A creative solution to a wicked problem: ‘Wild Law’ and the Murray-Darling Basin

The environmental health of the Murray Darling Basin has been at risk for decades. It’s time to explore a creative legal solution for improving it.

Following the 2017 report on the ABC’s Four Corners which suggested that billions of litres of water earmarked for the environment have been diverted for cotton irrigation in NSW, the Murray-Darling Basin has again been plastered across the headlines.

Although the Commonwealth Government has taken a role in promoting and leading Basin-wide management through the Water Act 2007 and the Murray-Darling Basin Plan, regulation of the Murray-Darling is still highly complex due to its cross-jurisdictional reach.

With no real solution in sight, several reviews and investigations underway and some States looking to distance themselves from the current arrangements, the time has come to explore more creative solutions to an increasingly wicked problem…

COULD ‘WILD LAW’ BE THE ANSWER?

An emerging jurisprudence theory that bestows legal rights on aspects of the environment and the Earth community (such as plants, animals, rivers and ecosystems), Wild Law encourages a critique of law from an earth-centred perspective.

One of the earliest expressions of Wild Law was in a dissenting judgment by Associate Justice William Douglas of the United States Supreme Court in Sierra Club v Morton 405 U.S. 727 (1972). Justice Douglas suggested that natural resources, such as rivers and mountains, should be granted standing to sue for their own protection.

A more recent example is the New Zealand Te Urewera Act 2014, which transformed 208,000 hectares of remote wilderness in the Te Urewera National Park (located in the East Coast of New Zealand’s North Island) into a unique entity with all the rights, powers, duties, and liabilities of a legal person in the name of Te Urewera.

Also in New Zealand, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 declared the Whanganui River – New Zealand’s third longest river and the subject of a decades long ownership stoush between the Whanganui Iwi Maori tribe and European interests – to be a legal person with all the associated rights, powers, duties and liabilities. The Act also established ‘Te Pou Tupua’, a sort of trust described as the ‘human face of the river’. This consists of two people – a Crown appointee and an Iwi appointee – who act as the River’s guardians and speak on its behalf.

In justifying the Te Awa Tupua legislation, a New Zealand Minister noted that “…it’s no stranger than family trusts, or companies or incorporated societies”.

Essentially, it appears that the fight for control of the River had gone on for so long that the New Zealand government decided no ethnic group would own it and the River would be empowered to look after itself.

IS IT TIME FOR ‘MURRAY’S LAW’?

The Murray-Darling Basin catchment spans Queensland, New South Wales, the Australian Capital Territory, Victoria and South Australia, and provides ‘essential water’ for more than 3.4 million people.

Economies of regional centres relying on its waters produce one-third of all of Australia’s food from 20 per cent of Australia’s farming land.

The Murray-Darling’s importance to Australia’s ecosystem and economy, let alone to Indigenous Australians, cannot be denied.

Giving it an opportunity to defend itself under a Wild Law is something that could be given serious consideration. The River’s cross-jurisdictional status would support its recognition as an independent legal person since it truly belongs to no one State or Territory.

Surely the Murray-Darling Basin itself couldn’t make as big a mess of its affairs as we’ve managed to do for far, far too long.