SOUTHWARD MOVEMENT OF WATER – THE WATER WAYS A thesis submitted by Dale Wayne Kerwin For the award of Doctor of Philosophy 2020 Abstract This thesis explores the acculturation of the Australian landscape by the First Nations people of Australia who named it, mapped it and used tangible and intangible material property in designing their laws and lore to manage the environment. This is taught through song, dance, stories, and paintings. Through the tangible and intangible knowledge there is acknowledgement of the First Nations people’s knowledge of the water flows and rivers from Carpentaria to Goolwa in South Australia as a cultural continuum and passed onto younger generations by Elders. This knowledge is remembered as storyways, songlines and trade routes along the waterways; these are mapped as a narrative through illustrations on scarred trees, the body, engravings on rocks, or earth geographical markers such as hills and physical features, and other natural features of flora and fauna in the First Nations cultural memory. The thesis also engages in a dialogical discourse about the paradigm of 'ecological arrogance' in Australian law for water and environmental management policies, whereby Aqua Nullius, Environmental Nullius and Economic Nullius is written into Australian laws. It further outlines how the anthropocentric value of nature as a resource and the accompanying humanistic technology provide what modern humans believe is the tool for managing ecosystems. In response, today there is a coming together of the First Nations people and the new Australians in a shared histories perspective, to highlight and ensure the protection of natural values to land and waterways which this thesis also explores. As a Worimi man I have been part of this community coming together of Australians which recognises the First Nations people’s cultural obligations to water and land. This has also extended to the legal theatre where Aboriginal jurisprudence is slowly being recognised in land Rights and Native Title. Hence it is like the Lore for the Kadaitcha man and the Illapurinja (female Kadaitcha) pointing the bone at Australian common law for recognition of the First Nations people being in country and our beliefs for water. Australian law is awash with policy that favours the government and not the community; as a Worimi man I have been part of an Indigenous community thirsty for transformation of this bad policy. From my perspective as a Worimi man, despite the Australian historical record, popular culture and government acknowledgement of Aboriginal acculturation over many years, Aboriginal ownership of Australia's largest river system is not appropriately respected. This thesis surveys this evidence and compares it with non-Indigenous knowledge, governance and management. This thesis argues that there needs to be a more equitable footing in Australian law, whereby the First Nations laws (Earth-centred laws), of spiritual, religious and cultural beliefs about water, the natural environment, native title and cultural heritage are respected and valued. This is a movement for the First Nations to be engaged as equal partners for water, cultural heritage, and environmental legislation. Only in this way can cultural practices and knowledge of the waterways be passed on to future generations and so continue the First Nations’ obligation to protect the Mother (Earth) for the betterment of all earthly creatures. The thesis, can therefore be understood as a contribution to the field of Indigenous Cultural Studies. The thesis concludes that unless Aboriginal people are allowed equal participation in managing the Murray-Darling Rivers then ecological arrogance will continue to dominate to the detriment of the rivers and my people. ii Certification of Thesis This Thesis is entirely the work of Dale Wayne Kerwin except where otherwise acknowledged. The work is original and has not previously been submitted for any other award, except where acknowledged. Principal Supervisor: Associate Professor Libby Connors Associate Supervisor: Professor Tracey Bunda Student and supervisor signatures of endorsement held at the University iii Acknowledgement of Country As a Gorrie (an Aboriginal person) from the Worimi nation and the author of this thesis; I acknowledge the Traditional Owners of the land where I study and live. I pay my respect to Elders past, present and emerging and the Elders of the New Australians as they are leaders of their communities. A cultural warning to Aboriginal and Torres Strait people that this thesis contains names of Elders who have passed away (note due to the anglicised spelling of Aboriginal nations these have changed over time so some are spelt differently today). Note: The terms First Nations people, Sovereign First Nations, First Nations, Indigenous, Traditional Owners and Aboriginal have been used interchangeably throughout this document. The thesis acknowledges that there exist several different preferences from various Aboriginal and/or Indigenous Nations