Indigenous rights and river rights: Australia and New Zealand

Jun 07, 2018

Dr. Katie O’Bryan, Monash University, Australia

This is an article from “Are rivers legally people?”, a series run in conjunction with the
International Water Law Project discussing legal rights for rivers. GWF and the IWLP are
hoping to create a space for lively discussion assessing the merits and value of such
recognition, as well as possible implications. If you want to contribute, we encourage you to
head over to the IWLP Blog to share your thoughts. You can find the other articles in the
series here: Article one; Article two; Article three; Article Four; Article Five.

Historically, the state of Victoria’s water laws have not recognised Aboriginal people as
having a role in managing and protecting Australia’s waterways. That has now changed with
the enactment of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic). This
Act is significant because not only does it recognise a role for Aboriginal people in the
management and protection of the Yarra, it is also said to give an independent voice to the
river.

The independent voice of the river and international developments

The idea of nature being given an independent voice has come to prominence recently, the
most well-known example being the granting of legal personhood to the Whanganui River, Te
Awa Tupua, with an entity called Te Pou Tupua to be the human face of the river and to
represent its interests.

Giving legal personhood to a natural object with a guardian to protect its interests is an idea
that has existed in theory since 1972 when Christopher Stone wrote his famous article
‘Should Trees Have Standing? ‒ Toward Legal Rights for Natural Objects’. Stone’s idea has
been gaining momentum over the last few years, including several recent court rulings which
have recognised the rights of rivers, namely the Atrato River in Columbia, and the Ganges
and Yamuna Rivers in India. However, with the Te Awa Tupua (Whanganui River Claims
Settlement) Act 2017 (NZ), Aotearoa New Zealand was the first country to enact legislation

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giving legal personhood and an independent voice to a river.

But how similar are the Victorian and New Zealand Acts, and what do they mean for the role
of Indigenous people in river management?

Key features of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017
Before outlining the Act’s key features, it is important to note that the Wurundjeri people, the
traditional owners of much of the country through which the Yarra River flows, were involved
in the development of the proposal for the Act. And, in a first for Victoria, Wurundjeri elders
were present and spoke in support of the bill when it was introduced into Parliament.

Against that backdrop, the features of relevance for Aboriginal Victorians in the Yarra River
Protection (Wilip-gin Birrarung murron) Act are outlined as follows.

The first is that the Act treats the Yarra River as one living and integrated natural entity. This
holistic approach to the protection of the Yarra reflects Aboriginal conceptions of the Yarra;
the Act’s preamble noting that the river is alive, has a heart and a spirit, and is part of their
Dreaming. This is also evident from the Aboriginal language used in the title, ‘Wilip-gin
Birrarung murron’, which means ‘keep the Birrarung [Yarra] alive’ in Woi-wurrung, the
language of the Wurundjeri.

Second, to reflect the Yarra as a single entity, the Act provides for the development and
implementation of an overarching strategic plan to guide the future use and development of
the Yarra. The strategic plan will be developed by a lead agency appointed by the Minister
(Melbourne Water) and will be informed by a long-term (50 year) community vision. Both the
strategic plan and community vision require active public participation in their development.

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The Yarra River, Victoria, Australia. Image supplied by author.

The strategic plan will also be informed by the Yarra protection principles. These principles
include general, environmental, social, cultural, recreational and management principles.
Statutory decision-makers along the Yarra must have regard to these principles when
performing their functions or exercising their powers in relation to the Yarra. Importantly, the
cultural principles highlight Aboriginal cultural values, heritage and knowledge, and the
importance of involving traditional owners in policy planning and decision-making.

The Act also establishes the Birrarung Council, the ‘independent voice for the river’. The
Council comprises 12 community and skill-based members, two of whom must be chosen by
Wurundjeri people. This is the first time in Victoria that Aboriginal people have been given a
legislatively mandated voice in river management. Significantly, the Council is precluded
from having any government representatives as members.

The Council has two main roles. The first is to provide advice to the Minister generally on the

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administration of the Act, and more particularly on the protection of the Yarra and on the
strategic plan.

Its second role is to advocate for the protection and preservation of the Yarra. This role, along
with the prohibition on government representatives on the Council, forms the basis for it
being described as the independent voice of the river.

Comparing the Yarra River Protection Act 2017 and the Te Awa Tupua Act 2017
So how does the New Zealand legislation differ from the Victorian legislation given that both
are said to give an independent voice to the river, and both emphasise Indigenous
relationships with the river?

