“If you came here to this spot when the fish kill was on, all you’d be smelling was stink.”
Barkandji elder William ‘Badger’ Bates is standing on the edge of the Darling River outside Menindee in New South Wales where, two years ago, more than a million fish washed up dead.
The images of Murray cod gasping for air on the riverbank put a national spotlight on the water crisis in far western New South Wales.
But it also highlighted an important, yet under-reported, flaw in the Murray-Darling Basin Plan: its failure to recognise the rights of Indigenous people in water management.
The Barkandji people felt the impact of the fish kills deeper than most.
“I always say I had three mothers – my mum, my grandmother and the Darling-Barka… because it fed me, it looked after me,” said Badger Bates.
“We love the Barka and it’s our job to protect it.”
Uncle Badger, as he is more commonly known, had long warned of such a disaster. Months earlier, he made a submission to the South Australian royal commission into the Murray-Darling Basin Plan.
“With no floods, no floodplain water, and pumping town water from the aquifer when the river is dry, we will end up with nothing to drink at all, and our fish, mussels, birds and everything will be gone,” he wrote.
Despite this, no Barkandji people were included on the independent panel that examined the cause of the fish kills, which found the disaster was a result of high temperatures and prolonged drought, exacerbated by water extraction upstream.
For the Barkandji, whose name means “people belonging to the Barka”, it was yet another instance where they were forced to watch from the sideline as their country suffered.
In 2015, the group’s connection to land and water was recognised in the state’s largest native title determination, which gave the Barkandji the right to use water for cultural, but not commercial, purposes.
But Uncle Badger says it didn’t give them the key thing they were fighting for: a meaningful voice in how the river system is managed.
“I never ever thought that when we got our native title through that we’d be still going through misery,” he said.
NSW Water Minister Melinda Pavey referred questions from 7.30 to the Department of Planning, Industry and Environment.
A spokesperson for the department said it was negotiating an Indigenous Land Use Agreement with the Barkandji Native Title Body Corporate that “will seek to address water access” through their native title determination.
“Improving cultural outcomes for Aboriginal people is key to our work on the NSW Water Strategy, which includes commitments to improve Aboriginal ownership of and access to water for cultural and economic purposes,” they said.
‘We should have a say in how water is managed on our country’
Associate Professor Brad Moggridge, a Kamilaroi water scientist at the University of Canberra, said Indigenous groups throughout the Murray-Darling Basin were fighting a similar battle.
“We should be seen as the original owners, the original custodians, and have a say in how water is managed on our country – but at the moment, we don’t,” he said.
The Murray-Darling Basin Plan was enacted with bipartisan support in 2012 to restore health to the country’s largest river system, while meeting the needs of farmers, irrigators and towns.
But it delivers little for those who managed the waterways for tens of thousands of years.
The Murray-Darling Basin Authority (MDBA) provides financial support to two Indigenous organisations that provide advice to the authority on behalf of around 40 First Nations groups.
A spokeswoman for the MDBA said in a statement it “actively involves First Nation people in water planning and management” and considers partnerships with traditional owners to be a key priority.
First Nations groups own less than 1 per cent of the basin’s water
Collectively, First Nations groups own just 0.17 per cent of the basin’s water, a Griffith University study commissioned by the MDBA found.
Mr Moggridge said Indigenous people were locked out of the water market from the beginning.
“It was set up to benefit the colonial settlers, and that’s exactly what it’s doing,” he told 7.30.
Until the 1970s, water rights were granted to whoever owned the land. During the same period, Indigenous people were not counted as citizens.
“We were on the missions and reserves, not part of the general community, not part of the census – so not human,” said Mr Moggridge.
Some land was returned to Indigenous people under land rights legislation or restitution schemes in the 1980s and 90s, but usually without lucrative water entitlements.
In 1993, the Native Title Act gave successful claimants the right to use water for cultural purposes, but not for economic gain.
A decade later, land and water was decoupled in national policy, and water became a rare and precious commodity to be bought and sold.
Last financial year, water trades were valued at $7 billion.
“If the government doesn’t fork out the money, there’s no way our mobs can afford that,” said Mr Moggridge.
“Why can’t we be compensated for the water that was taken away from us? It was always ours, we always cared for it – and now we’ve got to go to the market and buy it.”
Federal water minister yet to deliver on $40 million promise
Three years ago, the federal government pledged to set up a $40 million fund for Indigenous groups to buy water in the basin, but the funds have not been delivered.
Federal Water Minister Keith Pitt told 7.30 the delay was due to the government being unable to agree with Indigenous communities on a delivery model.
“The Australian government is working with Indigenous communities to agree the framework for implementing the program and deliver the commitment as soon as possible,” he said.
Mr Pitt said the government had appointed Nari Nari man Rene Woods to the board of the MDBA — the first Indigenous person to hold such a position — and set up a $3.1 million grants program to create four Indigenous river ranger groups.
But experts such as Emma Carmody, managing lawyer at the Environmental Defenders Office, are calling for a more radical overhaul of water policy and planning.
“If the government is serious about reversing Aboriginal water dispossession in the Murray-Darling Basin, it has to, first of all, reimagine water laws so that they privilege Aboriginal rights and interests,” she said.
“But it also has to put money on the table and $40 million just doesn’t come close enough – we’re talking, at a minimum, hundreds of millions of dollars.”
From a dust bowl to a thriving wetland
In the rare cases where Aboriginal people do own and manage water in the basin, the results speak for themselves.
The Nari Nari Tribal Council (NNTC) acquired Toogimbie Station, outside Hay in western NSW, in 2000 under a government land restitution scheme.
Crucially, it came with the rights and infrastructure to pump thousands of megalitres of water from the Murrumbidgee River.
In 20 years, the land has transformed from a dust bowl to a combination of sustainable farming, protected cultural areas and thriving wetlands alive with native birds and plants.
“You add water and this is what you get,” said Mark Brettschneider, NNTC land manager.
The property has provided 40 jobs for Indigenous people and hosts cultural programs for school students and at-risk young people.
“Water is the way out of welfare,” says NNTC managing director Ian Woods.
Brad Moggridge says the transformation at Toogimbie shows what is possible when Indigenous people are empowered to own and manage water.
“The potential is the gap will close. We’ll have healthier rivers, we’ll have healthier country, we’ll have healthy culture and we’ll have healthy people.”
Watch this story tonight on 7.30 on ABC TV and iview.