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Native Title Report 2008 - Case Study 2

Native Title Report 2008

Case Study 2
The Murray-Darling Basin – an ecological and human tragedy

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1 Overview

The landscape of the Murray-Darling Basin (MDB) is under severe ecological
stress. Issues such as salinity, poor water quality, stressed forests, dried
wetlands, threatened native species, feral animals and noxious weeds are
commonplace within the MDB. The reasons for this dramatic decline in river
health are caused by water mismanagement including reversal of natural flow
cycles and over allocation of water licences. Generations of bad farm practices
such as deforestation have also played a major role in the ecological disaster
that is the MDB.[1]

Made up of the River Murray, the Darling River, the Murrumbidgee River, and
all creeks and rivers that flow into them, the landscape within the Murray-
Darling Basin (MDB) is incredibly diverse. It includes forests, plains,
grasslands, mountain ranges, and both dry and empheral lakes and wetlands. The
MDB supports a significant portion of Australia’s biodiversity including
species of flora and fauna found only within the MDB, such as the Coorong
Mullet, Superb Parrot and the Murray Cod. These systems rely on the natural
drying and flooding regime at appropriate times of the year. This variability
provides for major breeding events of birds, fish and other fauna.

Text Box 1: The Murray-Darling Basin

The MDB is home to a large number of different plants and animals
including:

  • 35 endangered species of birds
  • 16 species of endangered mammals
  • over 35 different native fish species.
The MDB also includes over 30,000 wetlands – some of which
are listed internationally for their importance to migratory birds from within
the Basin, other parts of Australia and overseas.

The MDB is also characterised by a variety of climatic conditions across
its diverse landscape, ranging from sub-tropical conditions in the far north,
cool humid eastern uplands, high alpine country of the Snowy Mountains,
temperate conditions in the south-east, and hot and dry in the semi arid and
arid western plains.[2]

 

Map 1: The Murray-Darling
Basin[3]

A map of Murray Darling Basin in black and white

The MDB is also an ancestral geographic domain, with nationally and
internationally significant ecological sites, including four of the largest
River Redgum forests in the world. The MDB also includes a number of Ramsar and
World Heritage listed sites:

  • Barmah-Millewa Forest
  • Gunbower/Koondrook Forest
  • Perricoota Forest
  • Werai Forest
  • Hattah Lakes
  • Chowilla Floodplain
  • Menindee Lakes
  • Lake Victoria
  • Coorong and Lower Lakes
  • Lake Mungo.

The MDB covers 1,061,469 square kilometres, about 14
percent of Australia’s total
area.[4] The Basin is currently
managed between five states and territories: Queensland, the Australian Capital
Territory, New South Wales, Victoria, and South Australia. Each have their own
water laws and policies which amount to an inconsistent approach to the
effective management of the Basin.

The MDB is home to more than two million Australians. As well as providing
drinking water to over three million people (more than one third of these people
live outside the basin), the MDB provides for almost 45 percent of the value of
Australia’s agricultural output, including its sheep and cattle industry
and major food and produce such as wheat, rice, cotton, vineyards, canola and
soy. The MDB also generates approximately $800 million per year in tourism and
recreational industry income.

Text Box 2: Modern perceptions of the Murray-Darling
Basin[5]

The Murray River has been perceived by governments and many others as
central to the economic potential of the nation. This includes modern
conceptualisations of nature, economy and nation – and water.

The Murray River was perceived as a liquid lifeline for agriculture in the
semi-arid and arid inland. In the 1940s and 1950s governments and private
industry popularised the Murray River as a powerful unlimited resource for the
production of agricultural crops.

However, with limited knowledge of the variable natural flow of the inland
rivers and weather patterns (which was at odds with methods of European
agriculture), early settler farmers suffered valuable crop and stock losses, and
extensive flooding destroyed townships such as Moama and Gundagai. To manage
this problem irrigation schemes to drought proof agriculture were developed and
townships were built on higher ground.

With irrigation activity in southern NSW and northern VIC, weirs have
raised the height of water so it can move by gravity to agricultural lands,
along canals and channels.[6] By the
mid 1970s, almost all of the water in the Murrumbidgee Irrigation Area had been
allocated to irrigators.[7]

Today, 90 percent of the water consumed in the Murray-Darling Basin is used
to irrigate agricultural lands, effectively diverting water into new networks,
expanding the system of waterways from ephemeral creeks, to regulated channels
next to irrigated fields.

Individuals and companies apply to State governments for water permits,
licences, allocations or entitlements which are issued as use rights rather than
ownership. Use rights confer the authority to take water form a water
source.[8] More recently, control and
allocation systems have extended to groundwater, with growing recognition that
all water sources are
connected.[9]

 

By way of comparison, the MDB is one of the driest catchments in the world.
The catchment of the Mississippi River contributes 20 times more runoff per
square kilometre while the Amazon catchment contributes 75 times more runoff per
square kilometre.[10]

Although the MDB is one of the most variable riparian ecosystems in the
world, research conducted by CSIRO and the Bureau of Meteorology (BOM) indicates
that while these extreme climate conditions are caused partly by drought, they
may be also partly attributed to global climate change, and that such conditions
are likely to become more
common.[11]

A chart showing the percentage of State in the MDB compared to the percentage of MDB in State

Table 1: Proportion of the State in Murray-Darling
Basin[12]

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2 Indigenous peoples of the Murray-Darling
Basin

Indigenous peoples currently make up 3.4 percent of the Basin’s total
population, 15 percent of the national Indigenous population.

The Murray- Darling River Basin is home to up to 40 autonomous Indigenous
Nations[13] across the five states
and territories. These Traditional Owner groups include the Ngarrindjeri,
Kaurna, Peramangk, Wamba Wamba, Wadi Wadi, Wiradjuri, Yorta Yorta, Muthi Muthi,
Mungatanga, Barkindji, Taungurung, Latji Latji, Wergaia, Wotjabulak, Barapa
Barapa, Gamiloroi, Bugditji, and Nyiamppa Nations.

Map 2: The Indigenous Nations who have formed the alliance the Murray
Lower Darling Rivers Indigenous
Nations.[14]

Click to enlarge
A map of Murray Lower Darling Rivers Indigenous Nations

These Indigenous groups are interconnected by a compatible system of kinship
law, who ‘maintain an on-going social, cultural, economic and spiritual
connection to their lands, waters and natural resources within the
Murray-Darling Basin. Combined, their country extends between the Qld headwaters
through to the Darling and Murray rivers systems within NSW, ACT and VIC to the
ocean in SA’.[15]

While these Indigenous Nations, are independently identified based on their
inherent cultural diversity and their traditions, sites, stories and cultural
practices; they all share a vision for the Murray-Darling River Basin –
and that is a healthy, living river with natural flows and cycles, sustaining
communities and preserving its unique values.

The Indigenous Nations of the Murray-Darling River Basin possess distinct
cultural and customary rights and responsibilities including:

  • a spiritual connection to the lands, waters and natural resources of the
    Basin
  • management of significant sites located along the river banks, on and in
    the river beds, and sites and stories associated with the water and natural
    resources located in the rivers and their tributaries
  • protection of Indigenous cultural heritage and knowledge
  • access to cultural activities such as hunting and fishing, and ceremony.

For the Indigenous Nations of the Murray-Darling River, water is
not separate to the river and the river is not separate from the water within
it. The river incorporates all of the lands and natural resources that rely on
the water, and without the necessary management of the river and its lands and
natural resources the water disappears.

Text Box 3: The Importance of the Rivers to the Indigenous
Nations[16]

Indigenous people tell Dreaming stories that embed the inland rivers as
places of energetic spiritual action by the ancestors. Rather than just one
story, each language group has their own stories about how their country was
created.

One of the most well known Dreaming stories of the Murray River is that of
the giant Murray Cod. The Ngarrindjeri relate how this giant pondee (cod) was
chased down the Murray River, from the junction with the Darling River, by their
ancestral being Ngurunderi who was trying to spear the fish. The pondee thrashed
through what was a small stream, widening it by the movement of its strong tail
and thus creating the Murray River in what is now known as South Australia. When
the pondee was caught it was cut up and the pieces of the pondee became
different fresh and salt water fish species to sustain the Ngarrindjeri
people.

Further upstream, the Yorta Yorta people, whose country includes the
Barmah-Millewa forest tell us about Baiame’s creation of Dhungala (the
Murray River). Baiame sent a giant snake to follow his wife as she travelled
from the mountains to the sea. The path of the giant snake made curves, creating
the river bed which was later filled with rain water to form
Dhungala.[17]

Such stories tie people to the rivers in a potent, spiritual way.

 

The river provides life through food and quality drinking water to Indigenous
Nations, as it does to the Australian community. It also provides natural
medicines to heal sickness, and enjoyment for recreational purposes. The natural
flows and cycles feed all the rivers parts such as the tributaries, creeks, and
nurseries. The native plants and wildlife depend on the river for survival.
Indigenous nations have for generations sought to engage government about
the health of rivers.[18] The entire
ecosystem in and around the river needs to be maintained and looked after. If
water is unhealthy, everything else will
decline.[19]

Indigenous peoples have an obligation under their traditional law and custom
to protect, conserve, and maintain the environment and the ecosystems in their
natural state to ensure the sustainability of the whole environment.