A major difference lies in the status of the river itself. Although the Yarra River Protection Act
provides for the declaration of the Yarra for the purpose of protecting it as one living and
integrated natural entity, it does not give the Yarra independent legal status with all of the
rights and liabilities that come with that status. Accordingly, the Birrarung Council, although
able to advocate on behalf of the Yarra, is not its legal guardian. It is not given any legislative
power to exercise the rights, or take responsibility for any liabilities, of the Yarra River.

It is essentially an advisory body only. The Te Awa Tupua Act, on the other hand, specifically
provides for the Whanganui River to have ‘all the rights, powers, duties, and liabilities of a
legal person,’ which are exercised on behalf of the river by Te Pou Tupua, the human face of
the Whanganui River. This means that unlike the Birrarung Council, Te Pou Tupua, can initiate
legal proceedings to protect the Whanganui River if the River is damaged or if any of its
values are compromised.

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The Whanganui River, New Zealand. Image supplied by author.

That leads to another distinction between the Yarra River Protection Act and the Te Awa
Tupua Act. Both statutes recognise the river as single living and integrated natural entity
requiring protection. However, the river values to be protected in the Te Awa Tupua Act
(called Tupua te Kawa) are intrinsically Māori oriented in their conceptions of the River.

On the other hand, the river values to be protected in the Yarra River Protection Act, as
reflected in the Yarra protection principles, are more wide-ranging, encompassing not just
Aboriginal cultural values, but also post-settlement cultural diversity and heritage, as well as
the values embodied in the environmental, social, recreational, management and general
protection principles.

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Finally, the Birrarung Council was established to ensure that various different community
interests are involved in protecting and promoting the Yarra River, hence the need for it to
have 12 members. Te Pou Tupua, with only two members (one appointed by the government
and one by iwi (referring to the Māori tribes) with interests in the Whanganui River), was
established to represent the Whanganui River, not community interests – that role is given to
a different entity, Te Kōpuka, which has 17 members including up to six Māori members.

What are the outcomes for Indigenous river management?

The granting of independent legal status to the Whanganui River as part of the Treaty
settlement in the Te Awa Tupua Act does not give the Whanganui Iwi a direct say in the
management of the Whanganui River, because the members of Te Pou Tupua act on behalf of
the River, not on behalf of their respective appointees. In that regard, it is not necessarily of
benefit to the Māori. However, this is tempered by the fact that the river values to be upheld
by Te Pou Tupua are intrinsically Māori in orientation, and that other aspects of the
settlement, such as Te Kōpuka, and the role of the Whanganui Iwi’s post-settlement
governance entity, do provide for Māori participation in the river’s management.

The Yarra River Protection Act does not extend as far as the Te Awa Tupua Act in giving
independent legal status to the Yarra. Nor does it create legal capacity in the Birrarung
Council to seek redress in court for any damage done to the Yarra for failing to comply with
the Yarra protection principles. It does, however, give an advisory voice to Aboriginal
Victorians in the management of the Yarra. Although the strength of that voice has yet to be
tested, it does signal a shift in the future of river management in Victoria towards one which
is more inclusive of Aboriginal people.

Further reading:

Katie O’Bryan, ‘Giving a Voice to the River and the Role of Indigenous People: The
Whanganui River Settlement and River Management in Victoria’ (2017) 20 Australian

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Indigenous Law Review (advance)

Katie O’Bryan ‘New law finally gives voice to the Yarra River’s traditional owners’ The
Conversation, 25 September 2017

Katie O’Bryan joined the Law Faculty at Monash University in 2015, having taught at Monash
since 2012. Prior to entering academia, she practised as a solicitor in native title, acting for
native title claim groups in both Western Australia and Victoria. She holds a Master of Laws in
Environmental Law from Macquarie University and a PhD from Monash focussing on the legal
recognition of Indigenous water rights. Katie’s teaching and research interests include
Constitutional Law, Administrative Law, Indigenous Legal Rights, Native Title and Water Law.

The views expressed in this article belong to the individual authors and do not represent the
views of the Global Water Forum, the UNESCO Chair in Water Economics and Transboundary
Water Governance, UNESCO, the Australian National University, Oxford University, or any of
the institutions to which the authors are associated. Please see the Global Water Forum
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