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ABSTRACT
In Australia, contestation over the use of water resources remains fierce and these contests extends into regional cities and urban capitals. The 2008 Echuca Declaration by the Murray Lower Darling Indigenous Nations called for a share of these water entitlements to be legally and beneficially owned by First Nations with an associated right to use such resources for economic liberation – termed as ‘Cultural Flows’. This was necessary because of the inadequacies First Nations of the Murray–Darling Basin encountered when seeking legal recognition of their cultural rights to water; but as the literature has shown these difficulties are not unique to just First Nations of the Murray–Darling Basin. Similar problems confront First Nations throughout Australia, especially so in urban Australia. There is limited research into how Cultural Flows can be procured in cities, or how recycled water and treated urban stormwater runoff might have a part to play in the achievement of cultural water management objectives set by Indigenous communities. Centred on the Victorian planning scheme, this research aims to bridge this gap through a policy analysis of recycled water and urban stormwater runoff governance. From here, how this approach might be implemented is discussed.’
Acknowledgments
In this paper, the author acknowledges that they are a research non-binary academic who is entirely white, and has the advantages and privileges of that identity extended to them. This also means that the author is not able to fully grasp and understand the experiences of Indigenous Australians. As such, this paper is primarily concerned in writing from a viewpoint that is within its’ grasp, and in a capacity that doesn’t infringe upon the sovereignty of Indigenous Australians. Its focus is primarily around the ways in which reclaimed water can be used to assist in the delivery of cultural flows in Australian cities. Understanding the need for First Nations and the nation-state to sit shoulder to shoulder, and to discuss these issues is key to the successful implementation of Cultural flows. This space would allow for intercultural epistemologies to be built between First Peoples and the settler-colonial nation. This paper also acknowledges its biases descending from its lack of quantitative and qualitative empirical research conducted in collaboration with First Peoples. The resources to conduct such rigorous analysis were not available to the author in the creation of this manuscript.
The author would also like to make acknowledgement of the Marcus Lancaster who gave insights and advice on this paper when it was first drafted in requirement of the completion of a Masters of Laws subject. Acknowledgement is given to Asher Harrington who assisted in proofreading the article. The author also acknowledges the work of Lee Godden and Jane Bloomfield in assisting with their helpful insights.
Notes
1. More general reading can be found in: Ehrlich (Citation2002).
2. Legal realists took this view. Further reading can be found in the works of legal realists such as Karl Llewellyn.
3. Kelsen generally made comment that about the basic norms of a legal system.
4. It is worth noting that issues around the management of the Basin water resources have not been solved by the introduction of the Water Act 2007 (Cth). Indeed there have been consistent claims of illegal theft of water by large irrigators, deliberate maladministration by government departments, continued over-allocation of water resources, and mismanagement of the ecology (McCormick Citation2010, Citation2013; Slattery and Campbell Citation2019; Walker Citation2019). In South Australia, a Royal Commission has been established to handle claims of systemic mismanagement by various different actors (Walker Citation2019).
5. Consumptive use and Environmental and Other Public Benefit Outcomes uses defined by the NWI would need to be changed. Consumptive use extends to irrigation, industry, urban, and stock and domestic uses; Whilst stock and domestic doesn’t require a water access entitlement (being a water right), all of the other uses do. Further reading: Macpherson (Citation2017, p. 6).
6. These estates may be granted under individual state-based legislation, or under the Native Title Act. Traditional customs, laws, and rights are maintained under Indigenous law in these estates (Craig Citation2007).
7. This loss for the Yorta Yorta was felt strongly as it set a precedent for South-East Australia: that native title would struggle to be recognised due to the restrictive legal parameters determined in the ruling. Further reading can be found in: Weir and Ross (Citation2007).
The following year a report on Australian water allocation mechanisms recognised the need for greater emphasis on social justice issues associated with environmental water allocation plans. Further reading: Schofield and Burt (Citation2003).
8. There are also ambiguities around whether the use of water for commercial purposes in pre-sovereignty times (were such a right or interest to be recognised) would be the same for the use of water for commercial purposes now (Elizabeth J. Macpherson Citation2017, p. 12).
9. In New South Wales, the cultural water licences designed for First Nations have been described as both ‘restrictive’ and ‘obscure’ (Jackson and Langton Citation2012, p. 1). Such licences have not been able to adequately account for the evolving management objectives of First Peoples, and have been argued as instead ‘privileg[ing’] pre-colonial practices (Jackson and Langton Citation2012, p. 123). Further reading in: Jackson and Langton (Citation2012).
10. Changes, which recognise communal ownership of water licences for commercial purposes, are useful for the achievement of Cultural Flows writ-large; however, it would also require the reworking of uses described by the NWI.
11. Reference is made to riparian rights of landowners to have water flow in its natural state without diminution or alteration, and that it is for the common benefit of all (ICM Agriculture Pty Ltd v The Commonwealth Citation2009, p. 38).
12. The strategy also includes Involvement of First Peoples is cultivated through water sector partnerships (through Traditional Owner and Aboriginal Victorian Waterway Assessments); sectoral engagement to create access to water for economic development of the Indigenous community; as well as involving Indigenous Peoples in decision making and implementing water access entitlement frameworks (Department of the Environment, Land, Water and Planning Citation2016)
13. This plan has since been formalised and is primarily concerned with water management systems and improving system efficiencies through integrated management.