However, historically Indigenous peoples have been excluded from water
management. With low levels of awareness among Indigenous peoples of water
institutions and regulation[20] and
very little opportunity to participate in water management, Indigenous people
have had little to no involvement in state, territory and national consultation
processes, or the development of water policy. This has resulted in a limited
capacity to negotiate enforceable water rights.[21]

As the physical water scarcity of Australia will be increasingly compounded
by the impacts of drought and climate change, the capacity for Indigenous
peoples to access water and secure Indigenous cultural water rights will be
become increasingly important and difficult.

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3 Potential effects of climate change on the
Murray-Darling River Basin and it’s Indigenous Peoples

In an interview with Jessica Weir, Elder of the Ngarrindjeri peoples, Agnes
Rigney discussed the state of the Murray River saying:

It is not alive today, it is a dead river. Not only from just looking at it,
but what it produces. Yes I’ve seen changes. I’ve seen the time when
the river did produce for us well, when the river was clean. You could see the
bottom of it. But to see it now, it makes you wonder how anything could live in
it actually...[22]

3.1 Mismanagement, long-term drought, and climate
change

Indigenous peoples raised a number of concerns in their responses to the
Living Murray Initiative.[23] Central responses were that:

The river is overused and abused and that government has failed to ensure the
river’s resources are used in a sustainable way. In doing so, government
has failed future
generations.[24]

The Murray-Darling River Basin is in a state of crisis and ecological stress.
It is widely acknowledged that extensive land and water mismanagement including
bad farming practices that has included widespread deforestation, and
significant human manipulation of the rivers through the construction of dams
and weirs, has resulted in the reversal of natural flow cycles and over
allocation of water licences.

I am concerned that if this current level of mismanagement continues, the
added effects of long-term drought and climate change will see the demise of the
Murray-Darling Basin.

The CSIRO reports that:

The major challenge for future water resource management in the MDB is to
achieve sustainable water resource use while optimising economic, social and
environmental outcomes in the context of a climate which is highly variable and
non-stationary. The approaches of the past which assume an
‘equilibrium’ climate are no longer
adequate.[25]

 

The condition of the Murray-Darling Basin was established by the MDBC who
found in 2001 that:

The rivers in the Basin are generally in poor ecological condition and that
the current level of health is less than what is required for ecological
sustainability.[26]

Some of the findings of the MDBC included that:

  • Fish populations are in very poor to extremely poor condition throughout the
    River Murray.
  • Macroinvertebrate communities are generally in poor condition and declining
    toward the river mouth.
  • Riparian vegetation condition along the entire river was assessed as
    poor.
  • Wetland quality is significantly reduced.
  • The condition of floodplain inundation is very poor.
  • Levels of nutrients and suspended sediments are undesirably high and
    worsening towards the river mouth.
  • Throughout the River Murray and lower Darling River unseasonal flooding of
    wetlands, loss of connection with the floodplain, habitat simplification, water
    quality and bank erosion are all significant
    issues.[27]

More
recently, the Murray-Darling Basin Commission (MDBC) identified a number of
challenges that require responses if the area is to survive. These challenges
include the following:

  • to improve the quality of the water
  • to discover ways of sharing the water for the long term
  • to keep the river systems healthy
  • to manage the land in a way that provides jobs for the community, while at
    the same time taking care of the
    environment.[28]

The Lower Murray now experiences drought every second year, instead
of every twentieth. In the last two years the Murray has had its lowest inflow
in recorded history and this will worsen with the increased impacts of climate
change. For example, Garnaut reported that a one percent increase in maximum
temperature will result in a 15 percent decrease in streamflow in the
Murray-Darling Basin and he confirmed that as temperatures increase there will
be a simultaneous increase in evaporation
rates.[29]

Additionally, the
level of extraction of water from both
groundwater[30] and surface
water[31] resources for consumptive,
industrial and agricultural purposes is a major contributor to the stress on
this fragile river system. This has been demonstrated by the fact that
consumptive water use across the MDB has reduced average annual streamflow at
the Murray Mouth by 61 percent. The river now ceases to flow through the mouth
40 percent of the time compared to one percent of the time in the absence of
water resource development.[32]

Text Box 4: Projected climate change impacts in the MDB – The
Murray-Darling Basin Sustainable Yields Project

In November 2006 as a
result of the Summit on the south Murray-Darling Basin (MDB) the then Prime
Minister and the MDB state Premiers commissioned CSIRO to report on sustainable
yields of surface and groundwater systems within the MDB. The report provided
assessments for the 18 regions that make up the Basin.

With water
extraction and consumption a major concern within the MDB, the CSIRO found that
while the impacts of climate change are uncertain:

  • by 2030, surface water availability across the entire MDB is more
    likely to decline than to increase, with a substantial decline in the south.
    However, it is possible that their may be increases in surface water
    availability in the north of the MDB. The median decline for the MDB region is
    11 percent – 9 percent in the north and 13 percent in the south of the
    MDB.
  • the median water availability decline would reduce total surface
    water use by four percent under current water sharing arrangements but would
    further reduce flow at the Murray mouth by 24 percent to be 30 percent of the
    total without-development[33] outflow. The majority of the impact of climate change would be bourn by the
    environment rather than by consumptive water users.
  • the relative impact of climate change on surface water use would be
    much greater in dry years. Under the median 2030 climate, diversion in driest
    years would fall by more than 10 percent in most NSW regions, around 20 percent
    in the Murrumbidgee and Murray regions and from around 35 to over 50percent in
    the Victorian regions. Compared to the dry extreme 2030 climate, diversions in
    driest years would fall by over 20 percent in the Condamine-Balonne, around
    40-50 percent in NSW regions, over 70 percent in the Murray and 80-90 percent in
    the major Victorian regions.
  • groundwater use currently represents 16 percent of total water use
    in the MDB. Current ground water use is unsustainable in seven of the twenty
    high-use groundwater areas in the MDB and is expected to lead to major drawdowns
    in groundwater levels in the absence of management intervention. Groundwater use
    could increase by 2030 to be over one-quarter of total water use. One-quarter of
    current groundwater use will eventually be sourced directly from induced
    streamflow leakage which is equivalent to about four percent of current surface
    water diversions.
  • expansion of commercial forestry plantations and increases in the
    total capacity of farm dams could occur by 2030. While the impacts of these
    developments[34] are expected to be
    minor in terms of the runoff reaching rivers across the MDB. The amount of
    surface water required by these developments and the impacts on the
    within-subcatchment streamflow may be significant.

 

Despite the information provided by the CSIRO on the projected impacts of
climate change on the MDB, the Government continues to develop strategies that
encourage the use of water resources. For example, the Governments Carbon
Pollution Reduction Scheme provides incentives for carbon offsets through forest
plantations on an opt-in (voluntary)
basis.[35] This encourages further
farming activity which will also require extraction and manipulation of water
resources. As noted by the Australian Government:

The inclusion of forestry on an opt-in basis will provide an incentive for
forest landholders, including indigenous land managers, to establish additional
forests, or carbon sinks (forests planted for the purpose of permanently storing
carbon). This raises other questions regarding potential shifts in land use from
agriculture and other environmental impacts such as on water systems and
biodiversity. The incentive will be greatest for carbon sinks that are planted
with no intention of cutting the trees down. The incentive will be weaker for
forests that have been planted for the purpose of felling as forest landholders
will need to take account of the possibility of a liability at the point of
felling. The Government is aware of these complex land use policy challenges and
believes that they are best addressed directly through water policy and natural
resource management policy.[36]

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3.2 Wetlands, Water Rights and the Cultural
Economy

Specific to the interests of the Indigenous peoples of the MDB, I am
particularly concerned about:

  • the health of fragile ecosystems including the many wetlands and the River
    Red Gums
  • the recognition and provision of cultural water rights in order to maintain
    culture as well as the environment
  • Indigenous peoples ability to access the cultural economy.

(a) The health of fragile ecosystems

Massive extractions of water from the Murray River for irrigation have
degraded the ecological health of the river country, transforming relationships
previous sustained by the flow of the river water...The consequences of the
over-extraction of water from the inland rivers are so serious that it is being
experienced by the traditional Aboriginal land owners as a contemporary
dispossession of their
country.[37]

The culture and existence of the Indigenous Nations of the MDB is affirmed by
the Rivers. Through circumstance, some have lost opportunities to connect with
and reaffirm relationships with country and with each other. We often hear
Indigenous peoples say that ‘we have survived’. However, extensive
settlement and agricultural industry in the MDB has bought with it ecological
destruction. This has resulted in impacts to traditional owners ability to
maintain their connection to country and their traditional identity. A second
wave of dispossession.

Agnes Rigney of the Ngarrindjeri peoples, defines her experience of living
in, surviving on and experiencing and enjoying country as ‘cultural
living’. Weir understands Agnes Rigney’s understanding of cultural
living as ‘reaffirming continuities with the ecological world through the
practicing and passing on of cultural knowledge and experience. This worldview
clearly identifies a direct link with the loss of life by the river to the loss
of ‘cultural
living’.[38]

Text Box 5: Cultural Living - Agnes Rigney of the Ngarrindjeri
peoples:

I remember as a kid growing up in Loxton how clear the river was, the water
was, and my father was actually making us spears from bamboo. And we used to
walk down to the river and we used to spear the fish. And it is just sad
what’s happened to it now. That was part of cultural living, connected to
the river, that we can’t really practice
anymore.[39]

 

However, despite 15 years of native title which is centred around Indigenous
peoples proving their continued connection to their traditional lands and
waters, the connectivity of Indigenous peoples to their lands and waters remains
unaccounted for in the majority of Indigenous policy.

Traditionally, many Indigenous peoples depended upon the natural resources of
their lands and waters for their livelihoods. Some of these peoples lived
within diverse but fragile ecosystems. As identified by the International Work
Group for Indigenous Affairs at the Conference on Indigenous Peoples and Climate
Change:

The consequences of ecosystem changes have implications for the use,
protection and management of wildlife, fisheries, and forests, affecting the
customary uses of culturally and economically important species and
resources.[40]

These consequences are also a reality for the Murray-Darling Basin, where the
rapid ecological decline of the rivers and waterways is leading to issues such
as salinity, poor water quality, stressed forests, dried wetlands, threatened
native species, feral animals and noxious weeds.

For example, there are 26 native fish species that complete their life cycles
within the Murray-Darling river system. Changes in river flow, physical barriers
to movement (such as dams and weirs), the decline in water quality, removal of
habitat, overfishing, and the introduction of exotic fish (such as carp) and
diseases have made it extremely difficult for many native species to
survive.[41]

(b) Wetlands

The stress experienced by various fauna and flora that rely on the ecosystems
of the MDB is further exacerbated by the declining health of the many wetlands
that form a crucial part of the MDB.

Text Box 6: What is a wetland?

A wetland is any depression in the landscape that has the capacity to
contain water at some time. Wetlands can contain fresh, brackish or saline
water, and can be still or flowing, permanent or temporary, large or small, deep
or shallow, natural or man-made.

Natural wetlands include lakes, billabongs, swamps, estuaries, rivers,
streams and shallow marine areas. Artificial wetlands include reservoirs, sewage
farms and drainage basins.

Many people think that all wetlands must be wet all of the time. In fact,
many wetlands require a cycle of both wet and dry periods to be
healthy.[42] Each wetland has its
own unique ecosystem of plants and animals that depend on the wetland for food,
water and habitat.

 

Wetlands are areas of high biological diversity and assist with maintaining
water quality and protecting the biodiversity. They also provide flood and
erosion protection, a habitat and breeding place for native fish, waterbirds and
reptiles.

Wetlands are also sites of archaeological and cultural significance for
Indigenous and non-indigenous
peoples.[43] For Indigenous peoples,
wetlands are often places where there is significant cultural heritage including
scar trees, artefacts, shell middens, and burial sites. The devastation of
sacred sites, burial places and hunting and gathering spaces, not to mention a
changing and eroding landscape, cause great distress to Indigenous peoples.

The importance of wetlands has been internationally recognised by the
adoption in 1971 of the Ramsar Convention on Wetlands of International
importance especially as Waterfowl Habitat (the Ramsar
Convention).[44] Across Australia,
49 wetlands have now been recognised as being of international significance and
are listed under the Ramsar
Convention.[45] Sixteen of these
wetlands are in the MDB, and around 220 wetlands in the MDB are listed in the
Directory of Important Wetlands in
Australia.[46]

According to the Mallee Catchment Management Authority, many of the wetlands
are under threat from river regulation, pollution, land clearing, introduced
species and climate change.

The Lower Lakes, Coorong and the Murray Mouth are Ramsar listed wetlands that
have been significantly degraded as a result of water resource development,
through for example the construction of barrages that isolate the Lower Lakes
from the Murray mouth.[47] It is
expected that while the impacts of climate change are unclear, the impacts of
climate change would be exacerbated under current water sharing arrangements.
Furthermore, the impact of reduced surface water availability would be
transferred to the riverine environments along the Murray River including the
Lower Lakes and the Coorong.

The most significant impact from reduced inflows is the exposure of sediments
high in sulfates which have the potential to oxidize and produce sulphuric acid
upon rewetting.

Historically a problem of coastal regions, sulfidic sediments have emerged as
a significant threat to the long-term ecological sustainability of
Australia’s inland wetlands and are a sure sign of poor wetland
condition.[48]

Around 3,000 hectares of the Coorong lake bed is affected by sulfidic
sediments and the problem is spreading up the Murray River
Valley.[49] Bottle Bend Lagoon
provides evidence of the most detrimental impacts from reduced inflows into
wetlands resulting in sulfidic sediments.

Text Box 7: What are sulfidic sediments?
  • Sulfidic sediments form naturally when soils are inundated for extended
    periods.
  • Long term wetting, combined with increased salinity leads to the formation
    of sulfidic sediments. When sulfidic sediments are dried and rewet a chemical
    process occurs which releases lots of acid into the system.
  • When the soil is rewetted, excess acid may be flushed into the water
    resulting in harm to fish and vegetation.

 

Bottle Bend Lagoon is a natural ephemeral wetland located in the Gol Gol
State Forest near Mildura in Victoria, on the NSW side of the Murray River. The
construction of Lock 11 weir pool at Mildura changed the natural flows of this
wetland, which has resulted in many years of semi-permanent inundation. This
inundation combined with a drying and wetting cycle in 2001/2002 lead to
significant changes in pH levels from 7.24 (April 2002) to 3.69 (June 2002), and
the intrusion of highly saline groundwater which resulted in lethal
concentrations of heave metals such as aluminium and manganese. This cycle
resulted in a massive fish kill and the eventual death of thousands of trees and
other vegetation.

On a site visit to Bottle Bend Lagoon, traditional owners discussed there
concerns about the state of the Lagoon, and their frustration in addressing
these issues with Government. In particular, they were concerned that some
wetlands are significantly deteriorating in very short periods of
time.[50]

Other traditional owners have also expressed their concern over the scale and
speed of the decline. Mutti Mutti Elder Mary Pappin said:

Such a short space of time! I can’t take my grandchildren down to my
favourite fishing spots and do what I used to
do.[51]

In 2004, the NSW Environmental Trust and the NSW Murray Working Wetlands
Group co-funded a project to examine a range of wetlands in NSW. Of 81 NSW
wetlands surveyed by the Murray-Darling Freshwater Research Centre, 20 percent
showed some evidence of sulfidic sediments. If mismanaged, significant
ecological damage is
expected.[52]

Such degradation of wetlands and waterways also has a significant affect on
the rights of the Indigenous peoples of the MDB to conduct cultural activities
and undertake their responsibilities which ensure the health of the rivers.

(c) River Red Gum Forests

A major feature of the Murray-Darling Basin and its wetlands are the river
red gum forests. River red gum is the dominant tree species on the Murray River
floodplain in Victoria. River red gum forests exist on 269, 444 hectares of
public land within the MDB extending from Lake Hume to the South Australian
border.[53] The two largest river
red gum forests in the world occur within the MDB: the Gunbower-Perricoota and
Barmah-Millewa forests.

For generations, the River Red Gum forests along the Murray River and its
tributaries have supported and nurtured many Aboriginal peoples including
Bangerang, Bararapa Bararapa, Dhudoroa, Dja Dja Wurrung, Jarra Jarra, Jupagulk,
Latje Latje, Ntait, Nyeri Nyeri, Robinvale, Tati Tati, Taungurung, Wadi Wadi,
Wamba Wamba, Way Wurru, Wergaia, Yorta Yorta, and Yulupna. Each of these groups
had deep spiritual links with the
land.[54]

These forests provided Indigenous people with vital resources including
plants, animals, water, minerals and stone, and sustained a lifestyle that not
only serviced basic needs such as food, clothing, tools, medicine, housing and
heating, but also a rich cultural life with jewellery, ornaments, transport,
mythology, art and crafts.

Text Box 8: The high biodiversity value of river red gum
forests

River red gum forest wetlands have high biodiversity value as they provide
habitat for fish and waterbirds (breeding, feeding and refuge areas). This
requires a certain length of flooding duration and time of year. Hollows and
spouts in river red gum provide habitat for water and forest birds, including
two rare species of parrot (Superb Parrot (Polytelis swainsonii) and Regent
parrot (Polytelis anthopeplus)) in the Murray River
region.[55]

This biodiversity is maintained by the health of the river red gum
ecosystem. Stands of river red gum are intimately associated with the
surface-flooding regime of the watercourses and related ground water flow. The
high water use of river red gums contributes to maintaining the watertables at
depth.[56]

 

These forests are also of considerable value to the non-indigenous residents
of the MDB. Many industries, including timber harvesting, honey production and
grazing, have been active in forest areas since the early days of European
settlement.[57]

While these forests are most common in high rainfall areas, river red gum
have adapted to the extremes of the MDB with alternating periods of excess water
availability during floods and periods of water deficit during drought. They are
dependent on surface flooding and groundwater.

A report to the Northern
Victorian Catchment Management Authorities and the Department of Sustainability
and Environment, Mapping the Current Condition of River Red Gum Stands along
the Victorian Murray River
Floodplain[58]
, has identified
that the regulation of the Murray River through dams, weirs, levees and
diversion has drastically altered the flow regime.

