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First Nations legal challenge launched against Commonwealth over Murray-Darling consultation failures

Giovanni Torre -

A confederation of more than 20 Murray-Darling Basin First Nations has launched a legal challenge against Federal Environment and Water Minister Tanya Plibersek's approval of a Water Resource Plan last year.

The NSW Fractured Rock Water Resource Plan (WRP) covers management and use of significant parts of the state's groundwater. As part of the Murray-Darling Basin Plan, the environment minister accredited the WRP in November 2022.

The accreditation was given on the request of the NSW Government and the recommendation of the Murray-Darling Basin Authority. However, Murray Lower Darling Rivers Indigenous Nations (MLDRIN) say the affected Nations were not properly consulted, including about their social, cultural and spiritual values of the water resources.

MLDRIN will argue in Federal Court that the water resource plan does not comply with the law, and will ask the court to rule that the minister's accreditation of the plan is legally invalid.

If successful, MLDRIN will call on NSW authorities to undertake proper consultation with Basin Nations to ensure all the state's water resource plans meet Basin Plan requirements.

Separate to the legal challenge, MLDRIN is also seeking significant amendments to the Restoring Our Rivers Bill currently before Federal Parliament, including changes to the Water Act to enable recognition of First Nations water rights and interests; procedural justice and decision-making rights; and substantive rights for water access and ownership.

MLDRIN Chair and Ngarrindjeri citizen Grant Rigney said the Nations involved "have been backed into a corner".

"We have repeatedly raised our reasonable concerns with Minister Plibersek, and in MLDRIN's assessment, we have been entirely disregarded," he said on Thursday.

"We also want to see wholesale reform of the consultation process and vastly improved provisions for First Nations water rights in the Water Act and Basin Plan, including through the Restoring Our Rivers Bill that's currently before parliament. We've made 19 recommendations to the parliamentary inquiry that set out what needs to be done.

"We cannot wait for legislative reform. This is urgent. So, we're taking this legal action now to ensure the law as it stands is upheld and our rights are respected."

MLDRIN Deputy Chair, and Tati Tati Millu Wudungi (Murray River man), Brendan Kennedy said: "Our culture has survived for millennia. The Murray-Darling isn't just a river system, it's our life blood, the source of our cultural economies, as well as an ancestral being."

"The result of 240 years of mismanagement and water dispossession is the ongoing suffering of our people. We have no other option but to take legal action. Water is life for us, without it the injustice against our people continues," he said.

"We hope not just to win this case, but to set a precedent that ensures that all Murray-Darling Basin Water Resource Plans must be properly undertaken according to fair and reasonable standards of consultation. Such consultation with Basin Traditional Owners about the management of water resources is an inherent right."

Environmental Defenders Office Special Counsel Emily Long said the challenge is a significant case.

"First Nations have been seeking water justice in the Basin and getting nowhere. The Water Act contains only the barest of consultation requirements for First Nations and in this case MLDRIN argues that even those were not met. This is despite MLDRIN gathering detailed and constructive feedback directly from Traditional Owners for the Murray-Darling Basin Authority and the commonwealth water minister," she said.

"Water Resource Plans need to be prepared properly. The Basin Plan establishes one requirement for consultation with Traditional Owners on Water Resource Plans and that is in the drafting process. This must be done properly to give First Nations a meaningful opportunity to contribute to water resource management and to care for their Country.

"On behalf of MLDRIN, we will ask the Federal Court to find that the minister's decision to approve the plan, and the Murray-Darling Basin Authority's decision to recommend approval, were invalid."

Advocates noted that the NSW Fractured Rock Water Resource Plan is one of the plans that is crucial to the implementation of the Murray-Darling Basin Plan, and only seven of the required 22 NSW Water Resource Plans are in operation, despite an original deadline of June 2019.

The advocates also noted that the federal government has made explicit election commitments to "Increasing First Nations ownership of water entitlements and participation in decision making".

The Federal Restoring Our Rivers Bill is currently before parliament and subject to a parliamentary inquiry. MLDRIN said the draft bill includes "no substantive measures to improve outcomes for First Nations" and fails to deliver on a key part of the government's Five-Point Plan for the Murray-Darling Basin.

MLDRIN has made submissions to the parliamentary inquiry for the bill with 19 recommendations. MLDRIN's submission calls for provisions in the Bill to ensure water recovered under the Water for the Environment Special Account (WESA) can provide for improved Basin First Nations water access, ownership, and management. The submission also details optimal reforms to the Water Act to recognise Basin First Nations' procedural and substantive rights relating to Basin water resources and calls for additional policy, programming and resourcing commitments.

A spokesperson for the federal Department of Climate Change, Energy, the Environment and Water told National Indigenous Times the department understands that the Murray Lower Darling Rivers Indigenous Nations has filed and served an application for judicial review in the Federal Court in relation to the accreditation of the NSW Fractured Rock Water Resource Plan.

"The Commonwealth, the Murray Darling Basin Authority and the State of New South Wales are named as respondents. As this matter is before the Federal Court, it would not be appropriate to comment further," they said.

National Indigenous Times has contacted the NSW government for comment.


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