The following essay is the sixth in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay / third essay / fourth essay / fifth essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Katie O’Bryan, a Lecturer at Monash University in Melbourne, Australia. She can be reached at Katie.OBryan [at] monash.edu.
Introduction
Historically, Victoria’s water laws have not recognised Aboriginal people as having a role in managing and protecting Victoria’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
This 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.
The Yarra River. Photo courtesy of Katie O’Bryan.
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 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
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 it (the Yarra) 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.
Secondly, 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.
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 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.
The Whanganui River. Photo Courtesy of Katie O’Bryan.
The Yarra River Protection Act 2017 and the Te Awa Tupua Act 2017 compared.
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.
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.
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: