Australian Peoples’ Tribunal for Community and Nature’s Rights 2019 Citizens’ Inquiry into the Health of the Barka/Darling River and Menindee Lakes REPORT AND RECOMMENDATIONS 30 SEPTEMBER 2020 Michelle Maloney, Gill Boehringer, Gwynn MacCarrick, Manav Satija, Mary Graham and Ross Williams Australian Peoples’ Tribunal for Community and Nature’s Rights an initiative of the Australian Earth Laws Alliance Michelle Maloney • Gill Boehringer Gwynn MacCarrick • Manav Satija Report Editor Michelle Maloney Mary Graham • Ross Williams Layout, Cover Design and uncredited photos: James K. Lee Cover image: Wilcannia Bridge over the Barka / Darling River. 24 March 2019. 2019 Citizens’ Inquiry © 2020 Australian Peoples’ Tribunal for Community and Nature’s Rights (APT) into the Health of the Barka / Darling River All rights reserved. Except as permitted under the Australian Copyright Act 1968 (for example, a fair dealing for the purposes of study, research, criticism or review), no part of this report may be reproduced, and Menindee Lakes stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. The Australian Peoples’ Tribunal for Community and Nature’s Rights (APT) is an initiative of the Australian Report and Earth Laws Alliance. All inquiries should be directed to the Australian Earth Laws Alliance (AELA). Recommendations https://www.earthlaws.org.au [email protected] Suggested citation: Maloney, M., Boehringer, G., MacCarrick, G., Satija, M., Graham, M. & Williams, R. (2020) 2019 Citizens’ Inquiry into the Health of the Barka / Darling River and Menindee Lakes: Report and Recommendations. Australian Peoples’ Tribunal for Community and Nature’s Rights (APT). Brisbane, Australia. ISBN: 978-0-6487137-1-5 Published by: Australian Peoples’ Tribunal for Community and Nature’s Rights (APT) PO Box 405 BANYO Queensland 4014 AUSTRALIA Non-commercial, creative commons, public domain, and stock photographs used in this report do not imply endorsement or support for the report contents by the photographer(s) or organisation(s). SPECIAL ACKNOWLEDGEMENTS The Australian Peoples’ Tribunal for Community and Nature’s Rights (APT) The Australian Peoples’ Tribunal (APT) for Community and Nature’s Rights acknowledge and thank the following people: acknowledges that the sovereignty of the First Nations peoples of the continent now known as Australia was never ceded by treaty nor in any other way. — Barkandji First Nations Peoples for welcoming us to their Country and enabling us to speak with The APT acknowledges and respects First Nations peoples’ laws and ecologically members of their communities, and all other First Nations peoples who participated in various sustainable custodianship of Australia over tens of thousands of years through ways, in the Citizens’ Inquiry land and sea management practices that continue today. — All the individuals and community members along the Barka/Darling River who attended a public hearing, spoke privately or on video, hosted us and made us feel welcome in their communities — Mark Merritt and Susie Peak for their commitment in bringing the APT to the communities of the Barka/Darling River — The APT Research and Support Team – James Lee, Maggie Turnbull, Meaghan Burkett, Gale Duell, Rosy Whelan and Matt Gore — Aeon Vision Film & Earthling Studios who produced the video testimonies – Ryan Jasper, Clare Lewis, Monique Upton, Eduard Figueres, Tamia Cotacachi — The Australian Earth Laws Alliance (AELA), including the Board of Directors, for their unwavering support — Everyone who donated to our GiveNow crowd funding cause, to help fund the APT’s two-week Inquiry along the Barka/Darling River Aboriginal and Torres Strait Islander readers are advised that this report may contain images of deceased persons. iv v REPORT CONTENTS CONTENTS Lived experiences matter . 2 Invitation to hear the voices of the local people: Video testimonies from the Tribunal . 2 1. REPORT SUMMARY Who participated? . 2 2. ABOUT THE CITIZENS’ INQUIRY A Poem – Please Listen to Our Plea . 3 3. CONTEXT – THE BARKA/DARLING RIVER AND MENINDEE LAKES Managing water together . 4 4. THE RIVER TODAY AND IN THE PAST 1. REPORT SUMMARY . 7 5. COMMUNITY CONCERNS 1.1 Introduction. 8 6. COMMUNITY HELD BELIEFS ABOUT THE CAUSES OF THE CRISIS 1.2 Summary of Community Concerns . 8 1.3 Summary of Community-held beliefs about the causes of the crisis . 9 7. COMMUNITY SOLUTIONS 1.4 Summary of Community Solutions . 9 8. FINDINGS AND RECOMMENDATIONS FROM THE CITIZENS’ INQUIRY 1.5 Findings and Recommendations . .10 RECOMMENDATIONS OF THE INQUIRY PANEL . 12 2. ABOUT THE CITIZENS’ INQUIRY . 19 2.1 About the Australian Peoples’ Tribunal for Community and Nature’s Rights . 20 2.2 About the 2019 Citizens’ Inquiry into the Health of the Barka/Darling River and Menindee Lakes . .22 2.3 Citizens’ Inquiry Panel Members . 