).
Credit: Photo Doug Gimesy
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