14. The legislation also provides that the Victorian Environmental Water Holder now has a statutory duty, to look for opportunities to:
Provide for Aboriginal cultural values and uses of waterways when carrying out their other statutory functions;
To include, where possible, Traditional Owners or Aboriginal Victorians in consultative committees and on the Victorian Catchment Management Council; and
To consult with Traditional Owner Groups, native title holders and specified Aboriginal parties for the preparation of management plans and strategies for waterways and catchments.
As outlined in the ‘Water and Catchment Legislation Amendment Bill (Citation2019): Explanatory Memorandum’ (Water and Catchment Legislation Amendment Bill Citation2019: Explanatory Memorandum; Water and Catchment Legislation Amendment Bill Citation2019), and on the ‘Water and Catchment Legislation Amendment Bill (Citation2019)’ website (Australian Institute of Aboriginal and Torres Strait Islander Studies Citation2019).
15. Further reading on the specific provisions of the legislation which are likely to engage Traditional Owners in water management in Victoria can be found in: O’Bryan (Citation2019, p. 108).
16. As well as monitoring and auditing this inclusion of the Indigenous community in implementation.
17. There is no specification as to what establishing and planning for long-term targets might be.
18. This also includes Treaty, the constitutionally enshrined Indigenous ‘voice’ to Parliament, native title law reform, constitutional law reform, agreements and partnerships, principles of international law (human rights).
19. Such uses include agricultural production; fire-fighting; irrigation of crops, parks, gardens, and sports ground; flushing toilets; silviculture; washing cars; laundry washing; surface water augmentation; aquifer storage and recovery; and restoring wetland water reserves.
20. This treatment process usually requires highly specific infrastructure to bring the water up to an appropriate standard before it is considered a tradeable commodity (Di Carlo and Sherman Citation2004).
21. Due to the process of water reclamation being energy intensive, it does have an associated economic cost with its production. This cost is worn by the primary producer (who’s required to get the reclaimed water up to standard), meaning they have an incentive to make return on the money invested in treating the reclaimed water. There are multiple variables which determine the effective cost of reclaimed water. In addition, this paper fully supports the ‘collaborative’ design process with Indigenous Peoples, as advanced in the Implementation Principles of the Nelson, Godden, and Lindsay (Citation2018) report.
Whilst it is currently unknown what the reclaimed water might be used for in pursuit of these objectives, it is feasible to consider that infrastructure would need to be inserted to link up both these plants with the Birrarung catchment. This would require a (presumably large) capital expenditure, and this should be factored in to any such plans. It is anticipated that if this infrastructure linking the catchment and the treatment plants were to be built, then there might also be calls to use recycled water for other purposes too; this would necessitate wider consultation with the community.
22. In Section 8, subsection (4)(c) it states that an individual has the right to use rainwater or “other water that occurs or flows (otherwise than in a waterway or bore) on land occupied by that person”, or – granted they have obtained permission from another person (The Water Act (Citation1989), (The Water Act Citation1989, p. 39) – the land occupied by that same other person. If a dam is created using rainwater, a person may use that water as they please (The Water Act (Citation1989), (The Water Act Citation1989, p. 39).
23. The specific land-use zones to which these apply are listed in Amendment VC154 – Stormwater Management. There are a number of planning permit applications which do not have the same stormwater management which are also listed in VC154.
24. Further to this, the urban drainage networks were designed to remove urban runoff as quickly as possible (avoiding flash-floods) (Chesterfield et al. Citation2016). As such urban runoff tends to be of low quality, and tends to spill into the waterways of Melbourne with great speed. There are a limited number of water infrastructures in place along the lower reaches of the Birrarung to control these flows.
25. There is new research which is now suggesting that decentralisation of water treatment may be a more effective approach to water management with growing climate instability (McCallum et al. Citation2016).
26. Local planning provisions as set by the relevant authority play an important role here, as well as the provisions relating to Water Sensitive Urban Design. Similar provisions as set by the minister for planning through the Victorian Planning Provisions, or the State Planning Policy Framework, could also be used to manage urban runoff and recycled water.
27. In particular, the use of raingardens; swales; wetlands; greywater harvesting; rain water tanks; green roofs; and porous pavements has been instrumental in helping to purify urban runoff (State Government of Victoria Citation2015). There is a significant body of evidence which suggests that the use of infrastructure, such as those above, can lead to significant and permanent reductions in storm water pollutant loads (up to ten times less pollutant loads when compared to their regular drain partners) in suburban catchments (Willis, Cunningham, and Ryan Citation2013; Woznicki, Hondula, and Jarnagin Citation2018). Furthermore, evidence suggests that having redundant infrastructures can allow for the purification of record-breaking floods (Woznicki, Hondula, and Jarnagin Citation2018).
28. The Victorian Auditor General lists ‘collaborate’ as the highest level of engagement with different groups to achieve an outcome, and as such, the term ‘collaborate’ is used here (Greaves Citation2017). This concept is in line with that of decolonising by allowing First Peoples’ direct input from the very start to the very end of project design (Greaves Citation2017; Quijano Citation2013).
29. Potential exemptions could be granted for specific regulatory requirements if they’re deemed to be excessive and unnecessary.
30. In addition to developing implementation and evaluation schemes for these objectives.