Chapter Five: Application of equitable utilization and minimisation principles at the federal level
5.10 Australian example: missing natural and social solution
As discussed in the above sections, the MDB has a solid instrumental and institutional foundation. However, why the institution and legislation did not lead to sustainability is questionable. According to some scholars, the main issues were missing actions in the MDB. For them, there is strong legal support for managing the basin, but the MDBA did not implement them properly.768 There is a compliance gap because the Water Act was not properly implemented, and its objectives have not been achieved. According to other scholars, the main factor for not achieving the Water Act’s objectives is that the Act was enacted in a crisis when Australia was in a deep and long drought. In addition, the Australian government and the policy-makers attempted to solve all of the problems through the water market.769
These are significant points, but they do not clarify the broad picture comprehensively.
The main problem of managing the MDB is the omission of natural and social solutions which are critical for the sustainability of the basin. The mass killing of fish, water theft and construction of dams without public transparency by the private sector demonstrates how the MDBA and policymakers in the basin prioritize economic aspects of water and economic solutions rather than natural (environmental) and social solutions. The MDBA should prioritize the environmental objectives of the Water Act and take a more democratic and comprehensive approach by involving all relevant stakeholders, including Aboriginals Australian groups.770
Moreover, the future reforms of the Water Act should empower the traditional owners of the MDB and provide comprehensive social solutions. The Act's current provisions do not support indigenous involvement or adopt their values in water management. The
768 See Williams and Grafton, above n 653.
769 See Garrick and O’Donnell, above n 738.
770 Grafton and others, above n 645, at 20.
Act requires the MDBA to establish the Basin Community Advice with a membership of “at least 2 Indigenous persons with expertise in Indigenous matters relevant to the Basin’s water resources.”771 But having only two indigenous members out of seventeen indicates that there is not a strong interest in the involvement of indigenous people in water management.772 It also shows that the Water Act did not succeed in taking an integrated and comprehensive approach to involve the traditional owners of the MDB and adapting their values and customs in water management. Thus, there is no equitable participation of indigenous people in water management in the instruments and institutions for the MDB.
The MDBA also failed to adopt environmental solutions and NBS in improving the ecological status of the MDB. The MDB is home to thousands of wetlands with significant biodiversity and ecological values, but only sixteen are recognized in the Ramsar list.773 The Commonwealth took advantage of being a member of the Ramsar Convention to transfer the basin’s management power from states to a federal institution, but it has done little to protect the Ramsar sites. Improving wetlands and Ramsar sites under the basin plan is one of the Act’s objectives for meeting international obligations. Thus, the Water Act should confirm protecting the wetlands in the MDB according to the requirements of the Ramsar Convention.774 However, recent analysis shows that the Commonwealth and state laws, regulations, and policies do not support the sustainability of the MDB Ramsar sites. As well as the low ecological status of many sites, the lack of cooperation and transparency among basin states remains a major challenge for the sustainability of these sites.775
Therefore, the focus of the reforms in the basin should be transformed from the water market and economic solutions toward natural and social solutions. The comprehensive participation of traditional owners in the basin and recognising their sovereignty over the water resources is crucial to achieving social and environmental outcomes of water management in the basin. Instead of allocating funds for large corporations to construct
771 Water Act 2007 Act No. 137 of 2007 as amended at s 202(5)(c).
772 Katie O’Bryan Indigenous rights and water resource management: Not just another stakeholder (Routledge, 2018) at 93.
773 Authority, above n 646, at 5.
774 Water Act 2007 Act No. 137 of 2007 as amended S 21(3).
775 See Erin Kirsch, Matthew J Colloff and Jamie Pittock “Lacking character? A policy analysis of environmental watering of Ramsar wetlands in the Murray–Darling Basin, Australia” (2021) Marine and Freshwater Research.
dams that lack EIA, the MDBA should invest in NBS and improve the ecological status of natural wetlands. This is an optimal solution for reserving water for the environment, meeting international obligations and the sustainable and integrated management of the basin.
The MDBA and the Commonwealth have the opportunity to take advantage of the state of Victoria’s experience in water management by prioritising environmental goals. The Victorian Environmental Water Holder (VEWH) is an independent statutory body established by the state of Victoria in 2010. The VEWH works to ensure sufficient water for the environment (environmental water) by maintaining water quality and quantity in the rivers, wetlands and reservoirs.776 This is an effective method in applying NBS because environmental water has a crucial role, particularly in the dry seasons. For achieving these objectives, the VEWH has the power to take measures and decisions about water management in the state without political interference.777
As the VEWH is a corporate body, it has the legal right to speak on behalf of the Victorian rivers and allocate environmental water when and where required. However, the rivers in Victoria do not enjoy legal personality like the Whanganui River in New Zealand.778 In 2017, the Victorian Parliament passed the Yarra River Protection (Wilip- gin Birrarung murron) Act 2017. The Act was a significant step to recognise the traditional owners' water rights in the state of Victoria. One of the main aims of the Act was to protect the Yarra River as “one living and integrated natural entity.”779 This is a clear reflection and recognition of the cultural importance of the river to Aboriginal peoples in Victoria. The strategic plan for the river is also more comprehensive than the MDB plan, because the plan covers “biodiversity, amenity, and cultural values”
which are not addressed properly in the MDB.780
Therefore, the Commonwealth and the MDBA can take lessons from the experience of
776 VEWH “About the Victorian Environmental Water Holder” (2021) <https://www.vewh.vic.gov.au/about- vewh>.
777 ERIN O'DONNELL “Institutional reform in environmental water management: the new Victorian environmental water holder” (2011) 2(181) Environmental Law at 73–84.
778 Erin O’Donnell and Elizabeth Macpherson “Voice, power and legitimacy: the role of the legal person in river management in New Zealand, Chile and Australia” (2019) 23(1) Australasian Journal of Water Resources at 38.
779 Yarra River Protection (Wilip-Gin Birrarung Murron) Act 2017 s 1(a).
780 Rebecca Nelson “Challenges to improved integrated management of the Murray–Darling Basin” in Murray- Darling Basin, Australia (Elsevier, 2021) 339-361.
the state of Victoria in responding to water issues via natural and social solutions.
Australia can also follow its neighbour New Zealand in the possibility of granting legal personality to the rivers which have significant value for Aboriginals in Australia.
Granting legal personality to rivers can contribute to achieving social, cultural and environmental objectives of water management. It is also an important tool for promoting IEL principles from the bottom and the broad participation of indigenous people in water management and decision-making. The next chapter discusses these issues further when addressing the case of the Waikato River in New Zealand.