In general, average peak monthly flows have been reduced by over 50 percent
along the Murray River. The seasonal distribution of flows has shifted from
winter-spring to summer-autumn since the construction of Hume Dam, regulation
has reduced extensive flooding in the Barmah Forest, and the reduction has been
more pronounced in the Mallee, with the frequency of extensive floods on
Wallpolla Island and Lindsay Island having been reduced. The decline in flooding
frequency, has resulted in a substantial decline in river red gum tree condition
over the past twenty years.[59]

Based on a random selection of 140 sites surveyed on the floodplains of the
Murray River between the Hume Dam and the South Australian border, the lower
Ovens River and the lower Goulburn River, the report predicts that:

  • only 30.1 percent of river red gum stands across the Victorian Murray River
    Floodplain are currently in good condition
  • a downstream decline in the stand condition of river red gum forests and
    woodlands along the Victorian Murray River Floodplain
  • the Victorian Riverina is the only region where the majority of river gum
    stands are in good condition.[60]

The decline in the health of the river red gum forests in the
Murray-Darling Basin has been public knowledge since 1990 with a number of
surveys conducted. These surveys found:

  • in the late 1980s degradation of tree canopies increased dramatically below
    the Wakool Junction in the
    Mallee[61]
  • in 2002, around 52 percent of trees were identified as stressed or dead in
    the Mallee between Wentworth and
    Renmark[62]
  • in 2003 approximately 80 percent of trees showed some signs of crown stress
    on the Lower Murray in South
    Australia[63]
  • in 2004, the sites between Wentworth and Renmark were resurveyed, the
    proportion of trees that were stressed in the had increased to 78
    percent[64]

While the
rapid decline in tree condition has been attributed to the drought, regulation
of the river may also limit the potential of trees to recover. The Mapping
the Condition of River Red Gum Report
observes that stressed trees are
generally found away from the banks of the Murray River and permanently
inundated anabranches on the
floodplain.[65]

Despite the current pressure on the river red gum forests and the
biodiversity that is supported by them, environmental degradation and climate
change presents the market with the impetus to create large scale plantations.
Many commercial interests have enthusiastically engaged with Government to
establish there business in pursuance of new timber products and for the
emerging carbon trade industry in
Australia.[66]

Climate change challenge and mitigation and adaptation strategies that are
being developed to address the associated issues appear to be predominantly
market driven, or focused on economic outcomes. This in itself has the potential
to increase the pressure on the MDB, particularly its area’s of ecological
and biodiversity importance. Weir discusses this in the context of oppositional
worldviews. For example, the influential ‘ecology versus economy’
position.

This perspective tells us what happened and what our responses should be: we
understand that unhealthy rivers are the unfortunate sacrifice we had to make
for economic growth, and that investing in river health is to the detriment of
economic growth. However, we can see with our own eyes that a dying river does
not support our economies. Rather, the far reaching relationships sustained by
healthy fresh water ecologies provide water as a resource for production and a
nurturing life
force.[67]

Contingency planning
has been conducted by the Prime Minister and the Premiers of New South Wales,
Victoria and South Australia regarding wetlands in the River Murray. This
planning acknowledges that some wetlands have an impact on threatened species
that come under the Ramsar Convention and that actions in relation to these will
be subject to the Environmental Protection and Biodiversity Conservation Act
1999
.[68]

Text Box 9: Declaration on the Rights of Indigenous Peoples

Article 29 States:

  • Indigenous peoples have the right to the conservation and protection of the
    environment and the productive capacity of their lands and territory and
    resources. States shall establish and implement assistance programs for
    Indigenous peoples for such conservation protection, without discrimination.
  • States will take effective measures to ensure that no storage or disposal of
    hazardous materials shall take place on lands or territory of Indigenous peoples
    without their consent.

 

(d) Cultural water rights

The cultural flow is not a competition for water. It is a philosophical
change in water management which respects a living world within which our lives
are embedded in ethical relationships of care. There is no cultural flow from a
dead river. The ecological philosophers, the traditional owners, and the
ecologists concur. We must look to our relationships with rivers to understand
how to get ourselves out of this
catastrophe.[69]

Indigenous rights to waters are part of a holistic system of land and water
management. The imposition of the European systems of land and water management
has meant that this holistic system has been fragmented. Under European
administration, Indigenous water needs are not adequately addressed.

While the current legislative arrangements make provision for the recognition
of environmental water, there is limited consideration given to social, cultural
and Indigenous issues.

As identified by Morgan, Strelein and Weir:

Water is central to the survival of Indigenous peoples in Australia.
Indigenous peoples’ survival depended upon knowledge of the both the
episodic and seasonal behaviour of the creeks and rivers, reliable water holes,
and the availability of swamps, springs and soaks. Careful management of the
natural resources of the Murray River meant that food would be available for
important gatherings of thousands of people held over several days. The right to
use and to take water is an essential part of the historical and contemporary
lives of Indigenous Nations.[70]

With Australia naturally being a country of physical water scarcity, I am
concerned about the capacity for the recognition of Indigenous rights and access
to water. In the context of the predicted impacts of drought and climate change,
securing Indigenous cultural water rights will become increasingly important.

The Indigenous Nations of the Murray-Darling River Nations argue that they
require specific cultural water allocations, which they refer to as
‘cultural flows’, to meet their spiritual, cultural, social,
economic and environmental management responsibilities and development
aspirations.

Text Box 10: What is cultural water?

The Indigenous Nations of the Murray-Darling River Basin define cultural
flows as:

water entitlements that are legally and beneficially owned by the
Indigenous Nations of a sufficient and adequate quantity and quality to improve
the spiritual, cultural, environment, social and economic conditions of those
Indigenous Nations.[71]

 

The impacts and benefits of cultural water to Indigenous peoples include:

  • empowerment and social justice - water is being delivered to country by the
    peoples
  • growing native plants
  • protecting and hunting animals
  • song, dance, art and ceremony
  • spiritual sites
  • improved cultural-economic and health outcome through the provision of food,
    medicines and materials for
    art.[72]

While some of
the points raised above could be classified as environmental water, this does
not reduce the government’s responsibility to provide sustainable
resources for the management of water resources.

The Indigenous Nations of the Murray-Darling River Basin distinguish between
cultural and environmental water.

They argue that:

The difference between environmental and cultural water is that it is the
Indigenous peoples themselves deciding where and when water should be delivered
based on traditional knowledge and their aspirations. This ensures Indigenous
peoples are empowered to fulfil their responsibilities to care for
country.[73]

Ian Cohen of the Greens Party, addressed the issue of cultural water
provisions for Indigenous peoples in NSW:

Australia’s international obligations under article 8(j) of the
Convention of Biological Diversity require indigenous traditional owners not be
engaged as stakeholders but as co-managers to map out how to energise and
implement the provision of cultural water in natural resource management
frameworks. Our indigenous communities have an intrinsic and spiritual
connection with the Murray-Darling that goes back untold generations before
invasion. Forging ahead, we must take steps to understand the connectivity
between the cultural and societal capital needs of indigenous nations and align
such needs with allocations for cultural
water.[74]

The provision of environmental water is the responsibility of the State,
however Indigenous people may choose to use cultural water for the purposes of
maintaining their environment and culture.

The Indigenous Nations of the Murray-Darling River Basin also understand that
the volume of water required to bring the Rivers back to a healthy state is
well-known. Therefore questions of volume for cultural water need to be explored
through scoping work with the Indigenous Nations, and that is negotiated using
informed consent and good faith
processes.[75]

(e) Access to the cultural economy

The difficult task of determining how best to manage the scarce water
resources of the MDB cannot side-step the inherent rights of Indigenous Nations
to the use, access, enjoyment and economic utility of the water of the MDB.

Whilst the cultural economy is understood by governments and others to
describe the subsistence economy of the traditional
owners[76], the Indigenous Nations
of the MDB ‘use cultural economy to express themes of ecological
restoration and repair, using the logic of holism to connect ecology, culture
and economy’.[77]

Text Box 11: The cultural economy – Jeanette Crew of the Mutti
Mutti peoples

Jeanette discussed with Jessica Weir how Wamba Wamba women (her close
relatives) want to revive the art of making woven grass baskets and trade them
as part of their cultural economy.

Jeanette raised concerns that the way the water is managed today is
‘interfering with our cultural economy’. For example, for the
grasses needed to make the baskets to grow, the seasonal flood waters need to
return to the swamps in the Werai forest near
Deniliquin.[78]

 

For the Indigenous peoples of the MDB, water resources are an opportunity for
developing rural industries. Water allocation rights can mean inclusion in the
water trading environment for economic development opportunities, or for
achieving cultural and environmental objectives by allocating water for cultural
or environmental flows.[79]

Indigenous peoples across Australia are increasingly being encouraged to
consider options for the effective use of their lands, waters and resources for
economic development. The Federal Government have committed to supporting the
efforts of Indigenous Australians to use their land for economic development, by
facilitating appropriate land use arrangements through negotiation and agreement
with traditional owners.[80]

However, access to economic development for the Indigenous peoples of the
Murray-Darling via their lands and waters has to date been significantly limited
by the priority of water allocations being given to industrial and agricultural
activities, and the policy barriers to having their rights to their lands,
waters and natural resources recognised, including the recognition of native
title.

While it is estimated that the Indigenous estate is currently 20 percent of
land in Australia, the Indigenous peoples of the MDB (who comprise approximately
3.4 percent of the Basin’s population) currently hold less than 0.2
percent of land. This is despite land reforms such as the NSW Aboriginal Land
Rights Act 1983
and the Native title Act 1993 which were introduced
with a specific aim of returning access to lands to Indigenous people. The
National Water Initiative also commits all States and Territories of the MDB to
increasing indigenous representation in water planning; recognising Indigenous
peoples water needs, and providing for Indigenous access to water resources;
incorporating indigenous social, spiritual and customary objectives and
strategies; and acknowledging the possible existence of native title rights to
water.[81]

Addressing the Senate Rural and Regional Affairs and Transport Standing
Committee, Steven Ross explained

Importantly for traditional owners, under the National Water Initiative there
is a component which allows water allocation to native title holders but in
southern New South Wales, Victoria and South Australia the capacity for those
traditional owners to gain native title is limited. We would like to see a
broader expansion of water allocation to other traditional owners who may not
hold or seek native title.[82]

Text Box 12: Declaration on the Rights of Indigenous Peoples

Article 27 states:

States shall establish and implement, in consultation with indigenous
peoples concerned, a fair system to recognize and adjudicate the rights of
indigenous peoples pertaining to their lands, territories and resources.