22 2.4 Citizens’ Inquiry Objectives and Methodology . .26 2.4.1 Citizens’ Inquiry Objectives . 26 2.4.2 Citizens’ Inquiry Process and Methodology . 26 2.4.3 Questions Guiding Witness Testimony . 27 3. CONTEXT – BARKA / DARLING RIVER AND MENINDEE LAKES . 29 3.1 Introduction and Summary of Section . 30 3.2 Geographic Context - the Barka/Darling River nd Menindee Lakes . 30 3.4. First Nations Peoples’ Connection to and Governance of the Barka . 34 vi vii 3.4.1 Ancient river culture . .34 5.4.2 Physical health impacts . 104 3.4.2 The Impacts of Colonisation on First Nations Peoples . .36 5.4.2.1 Blue-green algae blooms and human health . 106 Sovereignty was never ceded . 37 5.4.3 Mental health impacts . 110 3.4.3 First Nations Peoples and the Barka/Darling River Today . 38 5.5 Concerns about children and future generations . 112 3.5 Colonial Governance of the Darling River since 1788 . 39 5.6 Impacts on social and cultural lives of affected communities . 114 3.5.1 Overview. .39 5.7 Impacts on economic livelihoods of affected communities . 116 3.5.2 Colonial use of the river: ‘‘for travel, for irrigation and for power’’ . .40 6. COMMUNITY HELD BELIEFS ABOUT THE CAUSES OF THE CRISIS. 123 3.5.3 Federation of Australia, to the present . 42 6.1 Introduction and Summary of Section . 124 3.6 Recent Inquiries, Reviews and Investigations . 48 6.2 Extraction of too much water from the top of the river system . 124 3.6.1 Productivity Commission Report . 48 6.2.1 Comments specifically about the cotton industry 3.6.2 Murray-Darling Basin Royal Commission . .48 at the top of the river system . 132 3.6.3 Academy of Science . .51 6.3 Floodplain harvesting . 141 3.6.4 Independent Assessment of the 2018-19 Fish Deaths in the Lower Darling. .51 6.4 Commodification of water . 147 3.6.5 Murray-Darling Basin Water Markets Inquiry-Interim Report . 51 6.5 Alleged mismanagement, bias, corruption and water theft . 152 4. THE RIVER TODAY AND IN THE PAST . 53 6.5.1 Manipulation of 2012 Barwon-Darling Plan Water Sharing Plan . 164 6.6 Alleged deliberate ‘‘emptying out of the west’’ by governments . 166 4.1 Introduction and Summary of Section . 54 6.7 Lack of care and concern by governments, for the health and wellbeing 4.2 How the river used to be . .55 of people living in outback river communities . 168 4.3 How the river is now . 67 6.8 Failure of governments to include local communities and local knowledge adequately in river governance . 171 5. COMMUNITY CONCERNS . 77 7. COMMUNITY SOLUTIONS . 179 5.1 Introduction and Summary of Section . 78 7.1 Introduction and Summary of Section . 180 5.2 River system is dying – collapse of natural systems . .79 7.2 Let the River Run . 181 5.2.1 Lack of water in the river system and lakes . 79 7.2.1 Reduce extraction at the top of the river system, 5.2.2 Loss of wildlife and ecosystem health due to lack of water stop floodplain harvesting and restore water flow to the Menindee Lakes . 181 and polluted water . .82 7.2.2 Use a science based approach to understanding and managing river health 184 5.3 First Nations Peoples’ deprived of access to lands, water and cultural practices . 88 7.3 Enforce the laws we do have – penalise wrong doing and criminal activity . 185 5.3.1 Exclusion from land, water and culture . 88 7.3.1 Reverse changes made to the 2012 Barwon Darling Water Sharing Plan. 186 5.4 Human health impacts of dying river system . 98 7.4 Royal Commission into alleged mismanagement, corruption and water theft . 187 5.4.1 Absence of safe water for drinking, bathing and household use . 98 viii ix 7.5 Fundamentally change agricultural practices along the river, 8.2.3 Obligations under International Treaties and Instruments to which to suit the reality of a dryland river system . 188 Australia is a party . 208 7.6 Change the fundamental governance structures for managing 8.3 GOVERNMENT NON-COMPLIANCE WITH EMERGING INTERNATIONAL NORMS . 212 the Barka/Darling River . 188 8.3.1 Rights of Nature . 212 7.6.1 Change the fundamental goal of river governance to ensure holistic river health, from the top to the bottom of the system . 188 8.3.2 Ecocide . 213 7.6.2 Increase First Nations Peoples’ leadership and control 8.3.3 Genocide. 215 over river management; enable custodial obligations to care for country . 189 8.4 ISSUES REQUIRING FURTHER INVESTIGATION . 217 7.6.3 Increase local community control over governance of river . 190 8.4.1 The need for a Federal Royal Commission . 217 7.6.4 Increase national oversight and enforcement, decrease state control over river system . 192 8.4.2 The need to investigate allegations of corruption, abuse of power and misuse of public office . 219 7.6.5 Impose greater responsibility on irrigators, businesses and townships to care for the river system .