Overturning aqua nullius – more than symbolism

Dr Virginia Marshall in front of a colourful blue, brown and yellow Indigenous artwork.

Dr Virginia Marshall, first Indigenous woman to gain a PhD in law from Macquarie University and principal solicitor at Triple BL Legal, reflects on her first book, Overturning Aqua Nullius (Aboriginal Studies Press, 2017). Dr Marshall was a keynote speaker at the 2016 CASS Colonial Formations conference.

Here I was in Townsville, Queensland, presenting a session on the findings of my doctoral thesis for the National Native Title Conference and passionately explaining to the packed venue why Australia hasn’t embraced the High Court Mabo decision in securing Aboriginal water rights. Indigenous peoples sitting in front of me were nodding and agreed at various intervals that our water rights have been swept away by colonial governments, federalism and the national water reforms.

Last month I had the great pleasure of meeting Bryan Keon-Cohen at the National Native Conference – he appeared as junior Counsel in the Mabo cases. Bryan’s doctoral thesis is very readable and is his memoir of his involvement in this landmark journey.

Some Australians believe that Indigenous Australians need to move on from cultural traditions, laws and practices. We are often told (in the media and on the street) that fully participating in western culture – such as buying a house, living urban and adopting the ‘dominant culture’ – is the solution to chronic Indigenous disadvantage. If this were true why are thousands of Australians disillusioned, depressed and desiring alternative pathways to inner peace and contentment?

Overturning Aqua Nullius: Securing Aboriginal Water Rights, my first book, was published by Aboriginal Studies Press in February 2017 and formed part of my thesis, which won the national prize for the best thesis by an Indigenous author, the W.E.H. Stanner Award.

The preface of the book is written by the Hon. Michael Kirby, former High Court judge, and to my mind, one of Australia’s national treasures. Mr Kirby wrote, ‘Just as the Australian Law Reform Commission report of 1986 (ALRC Report 31) may have expedited the arrival of land rights for Indigenous peoples, so I believe Dr Marshall’s book will influence the future of water rights as they affect Aboriginal and other Indigenous peoples of Australia’.

Professor Mick Dodson, former Aboriginal and Torres Strait Islander Commissioner and AIATSIS Chair recognised the thesis ‘as being a standout in terms of its interest area and scholarship, well-written, well-argued, with an audience beyond the very immediate and brought a whole new dimension to water rights in the legal frame’.

Australia’s next challenge is to embrace the importance of First Peoples rights to water.

It is widely known that the Mabo (No 2) v Queensland decision (by the majority of the High Court) found that the events of 1788 (the invasion of Indigenous lands and waters – or ‘settlement’) did not extinguish Indigenous peoples’ rights to land, water and (some) resources. The High Court in Mabo (No 2) stated that, ‘under the international principles of law it would be repugnant accept the doctrine of terra nullius and inconsistent with historical reality’. The day-to-day reality for Indigenous peoples of Australia on the issue of freshwater access, use, management and ownership across this ‘mega diverse hot spot‘ is a disgrace, and based on the evidence.

As a matter of recorded history in Australia, Aboriginal peoples and other water users have competed for water use and access. Drought conditions have existed for generations. The creation stories of water and relationships of Aboriginal peoples to Country are underpinned by laws. Aboriginal languages are the conduit for layers of water knowledge, values, beliefs and Aboriginal norms attached to water management. Overturning Aqua Nullius conceptualises the breadth of Aboriginal relationships with the Aboriginal environment (Australia) as a ‘web of interests’ in order to express the interconnection which underpins the communal and individual obligation to care for Country.

For far too long Aboriginal communities were told by settlers, governments and the courts that terra nullius framed every aspect of the Australian way of life. Mabo and the original Native Title Act of 1993 reset the clock. However the federal government’s ‘Ten Point Plan‘ in 1998 legislated (among other things) a narrower application of native title that severely reduced Aboriginal claims for water rights (Future Act regimes) and snubbed the High Court decision of Wik (1996) by validating pastoral leases (which included water rights for Aboriginal peoples).

Native title legislation must submit to all other rights and interests: mining & exploration, the development of northern Australia (the common law prevails over native title). How ironic this was when Aboriginal peoples and Australian society were legislated to a decade of reconciliation. Dismantling the Aboriginal and Torres Strait Islander Commission, the government’s mainstreaming of Aboriginal departments and the introduction of the national water reform blueprint to separate water from the land (in 2004 Indigenous peoples were included in the National Water Initiative with three Indigenous clauses, one general clause and two in relation to native title, to cover the hundreds of generations of Indigenous water laws and property rights).

Overturning Aqua Nullius is a paradigm shift to the current status quo in Australia’s water management and ownership. From my doctoral research recommendations for law reform are proposed to address the injustice for Indigenous water rights and interests in Australia. The eleven chapters analyse such issues as cultural identity in water and cultural authority, Aboriginal property concepts and western values, the centrality of health, wealth creation through water ownership, Aboriginal ontology and property relationships, Australia’s water policy, the Murray-Darling Basin and Aboriginal water issues, the economic values of water and self-determination, the federal, state & territory responses to Aboriginal water needs and argument to incorporate human rights and ethical principles within Australia’s national water framework. I will be presenting on my findings at the 20th International River Symposium in Brisbane next month.

When I enrolled in the PhD research program at Macquarie University I had no idea of the challenges and resilience involved. I was elated in being awarded the Law Scholarship and thought it was achievable to work, care for family, read and write my chapters and everything in between. The kids remind me when we had the lounge room and other parts of the house with reports, papers and the like spread over floors and shelves. Deep down I knew this research was important to secure Aboriginal water rights, and gaining water rights for Aboriginal peoples is linked to health and wellbeing. The future prosperity of Indigenous peoples in Australia is not as a stakeholder but as First Peoples, where our water rights should be formally expressed in Australia’s Constitution and Treaty.

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