Article 28 states:

Indigenous peoples have the right to redress, which can include restitution
or compensation, for the lands, territories and resources which they have
traditionally owned but have been confiscated, taken, occupied, used or damaged
without their consent. Compensation usually taking the form of lands,
territories and resources equal in quality, size and legal status or monetary
compensation.

 

Indigenous peoples have a human right to maintain a ‘cultural
economy’. This relates to Indigenous peoples being able to undertake
activities that secure sustainable capital from the natural resources that
traditionally and historically belong to each Nation.

Text Box 13: International Covenant on Economic, Social, and Cultural
Rights

Article 1 of the Covenant states:

  • (1) All peoples have the right to self determination. By virtue of that
    right they freely determine their political status and freely pursue their
    economic, social and cultural development.
  • (2) All peoples may, for their own ends, freely dispose of their natural
    wealth and resources without prejudice to any obligations arising out of
    international economic cooperation, based upon the principle of mutual benefit
    and international law. In no case may a people be deprived of its own means of
    subsistence.
Declaration on the Rights of Indigenous Peoples

Article 26 states:

Indigenous peoples have the right to own, use and develop the lands,
territories and resources, which they have traditionally owned. Additionally,
States should give legal recognition and protection to these areas.

 

In this regard, the Murray-Darling Basin must be seen as a ‘cultural
economy’ to the Indigenous Nations that belong to the Rivers. The
‘cultural economy’ includes all the natural resources in the River
Murray definition.

The river should be recognised and accepted as a ‘cultural
economy’, which has declined as the health of the river has declined.
There has been a reduction in the quantity and quality of fish, yabbies, plants
and animals. Some species have disappeared completely. As this has occurred,
there has been greater reliance on other forms of income, mainly welfare, to
survive.[83]

This cultural economy, which previously allowed Indigenous Nations to
maintain their traditional lifestyle across their country, has been diminished
by the poor health of the river system that has decimated traditional sources of
food and medicines. As one group explained:

The healing that we use Old Man Weed for needs to be done by the River. It is
the same with fish – we need to catch, cook and eat by the River. Now, we
can’t get clay out of the bank to coat the fish or to use on our skin
– this is a big part of women’s
business.[84]

Healthy rivers have the potential to provide commercial opportunities for
indigenous people, for example in areas such as eco-tourism, cultural tourism,
native nurseries and seed collection. However, the current decline in the health
of the river system has led to a decline in the economic position of Indigenous
people.

Cultural water allocations are crucial to increasing the
opportunities for the Indigenous peoples of the MDB to leverage economic
development through cultural economies.

There was a widely held view that a water allocation should be available to
each Indigenous Nation to enable them to exercise their custodial
responsibilities to care for the river system. Each Nation would decide whether
its allocation should be used to increase environmental flows or to help
generate a more independent economic base for their people. The decision would
be taken in the context of the health of the river system and their custodial
responsibilities.[85]

The Murray Lower Darling Indigenous Nations have voiced their position to the
Senate Rural and Regional Affairs and Transport Committee stressing that the
provision of cultural water:

will provide for the continuation of cultural economy, for a sense of justice
for Indigenous people, for the continuation of Indigenous knowledge, for our
involvement in natural resource management and for what ultimately we believe
will be sustainable social, cultural and environmental outcomes for all
Australians.[86]

However, in order for Indigenous people to effectively engage and access
their lands, waters, and natural resources initiatives to encourage more
efficient use of water are vital. Public investment in incentives and assistance
for industry and other water users to change management systems is urgently
required.

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4 Climate change and the human rights of the
Indigenous Peoples living in the Murray-Darling Rivers Basin

The Indigenous peoples of the MDB have a unique relationship with the
Murray-Darling River Basin. This relationship not only includes the benefits
they receive from the river and its environment in terms of sustenance and
cultural economies, but the rivers sustain their culture and confirm their
existence and their identity. In return, Indigenous people have a responsibility
to the maintenance and care of their country that is the MDB. Matt Rigney, a
Ngarrindjeri man describes this special relationship:

We are of these waters, and the River Murray and the Darling and all of its
estuaries are the veins within our body. You want to plug one up, we become
sick. And we are getting sick as human beings because our waterways are not
clean. So it is not sustaining us as it was meant to by the creators of our
world.[87]

The impacts of climate change compounded by the current use and management
arrangements in the MDB are currently affecting the human rights of Indigenous
peoples whose livelihoods depend on the MDB. The United Nations Permanent Forum
on Indigenous Issues are particularly concerned with the impacts of climate
change on Indigenous populations and recommended:

that States develop mechanisms through which they can monitor and report on
the impacts of climate change on indigenous peoples, which considers our
socio-economic limitations as well as our spiritual and cultural attachment to
lands and waters.[88]

For the Indigenous peoples of the Murray-Darling River Basin this is of great
significance. Particularly where non-Indigenous development has restricted
Indigenous peoples’ access to their lands, waters and natural resources.
The commercialisation of water has also meant that the spiritual and cultural
connection to these lands and waters has in many cases been denied.

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4.1 International obligations

As discussed throughout this report, Australia has a number of obligations
regarding the environment and Indigenous peoples rights. These obligations are
the result of Australia’s support for international treaties and
mechanisms, including:

  • the International Covenant on Civil and Political Rights (ICCPR)
  • the International Covenant on Economic, Social and Cultural Rights
    (ICESCR)
  • the United Nations Framework Convention on Climate Change (UNFCCC)
  • the Kyoto Protocol
  • the Convention on Biological Diversity (CBD)
  • the Ramsar Convention
  • The Second International Decade on the World’s Indigenous People
  • the Declaration on the Rights of Indigenous
    Peoples[89]
  • the Convention of the Elimination of all forms of Racial Discrimination
    (CERD).

The Australian Government has an obligation to ensure the
full enjoyment and exercise of these human rights for its citizens, including
Indigenous peoples. As articulated by AIATSIS:

Clean water access is critical for health in all communities. In Indigenous
communities’ lack of supply of clean water is linked to high morbidity and
mortality rates. Unlike the broad rural demographic trends of rural to urban
migrations and an ageing population, Indigenous Nations are staying on their
lands and Indigenous communities have growing, young populations. Supporting
these Indigenous communities is integral to the support of the socio-economic
viability of rural Australia. The provision of services and infrastructure and
the future development of growing Indigenous communities and Nations should be
incorporated into planning
objectives.[90]

In addition, as Indigenous peoples, the Murray-Darling River Basin Indigenous
Nations hold a special status as the first peoples of the lands and waters. As
such, they must be afforded a number of distinct rights that recognise their
rights to; their lands, waters, and natural resources; self determination; and
engagement and participation in government processes that directly or indirectly
impact on their lives.

While the right to life, health, and food are fundamental human rights that
are clearly provided for in international treaties and mechanisms, the following
internationally recognised rights have additional significance for the
Indigenous Nations of the Murray-Darling Basin. These rights include:

  • The right to water
  • The right to a healthy environment
  • The right to culture
  • The right to economic development

How these rights relate to
indigenous peoples is discussed in detail in chapters 4, 5 and 6 of this
report.

While the right to water is critical to the well-being of Indigenous peoples,
Yorta Yorta woman Monica Morgan argues that the United Nations interpretation of
the right to water is limited in that it denies the agency of living beings
other than humans. She argues that the importance of water is considered only in
terms of human needs and therefore is being disrespectful to country. Such
perspectives enable people to transform nature without considering the ethical
consequences.[91]

This argument emphasises discussion raised earlier regarding the disruption
of connectivity for Indigenous peoples and ecology versus economy.

The Declaration on the Rights of Indigenous Peoples supports Indigenous
people’s rights to access, conservation and economic development of water.
It provides that indigenous peoples have a right to maintain and strengthen the
distinctive indigenous spiritual relationship with ‘traditionally owned or
otherwise occupied and used lands, territories, waters and coastal seas.’
It also provides that indigenous peoples have the right to conservation and
protection of indigenous lands and resources with state assistance and the right
to development for all indigenous lands and resources including water.
Allocations of water for cultural purposes (cultural flows) to the Indigenous
Nations of the Murray-Darling River Basin will be integral to fully realise
their rights to water.

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4.2 Domestic Protection

At the domestic level, Indigenous peoples’ rights require legislative
protection. In the development of legislative frameworks such as those relevant
to land, water, and natural and cultural heritage, the following must be
protected:

  • the full participation and engagement of Indigenous peoples in the
    development of policy and legislation that directly or indirectly affects their
    lives and their rights
  • the adoption of and compliance with the principle of free, prior and
    informed consent
  • the protection of Indigenous interests, specifically access to our lands,
    waters and natural resources
  • the protection of Indigenous areas of significance, biodiversity, and
    cultural heritage
  • the protection of Indigenous knowledge’s
  • access and benefit-sharing through partnerships between the government,
    private sector, and Indigenous communities
  • non-discrimination and substantive equality.

