Yoorrook truth-telling inquiry told of ongoing dispossession of water rights for Indigenous groups

Yoorrook truth-telling inquiry told of ongoing dispossession of water rights for Indigenous groups
  • PublishedApril 28, 2024

Brendan Kennedy’s people have cared for Margooya Lagoon in Australia’s inland river system for thousands of years.

But the Tati Tati and Wadi Wadi Traditional Owner says his rights to his ancestral lands and waters have withered away since European settlement.

“Europeans are cutting down the trees and digging up our mother earth, killing our kangaroos and killing our water right before our eyes,” he told Victoria’s Yoorrook inquiry into colonisation.

“You know the old saying of dying a death of a thousand cuts? Well, we are dying a death of a million cuts.”

a wide shot with a tall eucalyptus tree in the middle and water running either side of it
Victoria’s Tati Tati people have been caring for Margooya Lagoon for thousands of years.(Supplied: Tim Herbert)

Margooya Lagoon would naturally flood during peak rainfall events on the east coast of Australia.

But Traditional Owners say that rarely happened after the introduction of locks and weirs to manage flows on the nearby Murray River.

Mr Kennedy said the network of rivers and creeks that flowed through his region was akin to veins running through a human’s body and vital to the health and survival of First Nations people.

“There is a very special energy that we feel,” Mr Kennedy said.

Water allocations in Australia are drawn from a system of rivers and creeks known as the Murray Darling Basin, which is more than double the size of California.

The federal environment department states that First Nations groups hold about 40 per cent of Australian land through native title claims, yet own and control less than 0.2 per cent of water.

Mr Kennedy said much of the water promised from authorities by 2025 to bring life back to Margooya Lagoon had not been returned.

“Under the western water system, we [the Tati Tati people] own 0.00 per cent,” he said.

“We’re being dispossessed as we sit here.”

“Water back to traditional owners is what needs to happen and that is what we want to see happen from the government.”

Economics of water dispossession

Victoria’s Yoorrook Justice Commission is examining how First Nations people are excluded from water management.

Victorian Water Minister Harriet Shing acknowledged during recent public hearings that colonisation had an ongoing impact on Aboriginal Victorians.

“I acknowledge that as part of the adoption of the British legal system and systems of government, based as they were on British and European value and assumptions, emphasis was placed on the economic value of water,” Ms Shing said.

Revenues streams generated through the Victorian government water trust funds and other income streams amounted to about $83 billion from 2010-2023.

Ms Shing was queried by lawyers assisting the inquiry about how much of that figure had been distributed directly to First Nations people.

“The answer is zero directly,” she told the inquiry.

A stately woman with smoke billowing behind her. She is wearing black rimmed glasses and purple lipstick.
Harriet Shing attends a smoking ceremony outside of Robinvale in north-west Victoria.(ABC Mildura-Swan Hill: Emile Pavlich)

Surface and groundwater in Victoria is sold through entitlements to water corporations, through the government, private irrigators, power generators and for environmental purposes.

Anyone can buy water in Australia’s lucrative market meaning First Nations peoples, like all individuals, are free to do so.

‘Aqua nullius’ foundation of legal system

The term aqua nullius has been coined by academic Virginia Marshall to describe the way water rights and ownership were taken from First Nations groups during colonisation, much like terra nullius or “land belonging to no one”.

Legal academics speaking at the inquiry last week proposed several waves of dispossession of water rights, including how native title cases won land but not water rights after water rights were unbundled from land in 2007.

They also noted how First Nations organisations were priced out of the water market.

University of Melbourne Law School senior lecturer Erin O’Donnell said the concept of aqua nullius was not “mere history”, but the foundation on which the legal system was built.

“The multiple waves of dispossession, the ongoing dispossession, the ongoing exclusion of Aboriginal people in their interests from water has resulted in significant economic loss,” she said.

“I think it would be very valuable for the state to actually document that loss.”

Dr O’Donnell said the process of Treaty, which resulted in the inquiry, between Victoria and its First Peoples could be achieved while negotiating more water rights.

Unlike neighbouring nations, such as New Zealand, Australia has never formalised a treaty with its traditional owners.

“You can return water rights whilst also appointing Traditional Owners to boards of water authorities or other mechanisms that enable them to exert authority,” Dr O’Donnell said.


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