Environment & energy, Food & water | Australia

4 April 2022

A river cannot advocate for itself in a court of law, but it has human custodians who must be allowed to appeal on its behalf, Anne Poelina and Kat Taylor write.

On 22 March, World Water Day celebrated groundwater with the theme ‘making the invisible, visible’, as, unfortunately, water injustice is often invisible to most.

The First Peoples of the Kimberley’s Martuwarra (Fitzroy River) are advocating for transformative changes that will bring justice to people and water – especially groundwater.

One fifth to one third of water used annually in Australia comes from groundwater – the water held underground within the soil, and in the fractures of rock formations. Western Australia, the Northern Territory, and South Australia are particularly dependant on groundwater.

Without groundwater, many towns, farms, and industries would not exist. Nor would countless ecosystems be able to survive.

The mighty Martuwarra is deeply connected to groundwater. The river floods for several months over the wet season, filling the aquifers with groundwater. The river then dries to a series of connected pools through the rest of the year, where it is fed, in return, by the groundwater.

Like many rivers and streams in northern Australia, groundwater provides baseflow which is critically important in times of no rain. Without groundwater, there would be no Martuwarra.

Without the Martuwarra, there can be no river peoples.

There is growing recognition that justice must be accounted for in water management, including in decisions on groundwater. The Martuwarra’s peoples need justice, and ultimately, a righting of the wrongs of ‘aqua nullius’.

More on this: Delivering water justice today

But there is also a need for justice for water itself.

This idea is central to many Indigenous worldviews. Nyikina elders describe relationships with living waters as a vital principle of sustainability.

What then, does groundwater justice like?

For First Peoples, Country and water are intrinsically entwined. Their custodial stewardship is grounded in a world view where everything and everyone is inter-related, valued, and respected as being alive.

In such a worldview, rivers and groundwater hold life and give life, which is why they are known as ‘living waters’. Martuwarra and Martuwarra peoples have their own set of laws that secure their just management. These values enabled an approach to water enshrined in justice for all – both human and non-human beings.

As such, true water justice for Martuwarra, and for the people to whom it gives life, must be based on their right to protect groundwater, for the betterment of everyone.

More on this: The water-climate change emergency

A river cannot advocate for itself in a court of law, but it has human custodians, who are bound to care for it.

Justice for the river means giving those custodians the legal right to appeal water licensing decisions which affect their access to and use of living waters.

A third party appeal right in water licensing decisions will provide those custodians a tool to appeal unjust developments. Currently, only a water licence applicant may request a review of a decision. The voices of the custodians of a river – its people – should be recognised and valued and also given this power.

The Martuwarra Fitzroy River Council leads the promotion of water justice by respecting this relationship between the river and its people and its role as living waters, and acknowledging the river as a living ancestral being that has an ongoing relationship with the life around it.

From this perspective, the Council has proposed a water co-governance arrangement. This is one of the many ways that First Peoples continue to champion best practice water management. Great innovation is happening across Australia in this space, but change needs to be supported by government policy, legislation, and funding.

Alarmingly, in the year of 2019 to 2020, groundwater levels across Australia declined. This is due, in part, to the fact that Australian water planning frameworks do not account properly for climate change.

In the Martuwarra catchment, groundwater is still at reasonable levels. But, it has also been identified as a possible resource for expanding agricultural production.

Even the best water allocation plans are vulnerable to generating poor outcomes. Water reforms are planned, but some bills still await parliaments. Outdated legislation has insufficient protections and does not consider justice from the Indigenous perspective.

Australia must make the invisible visible and explicitly recognise how groundwater, rivers, and people are connected. First Peoples-led water governance, based on relationships with Country, including water, offers a path forward, but leaders must listen and then act.

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