In order to fully realise the above human rights for Indigenous
peoples, governments must be conscious of:

  • the need for the protection of intergenerational human rights which requires
    a consideration of ecologically sustainable development
  • the need for conservation regimes which recognise and provide for the
    existence of Indigenous peoples and their co-dependence on their lands and
    waters. For example, that Indigenous peoples rely on their lands and waters for
    survival and caring for country is crucial to both the lands and waters and
    meeting cultural obligations.

For further discussion on the international and domestic
legislative and policy context of Indigenous peoples and climate change, see
chapters 4 and 5 of this Report.

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5 What is being done?

Since the Yorta Yorta Federal Court decision in
1998[92], the Indigenous Nations of
the Murray-Darling Basin resolved to develop a stronger voice for traditional
owners in policy and management responses to the severely degraded Murray River,
including strengthening the relationships between traditional owner groups
through the development of ‘Nation to Nation’
protocols.[93] This resolution
resulted in the establishment of the Murray Lower Darling Rivers Indigenous
Nations (Aboriginal Corporation) (MLDRIN), with an objective to represent
traditional owners and be a platform to engage with government.

MLDRIN is an alliance of 10 traditional owner groups, also known as Nations
whose countries lie in the southern part of the Murray-Darling Basin, including:

  • Wiradjuri, Yorta Yorta, Taungurung, Wamba Wamba, Barapa Barapa, Mutti Mutti,
    Wergaia, Wadi Wadi, Latji Latji, and Ngarrindjeri.

In particular, MLDRIN provides strategic advice from traditional
owners to natural resource management agencies responsible for water and
forestry issues.[94] MLDRIN engage
primarily with State Governments and departments, the Murray-Darling Basin
Commission, and the Commonwealth Government, and it works closely with
environmental groups who are concerned with the health of the rivers and their
interconnected waterways. They have also developed strategic relationships with
Indigenous Research Centres, National Indigenous Working Groups, and Other
Indigenous groups working on the issue of the protection and management of water
resources.

In particular, more recently and throughout 2008, MLDRIN have been actively
engaging with the National Water Commission on the National Water Initiative and
lobbying for the recognition of Indigenous water rights and cultural water
allocations under the Water Act 2007. The Water Act is being amended in
the near future and this will be an opportunity for MLDRIN to strongly advocate
for the provision of cultural water allocations and the recognition of such
allocations to be considered as a ‘critical human need’. They will
also have the opportunity to stress the importance of Indigenous specific
representation by traditional owners on the Murray-Darling Basin Authority.

MLDRIN have also been engaged at the International level, attending the
United Nations Permanent Forum in 2008 in New York, and the International Union
on the Conservation of Nature World Congress on Conservation in Barcelona
advocating for the rights of the Indigenous Nations of the Murray-Darling Basin,
and discussing their concerns related to the Ramsar Convention and the
Convention of Biological Diversity with other Indigenous peoples around the
world.

A number of developments have been progressed in recent years including:

(a) The Murray-Darling Basin Commission (MDBC) and
the Murray Lower Darling Rivers Indigenous Na
tions – The Indigenous
Partnerships Project
(IPP)
[95]

The MDBC has formed a collaborative partnership
arrangement with the Murray Lower Darling Rivers Indigenous Nations (MLDRIN).
Over the last three years together they have developed the Indigenous
Partnerships Project which focuses on establishing a new basis for engaging
Indigenous people in The Living Murray in a way which ensures their social,
spiritual, cultural, environmental and economic interests are included in
planning and management of the icon sites.

The Indigenous Partnerships Project takes a
principle-based approach aimed at achieving consistent and grounded involvement
of Indigenous people in The Living Murray’s decision making and planning
processes. Aimed at improving Indigenous engagement in natural resource
management, the Indigenous Partnerships Project funds the employment of a small
number of Indigenous facilitators and supports an equal number of Indigenous
advisory groups at each icon site.

With this program, the emphasis is on pursuing an
approach that elucidates Indigenous people’s contemporary relationship
with the land as a basis for their input into the environmental management
planning process of The Living
Murray.

(b) Memorandum
of Understanding between Murray Lower Darling Rivers Indigenous Nations and
Murray-Darling Basin Commission

Four years of negotiation with the Murray-Darling Basin Commission (MDBC) has
resulted in a ‘historic partnership
agreement’[96], a Memorandum
of Understanding (MOU) between the Murray Lower Darling Rivers Indigenous
Nations (MLDRIN) and Murray-Darling Basin.

The MOU was signed by the President of the MDBC and authorised
representatives of the Indigenous nations at a ceremony near Albury, New South
Wales, in March 2006. It enables MLDRIN's participation in the management of the
natural resources of the Murray and Darling River valleys below the Menindee
Lakes Storage and establishes a cooperative relationship, so that the use of the
natural resources of the Murray and Darling River valleys respect and benefit
the cultural heritage of the Indigenous
nations.[97]

Of the Agreement, Matt Rigney, traditional owner and Chairperson of MLDRIN,
said:

The signing of the MOU signifies the formalisation of Indigenous involvement
in the programs and projects of the Murray-Darling Basin Commission. We are very
pleased with the increased opportunities to be involved in the management of
natural resources on our Country. This MOU signifies a start of what we hope
will be a long term
relationship.[98]

The Right Hon. Ian Sinclair AC, President of the MDBC also commented:

Cultural perspectives need to be taken into account in the long term
management of natural resources. Managing the Murray and Lower Darling Rivers
requires decisions that go beyond a site-by-site
approach.[99]

Text Box 15: The purpose of the Memorandum of Understanding between
Murray Lower Darling Rivers Indigenous Nations and Murray-Darling Basin
Commission

The purpose of the MOU is to enable the parties to:
  • recognise their shared interests and goals
  • establish a collaboration framework
  • develop dialogue processes with Indigenous nations
  • ensure that Indigenous nations' traditions are part of policy development
    with regard to natural resource management in the Murray and Darling River
    valleys. The parties also agree to create mechanisms and processes for achieving
    the goals of the
    MOU.[100]

 

(c) A Cooperation Agreement between Murray Lower
Darling Rivers Indigenous Nations and Environmental Non-Government
Organisations
[101]

On 23 February 2007, the Murray Lower Darling Rivers Indigenous Nations
entered a cooperation agreement with a number of Environmental Non-Government
Organisations (eNGO’s).[102] The foundation for this agreement is the recognition and acceptance of the
importance of looking after country to both the traditional owners and the
environmental groups.

A core feature of this agreement is that the parties formally recognise the
Wiradjuri, Yorta Yorta, Taungurung, Barapa Barapa, Wamba Wamba, Wadi Wadi, Mutti
Mutti, Latji Latji, Wegaia and the Ngarrindjeri peoples as the traditional
owners of the country centred on the Murray and Lower Darling River systems.
This agreement also confirms a shared responsibility to ensure that this country
is managed and maintained to the highest standard of ecological and cultural
integrity for the benefit of future
generations.[103]

Text Box 16: The purpose of the Cooperation Agreement between Murray
Lower Darling Rivers Indigenous Nations and Environmental Non-Government
Organisations[104]

The purpose of the Agreement is to support the protection of cultural and
environmental values by:
  • Working together to ensure country is managed and maintained to the highest
    standard of ecological and cultural integrity and that there is public and
    community support for this goal.
  • Supporting inherent traditional owner land and water rights and aspirations
    to access and manage country according to traditions and customs across a range
    of tenures.
  • Supporting fair and adequate resourcing for the management of natural and
    cultural values by Indigenous Nations, and the use of Indigenous knowledge.
  • Supporting existing or new industries that are compatible with the
    maintenance of cultural and environmental values, and will provide a livelihood
    and socio-economic development for families, and communities, including the self
    determination of Indigenous Nations.

 

This agreement also includes innovative principles and engagement protocols
that provide for the recognition of the unique rights and interests of
Indigenous peoples to the country, and the protection of the Indigenous
knowledge that underpins these rights and
interests.[105]

(d) Use and Occupancy
Mapping
[106]

As part of the Indigenous Partnerships Project, the Murray-Darling Basin
Commission (MDBC) has been working with the Murray Lower Darling River
Indigenous Nations (MLDRIN) and other representatives of Traditional Owners on a
pilot mapping project with an Indigenous community. Developed in Canada in the
early 1970s, Use and Occupancy mapping is essentially a survey technique based
on mapping an individual’s relationship with the land.

These maps can help identify and record the spiritual, cultural,
environmental, social and economic interests of Indigenous people for each icon
site. This approach focuses on Indigenous people's contemporary connections to
the land in a way that can be directly related and considered in developing icon
site management activities.

As part of this pilot, use and occupancy maps have successfully been produced
for several individuals at two of the icon sites. Indigenous input will be
provided into each of the icon site environmental management plans. Indigenous
Working Groups will ensure that Indigenous involvement is undertaken in
culturally appropriate ways.

Considerable effort has been invested in involving and informing Indigenous
community members regarding use and occupancy mapping, which is now gaining
strong support within the Indigenous community. Local Indigenous facilitators
are planned to be employed at each of the icon sites to work with their
communities.

Over time these communities will produce ‘Use and Occupancy Maps’
for each icon site. The maps can also be used as a basis for cultural heritage
protection and management, and help monitor the impacts of The Living Murray.
Use and occupancy mapping is sometimes referred to as the ‘geography of
oral tradition’.

The MDBC is working with Charles Sturt University to undertake a research and
monitoring program to measure the impacts and benefits of use and occupancy
mapping at the icon sites.

The MDBC is also closely involved in the development of the world’s
first textbook on use and occupancy mapping, currently being researched and
written in Canada. This involvement will ensure that the textbook will be
relevant to Australia and available for future training needs in the
Murray-Darling Basin.[107]

Text Box 17: Use and Occupancy Map – Yorta
Yorta[108]

Australia’s first set of Use and Occupancy maps were produced in
March 2008. With the support of the Yorta Yorta leadership, interviews were
conducted in Echuca, Shepparton and Melbourne by an experienced Canadian team
and the Manager of the Indigenous Partnerships Project. Utilising the Canadian
team was the preferred way forward as it eliminated potential errors that would
have occurred if a freshly trained and inexperienced Australian team had
undertaken the research design, interviewing and mapping.

As could be expected, Yorta Yorta leaders had to deal with a general
mistrust of government processes, scepticism regarding the ownership of the
process and outcomes and therefore a reluctance to engage in the project.

A key component of overcoming this was to emphasise to the Yorta Yorta
people that Use and Occupancy mapping was a tool for their purposes, either at
the negotiating table or within their own communities. In addition, it was
emphasised that all of the maps and associated intellectual property would
belong to each of the respondents, legally, ethically and morally.

The role of government (that is, MDBC) was limited to facilitation through
the provision of funds, and a commitment to Indigenous people gaining meaningful
and respectful engagement in the management of the Murray-Darling Basin’s
natural resources

A total of 66 members of the Yorta Yorta nation completed map biographies
for the 667 square kilometres of the Barmah-Millewa Forests. They were asked to
map sites for 72 different categories, ranging from places where they had
successfully hunted for kangaroo, fished for Murray Cod, and collected turtle
eggs, to locations where they had camped overnight or repatriated
ancestors’ remains. This resulted in over 6,000 features being mapped.
Without doubt, the respondents enjoyed their time working on their map
biographies. Some individuals commented that they had been waiting for years for
an opportunity to record the land, its animals and the places that were
important in their lives.

This participation and data production was sufficient to reveal a tangible,
impressive snapshot of the Yorta Yorta nation’s contemporaneous connection
to their country.

The map biographies produced from the Yorta Yorta nation’s pilot
mapping project are currently being digitised by Ecotrust Canada in Vancouver,
British Columbia, Canada. The Yorta Yorta leadership felt more comfortable
having their data handled by a distant non-government organisation with much
experience in producing these types of maps.

A positive element of the Use and Occupancy mapping pilot project was that
participation clearly created a common experience which has helped reinforce the
notion of shared values and beliefs among the Yorta Yorta community about land
and water. This strengthened the sense of community within the Yorta Yorta
nation.

The Yorta Yorta nation intends using their thematic maps for a range of
purposes, primarily to help them explain to natural resource managers how they
use their Country and how management actions can provide for and enhance these
on-going activities. It is this use that the MDBC hopes will create a dialogue
at a practical level that will assist icon site managers to better understand
the ways in which land and water is important to Indigenous
people.[109]

 

(e) Indigenous Action Plan
(IAP)
[110]

The Murray-Darling Basin Ministerial Council in 2002 resolved to develop an
Indigenous Action Plan in response to its adoption of the COAG Reconciliation
Commitment. In March 2006, the Murray-Darling Basin Commission endorsed the
Murray-Darling Basin Indigenous Action
Plan.[111] According to Monica
Morgan, a Yorta Yorta woman, this was done without the consent of the Indigenous
Nations concerned.[112]

The IAP seeks to implement the Council of Australian Governments’
(COAG) Reconciliation Framework and integrate its principles into the management
of the Murray-Darling Basin. In particular, the IAP aims to

  • establish a set of principles for the MDBC which guide behaviours and
    influence processes and ensure consistent and practical approaches to
    Indigenous involvement in Natural Resource Management decision making
  • identify actions which are aimed at improving Indigenous engagement in
    natural resource management by the MDBC programs and
    projects.

While the final IAP document contained
some substantive commitments, it was not considered to fully reflect the work
undertaken in the consultative process, and as a result, was rejected by
MLDRIN.[113]

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6 What could be done?

As is evident from the discussion throughout this chapter, there is a
significant amount of work to be done in the Murray-Darling Basin generally.
However for Indigenous peoples this work is urgent and crucial to their physical
and mental well-being.

A first step to improving the current situation for the Indigenous Nations of
the Murray-Darling Basin is to ensure the rights based and process focused
involvement of Indigenous interests rather than marginal inclusion that allows
authorities to tick a box. Indigenous peoples across the country possess
intimate knowledge of their environments. Through the imparting of this
knowledge, not only revitalises and maintains their culture and connection to
their lands and waters, but benefits non-Indigenous Australians as a nation.

Secondly, there is considerable research required within the Murray-Darling,
including:

  • specific research on the impacts of climate change on Indigenous peoples
    within the MDB, particularly in relation to access to the cultural economy.
  • further research on the impacts of climate change and drought on the
    sustainability of the environment, particularly in relation to additional
    pressures on ecosystems including the wetlands and forests from logging,
    agriculture animals seeking refuge, impacts on threatened species and regionally
    significant fauna and flora, including the projection of movement of fauna and
    flora.
  • research that examines world’s best practice with regard to national
    parks and other conservation regimes including the implementation of the Ramsar
    Convention and the Convention on Biological Diversity.

Thirdly, the
full and immediate implementation of Water Reform Plan including appropriate
environmental flows is required. While the legislation currently provides for
the recognition of environmental water, if Governments are serious about Closing
the Gap for Indigenous health, the Authority must also have regard to social,
cultural and Indigenous issues in the Basin Plan. This will require the
inclusion of enforceable cultural water allocations.

If the Government is unwilling to provide for cultural water then
compensation must be provided for the loss of traditional
values.[114]

In addition, in order for the Indigenous peoples of the Murray-Darling Basin
to effectively engage in decision-making that has a direct impact on their
lives, amendments to the Water Act 2007 will be required to provide for
Indigenous representation on relevant Committees, as well as the development of
an Indigenous Committee that provides advice and direction specific to
Indigenous issues.

Text Box 18: Lesson to be Learned

Monica Morgan, Lisa Strelein and Jessica Weir have identified four key
values that can be learned from the situation in the Murray-Darling
Basin.[115]
  1. The opportunity to prioritise shared values

    • Indigenous nations sought to establish relationships of repair and
      restoration
    • Shared vision of a healthy river
  2. Recognition of shared authority
    • Recognition by government of traditional owners and the need to deal
      directly with traditional owners. This is remarkable for MLDRIN in a southern
      state
  3. The potential of open and connected government
    • Where community plays a role
    • Great complexity in this area and potential for governments and agencies to
      reach stalemate
  4. Certainty, process and outcomes.

 

The traditional owners do not have ‘shared interests’ in this
work if it kills life. Without a healthy river country there is no point in
sitting down at a table with government to discuss fishing rights or moving
rocks to repair the fish traps. There is no point going fishing. Without this
activity, land use and occupancy mapping becomes an exercise without
content.[116]

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The Murray-Darling Basin: an ecological and human tragedy

Murray-Darling Basin

Arial View of Mildura – the Murray-Darling Basin, December
2008[117]

Bottle Bend Lagoon Dec 2008

Bottle Bend Lagoon December 2008, Arial
View[118]

Bottle Bend Lagoon in Oct 2001

Bottle Bend Lagoon in October
2001[119]

Bottle Bend Lagoon in May 2007

Bottle Bend Lagoon in May
2007[120]

 

