‘Aqua nullius was a myth too’: Yoorrook puts claim on share of water billions

The management of water resources would be reshaped to enshrine Victorian traditional owners as rights holders, entitled to income and powers over use, under a proposal from the state’s truth-telling inquiry.

The Yoorrook Justice Commission  published its final reports on Tuesday, proposing a rethink of the state’s multibillion-dollar water system and arguing First Peoples are too far removed from a resource that is fundamental to their culture.

Tati Tati and Wadi Wadi man Brendan Kennedy on Belsar Island, near Robinvale.Credit: Jason South

While Indigenous land rights have loomed in the public consciousness since the 1992 Mabo decision, water is described by Yoorrook as the lifeblood of Country.

“That sovereignty was never ceded means that ‘all water is Aboriginal water’ and the Crown should not have ‘sole authority’ in managing water,” the commission wrote. “Yoorrook calls for First Peoples’ fundamental and inherent rights to water to be recognised.”

The commission found that minimal water ownership had been returned to First Peoples, and where the state had promised to do so, the volumes transferred had been negligible and not provided fast enough.

It was found Victoria had not shared with traditional owners any of the $83 billion in water-related revenue that the state reaped between 2010 and 2023, across its corporations and entities.

“Although the state has set up ad hoc arrangements to fund First Peoples water programs, the state does not share the substantial wealth that it has obtained from the market-based water system,” the commission found.

“Traditional owners continue to be locked out of the economic benefits of Victoria’s water allocation framework.”

Yoorrook urged that the state provide a share of its water income to a self-determination fund for traditional owners. The amount should be agreed through negotiations with owners groups and the First Peoples’ Assembly in Victoria, it said.

It also said the government should exempt traditional owners from water-related taxes, rates and charges and, in doing so, recognise them as rights holders rather than users.

Aboriginal Victorians were urged to play a key role in how the system is run, including as water managers and through the allocation or purchase of water for their use.

Yoorrook recommended that Victoria implement a “cultural flows” model in which First Peoples can use water as “as they see fit, and to improve the conditions of their life as well as to care for country”.

Commissioners disputed claims that Victoria’s systems are “fully allocated”, and cited examples that could be provided to traditional owners, such as 75 gigalitres of water entitlement in Victoria shared between three Melbourne water corporations and traded on the market to irrigators.

Echoing the discredited terra nullius argument once used to justify the taking of land during the colonial period, Yoorrook’s final reports say dispossession began with the “fiction of aqua nullius”.

This was worsened by separate water and land rights, and continued through the current market in which water is bought and sold.

Uncle Brendan Kennedy, a Wadi Wadi and Tati Tati traditional owner, told the inquiry that water was essential to cultural landscapes for Indigenous people.

“[We] have ancestral beings in the landscape, in the shape of our ancestral beings and … areas are part of the living body … the rivers are the arteries and the creeks are the veins, and the lagoons
and wetlands are all the organs,” he said.

“So by denying its blood, its lifeblood, water, to those places, is killing Country and then that kills us.”

Sharing revenue with traditional owners would create a new challenge for water corporations that are already using surplus cash to pay off part of the state’s debt through dividends and an accounting manoeuvre known as “capital repatriation”.

The Age revealed in November that water corporations have paid more than $650 million to the state through the repatriation process.

On Wednesday, Premier Jacinta Allan said the government would take time to consider Yoorrook’s recommendations, acknowledging that they and the findings of historical injustices were incredibly challenging.

“That’s why it’s been established to be part of that pathway to treaty because what we want to do is get better outcomes,” she said.

“We’ve been on this journey for a decade.”

The Victorian Aboriginal Legal Service said on Wednesday that Yoorrook’s report was a historic moment, but criticised the state government for failing to collaborate fully and for undermining its intentions with tough bail conditions for children.

“The truth has been told, and now the government has an obligation to act,” chief executive Nerita Waight said.

“The significance of this report cannot be overlooked. Premier Jacinta Allan has the opportunity to leave a legacy of unity and cohesion, walking alongside Aboriginal communities towards self-determination.”

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