across Australia and the Torres Straits in how they would like to be referred to. Acknowledgements I dedicate this work to the Aboriginal Elders who have instructed me in our cultural ways over the many years of my training, their patience, knowledge of cultural practices for both tangible and intangible ways is reflected in this thesis. I would also like to thank the lore people/Traditional Owners who I interviewed for this study I owe a debt of gratitude to: Mick Leon, Richard Percey, Robert Vincent Anderson, Dick Smith, Badger Bates, Murray Batcher, Cyral Hunter, Bradley Hardy, Uncle Des Sandy, Uncle Ned Jampijinpa Hargraves, Uncle Herb Wharton, Cheryl Buchanan, Maureen McKellar and Suzanne Thompson. May their cultural knowledge and memories speak from the pages of this thesis. To my family, thank you for your endurance and support over the long periods of research for this thesis. As a Worimi man I thank the spirits of my forebears for their counsel and guidance for conduct of cultural business along the songlines and storyways of the waterways a heartfelt thanks. My primary thanks go to my supervisory team: Associate Professor Libby Connors and Professor Tracey Bunda for their insight, invaluable advice, and instruction on research approaches and methodology which motivated me to produce the best possible study. I thank them for instruction on context, structure, support and encouragements they have given me, I thank both of you. I would also like to thank the University of Southern Queensland for awarding me the Research Training Program (RTP) Stipend Scholarship to undertake the work/study required to complete this thesis. This research has been supported by an Australian Government Research Training Program Scholarship. iv Table of Contents Abstract ii Certification of Thesis iii Acknowledgement of country iv Acknowledgements iv List of Illustrations vii List of abbreviations xii Chapter 1: Introduction of the Research 1 1.1 Aims and Objectives 2 1.2 Methodology 4 Chapter 2: Methods and Literature Review 10 2.1 Scope of the Thesis 10 2.2 Outline of Chapters and Literature Review 11 2.3 Chapter 3: The Country Australia- and Water Flows into the Murray/Darling Basin Australia- My Country 13 2.4 Chapter 4: A History of Legal Exclusion of First Nations 13 2.5 Chapter 5: Historical Engagement of the First Nations People for Water 14 2.6 Chapter 6: Oral Histories the Storyways 14 2.7 Chapter 7: Shared Histories: the Foot Prints in Sand 16 2.8 Chapter 8: Water and the Environment 18 2.9 Conclusion 19 Chapter 3: The Country Australia and Water Flows into the Murray/Darling 21 3.0 Introduction 21 3.1 A World View 24 3.2 Miwi, the Inner Connection to Lands, Waters and all Living Things 26 3.3 Ground Water 36 3.4 Australian Rivers 43 3.5 New Australians' view of country the land and people of Australia 48 3.6 First Nations View of Country 51 3.7 The Oldest Collective Memory 55 3.8 Conclusion 56 Chapter 4: A History of Legal Exclusion of First Nations 58 4.0 Introduction 58 4.1 Land Tenure to Land Rights and Native Title 59 4.2 “Whispering in their Hearts” 71 4.3 Cultural Heritage 74 4.4 Environment 78 4.5 Property Rights 85 4.6 Wilderness or an Acculturated Landscape 88 4.7 Water Rights A History of Exclusion - Aqua Nullius 93 4.8 Conclusion 97 Chapter 5: Historical Engagement of the First Nations People for Water 100 5.0 Introduction 100 5.1 Understanding the History of the First Nations Peoples Voices for v Rights to Water 101 5.2 Environmental water and cultural water 109 5.3 The First Nations People Legal Rights to Water 112 5.4 Queensland Water Plans 114 5.5 New South Wales Water Plans 120 5.6 Victoria Water Plans 122 5.7 South Australia Water Plans 123 5.8 Conclusion 124 Chapter 6: Oral Histories the Storyways 126 6.0 Introduction 126 6.1 Identity- Baaka Wimpajas (The Darling River Black People) 129 6.2 History of Occupation and use of the Waterways 132 6.3 Socio-Cultural Economics 137 6.4 River Red Gums: Eucalyptus Camaldelensis 144 6.5 Water Spirits 148 6.6 Stone Arrangements 150 6.7 Creation of the Murray River 151 6.8 The Creation of the Darling River 153 6.9 Conclusion 155 Chapter 7: Shared Histories: the Foot Prints in Sand 157 7.0 Introduction 157 7.1 Power Differentials’ 159 7.2 History as a Diorama 163 7.3 A Wilderness that needs to be given a History 165 7.4 Ngulli Yahnai Gulli Bahn (we are still here now) 168 7.5 Duggai Gulli Yahngu (the Whitefella are here to stay) 178 7.6 Conclusion 179 Chapter 8: Water and the Environment 182 8.0 Introduction 182 8.1 Water is Life 183 8.2 In the Age of the Anthropocene 188 8.3 Earth as the Mother 194 8.4 Talngai Gawarima 197 8.5 Rivers with Human Rights and the Law of Nature 201 8.6 Interconnection of Religion to Water 204 8.7 Conclusion 209 Chapter 9: Conclusion 211 10 Reference List 217 11 Appendix 248 Appendix 1 Universal Declaration of the Rights of Rivers 248 Appendix 2 Garma International Indigenous Water Declaration 251 Appendix 3 Corindi Water Declaration 2019 254 vi List of Illustrations Illustration 1.