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[1] Murray Lower Darling Rivers
Indigenous Nations, Murray-Darling Basin (Draft),unpublished, as
cited by the Indigenous Peoples Organisation Network (IPO), Environment
– Indigenous Peoples Organisation of Australia Response,
Response to
Agenda Item 4.2 – Environment of the Seventh Session of the United Nations
Permanent Forum, New York, 21 April – 2 May 2008.
[2] Murray-Darling Basin
Commission, The Murray-Darling Basin, Information Sheet. For further
information, see www.mdbc.gov.au.
[3] Murray-Darling Basin Commission, Map of the Murray-Darling Basin. At: http://kids.mdbc.gov.au/__data/page/75/Basin_Map.pdf.
[4] Murray-Darling Basin
Commission, The Murray-Darling Basin, Information Sheet. For further
information see www.mdbc.gov.au.
[5] J Weir, Murray River Country: An ecological dialogue with traditional owners, PhD thesis, Australian National University, October 2007, pp 60-63
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[6] D Eastburn, the River, in The Murray, ed N Mackay and D Eastburn, Murray-Darling Basin Commission,
Canberra 1992, as cited by J Weir, Murray River Country: An ecological
dialogue with traditional owners,
PhD thesis submitted to Australian
National University, October 2007, p
63.
[7] P Sinclair, The Murray:
a River and its People,
Melbourne University Press, 2001, as cited by J
Weir, Murray River Country: An ecological dialogue with traditional owners, PhD thesis submitted to Australian National University, October 2007, p
63.
[8] Productivity Commission, Water Rights Arrangements in Australia and Overseas, Commission Research
Paper, Melbourne, 2003, as cited by J Weir, Murray River Country: An
ecological dialogue with traditional owners,
PhD thesis submitted to
Australian National University, October 2007, p
63.
[9] J McKay, Water, rivers and
ecologically sustainable development, in Fresh Water: New Perspectives on
Water in Australia,
ed, E Potter, S McKenzie, A Mackinnon, J McKay,
Melbourne University Press, 2007, as cited by J Weir, Murray River Country:
An ecological dialogue with traditional owners,
PhD thesis submitted to
Australian National University, October 2007, p
63.
[10] The Senate Standing
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Committee on Rural and Regional Affairs and Transport
, Water management
in the Coorong and Lower Lakes (including consideration of the Emergency Water
(Murray-Darling Basin Rescue) Bill 2008),
October 2008, Commonwealth of
Australia, p 9. At: http://www.aph.gov.au/Senate/committee/rrat_ctte/lowerlakes_coorong/report/report.pdf (viewed 12 January 2009).
[11] CSIRO and Bureau of Meteorology (2007) Climate change in Australia. Online
technical report, CSIRO, 2007. At: http://www.climatechangeinaustralia.gov.au.
As cited by CSIRO, Water Availability in the Murray-Darling Basin- A report
from CSIRO to the Australian Government,
October 2008, p 7. For further
information see www.csiro.au.
[12] Proportion of the State in MDB: NSW- 75%, VIC – 57%, Qld – 15%, SA
– 7%, ACT – 100%, proportion of the MDB in State: NSW – 56%,
VIC – 12%, Qld – 25%, SA – 6.5%, ACT – 0.2%. For further
information see www.mdbc.gov.au.
[13] The Traditional Owner
groups of the Murray-Darling River Basin region identify as Indigenous Nations.
For the purposes of this report, the use of the term ‘Indigenous
Nations’ will be used in the same context as ‘Indigenous
peoples’ and ‘traditional owner
groups’.
[14] Weir, J.
2007. Murray River Country: An Ecological Dialogue with Traditional Owners, PhD
Thesis, The Australian National University, p 161.
[15] M Morgan, L Strelein and J
Weir, ‘Authority, Knowledge and Values: Indigenous Nations Engagement in
the Management of Natural Resources in the Murray-Darling Basin’ in M
Langton, O Mazel, L Palmer, K Shain and M Tehan (eds), Settling with
Indigenous Peoples
: Modern treaty and agreement-making, 2006 The
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[18] M
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Indigenous Nations Engagement in the Management of Natural Resources in the
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(eds), Settling with Indigenous Peoples: Modern treaty and
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[23] The Living Murray
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Agreement on Addressing Water Over-allocation and Achieving Environmental
Objectives in the Murray-Darling Basin on 14 July 2006; and (b) arrangements
referred to in clause 3.9.2 of the Agreement on Murray-Darling Basin
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[33] ‘Without
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management infrastructure and consumptive water use. Catchment characteristics
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projections of future groundwater extraction represent maximum allowable use
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Government,
October 2008, p 5. See www.csiro.au for further
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[84] Farley Consulting Group, Report to the Murray-Darling Basin Commission – Indigenous Response to
the Living Murray Initiative,
Report commissioned by the Murray-Darling
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[85] Farley
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[86] Commonwealth of
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[87] J
Weir, Murray River Country: An ecological dialogue with traditional owners, PhD thesis submitted to Australian National University, October 2007, p
103.
[88] United Nations Economic
and Social Council, Recommendations on the special theme, ‘Climate
Change, biocultural diversity and livelihood: the stewardship role of indigenous
peoples and new challenges’,
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[89] For further
discussion about the international human rights, Indigenous peoples and climate
change, see Chapters 5 and 6 of this
report.
[90] M Morgan, L
Strelein, J Weir, Indigenous Rights to Water in the Murray-Darling Basin
– in support of the Indigenous final report to the Living Murray
Initiative,
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[91] J Weir,
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[92]Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] 1606 (18 December 1998) - Federal Court
Decision
[93] M Morgan, L
Strelein and J Weir, ‘Authority, Knowledge and Values: Indigenous Nations
Engagement in the Management of Natural Resources in the Murray-Darling
Basin’ in M Langton, O Mazel, L Palmer, K Shain and M Tehan (eds), Settling with Indigenous Peoples: Modern treaty and
agreement-making,
2006 The Federation Press, Sydney. See also J Weir and S
Ross, “Beyond Native Title: Murray Lower Darling Rivers Indigenous
Nations”, 2007 in F Morphy and B R Smith (eds), The Social Effects of Native
Title: Recognition, Translation, Coexistence
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[94] Murray
Lower Darling Rivers Indigenous Nations, Correspondence with T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, 22 October
2008.
[95] N Ward (Murray-Darling
Basin Commission), Effective Indigenous Involvement In The Living Murray -
Introducing A New Methodology,
Murray-Darling Basin Commission
Canberra,
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[96] Murray-Darling Basin Commission, Murray-Darling Basin Commission –
April 2006
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[97] Agreements, Treaties and Negotiated Settlements Project, Memorandum of
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Murray-Darling Basin Commission,
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[98] Murray-Darling Basin Commission, Murray-Darling Basin Commission –
April 2006
, E-letter No 53. At: http://mdbc.gov.au/communications/s-scribe/eLetter_menu/e-letter_april_2006#Indigenous (viewed 12 January 2009).
[99] Murray-Darling Basin Commission, Murray-Darling Basin Commission –
April 2006
, E-letter No 53. At: http://mdbc.gov.au/communications/s-scribe/eLetter_menu/e-letter_april_2006#Indigenous (viewed 12 January 2009).
[100] Agreements, Treaties and Negotiated Settlements Project, Memorandum of
Understanding between Murray Lower Darling Rivers Indigenous Nations and
Murray-Darling Basin Commission,
Information Sheet.. At: http://www.atns.net.au/agreement.asp?EntityID=3661 (viewed 12 January 2009).
[101] Cooperation Agreement between MLDRIN and eNGO’s, 23 February
2007.
[102] The eNGO’s
included: the Australian Conservation Foundation Inc, Environment Victoria Inc,
Friends fo the Earth Australia Inc, Friends of the Earth Melbourne Inc, National
Parks Association of New South Wales Inc, Nature Conservation Council of New
South Wales Inc, Victorian National Parks Association Inc, The Wilderness
Society Inc, The Wilderness Society Victoria Inc, The Wilderness Society Sydney
Inc, The Wilderness Society (South Australia Branch)
Inc.
[103] Cooperation
Agreement between MLDRIN and eNGO’s, 23 February 2007, p
2.
[104] Cooperation Agreement
between MLDRIN and eNGO’s, 23 February 2007, p
4.
[105] Cooperation Agreement
between MLDRIN and eNGO’s, 23 February 2007, pp
3-6.
[106] Murray-Darling Basin
Commission, Indigenous Partnership. At: http://www.mdbc.gov.au/subs/annual_reports/AR_2006-07/part1_1.htm,
and The Living Murray, Indigenous Partnerhips, at: http://www.thelivingmurray.mdbc.gov.au/communities (both viewed 1 October
2008).
[107] Murray-Darling
Basin Commission, Indigenous Partnership. At: http://www.mdbc.gov.au/subs/annual_reports/AR_2006-07/part1_1.htm,
and The Living Murray, Indigenous Partnerships, at: http://www.thelivingmurray.mdbc.gov.au/communities (both viewed 1 October
2008).
[108] N Ward
(Murray-Darling Basin Commission), Effective Indigenous Involvement In The
Living Murray - Introducing A New Methodology,
Murray-Darling Basin
Commission
Canberra, ACT, Australia. At: http://riversymposium.com/index.php?element=WARD (viewed 12 January
2009).
[109] N Ward
(Murray-Darling Basin Commission), Effective Indigenous Involvement In The
Living Murray - Introducing A New Methodology,
Murray-Darling Basin
Commission
Canberra, ACT, Australia . At: http://riversymposium.com/index.php?element=WARD (viewed 12 January 2009).
[110] Murray-Darling Basin Commission, Natural Resource Management. At: http://www.mdbc.gov.au/nrm/basin_communities/indigenous_communities (viewed 12 January 2009).
[111] Murray-Darling Basin Commission, Community Advisory Committee Annual Report
2005–06,
Murray-Darling Basin Commission 2006. At: http://www.mdbc.gov.au/subs/annual_reports/AR_2005-06/cac3.htm#indigenous (viewed 12 January 2009).
[112] M Morgan, Keeping the
Status Quo, MDB Indigenous In-action Plan
, Yorta Yorta Nation Aboriginal
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[113] M Morgan, L Strelein and J Weir, ‘Authority, Knowledge and Values:
Indigenous Nations Engagement in the Management of Natural Resources in the
Murray-Darling Basin’ in M Langton, O Mazel, L Palmer, K Shain and M Tehan
(eds), Settling with Indigenous Peoples: Modern treaty and
agreement-making,
2006 The Federation Press, Sydney.
[114] Farley Consulting
Group, Report to the Murray-Darling Basin Commission – Indigenous
Response to the Living Murray Initiative,
Report commissioned by the
Murray-Darling Basin Commission to report to the Ministerial Council on
community engagement, April 2003, p
7.
[115] M Morgan, L Strelein
and J Weir, ‘Authority, Knowledge and Values: Indigenous Nations
Engagement in the Management of Natural Resources in the Murray-Darling
Basin’ in M Langton, O Mazel, L Palmer, K Shain and M Tehan (eds), Settling with Indigenous Peoples: Modern treaty and
agreement-making,
2006 The Federation Press,
Sydney.
[116] J Weir, Murray
River Country: An ecological dialogue with traditional owners,
PhD thesis,
Australian National University, October 2007, p
238.
[117] Photograph taken by Katie
Kiss.
[118] Photograph taken by
Katie Kiss.
[119] Photograph provided courtesy of NSW
Murray Wetlands Working Group.
[120] Photograph provided courtesy of NSW
Murray Wetlands Working Group.