Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697636885252.pdf (Australia)
Murray Lower Darling Rivers Indigenous Nations Post Office Box 5005 Brunswick North VIC 3056 www.mldrin.org.au ABN: 45118364079 MLDRIN SUBMISSION TO ACCC REVIEW: WATER MARKET ISSUES PAPER Authors Will Mooney, Murray and Lower Darling Rivers Indigenous Nations Dr Erin O’Donnell, University of Melbourne Lana Hartwig, Griffith University OVERVIEW We welcome the opportunity to contribute to the ACCC review of water market operation in the Murray- Darling Basin.
The dire drought conditions in New South Wales and the likelihood of increased water scarcity in northern Victoria are causing real hardship to Aboriginal communities across the Murray-Darling Basin.

The issues paper developed by the ACCC identifies five areas of focus: (1) market trends and drivers; (2) market transparency; (3) regulation and institutional settings; (4) market participant behaviours; and (5) competition and market outcomes.
The ACCC has been asked to identify potential solutions that enhance water market operation and efficiency, but we are concerned that this opportunity for a broader review of market functionality for all participants (current and future) is not missed.

Water markets are an important tool for managing access to water, particularly during times of scarcity.
During the Millennium Drought, water markets played an essential role in maintaining productivity in the southern Murray-Darling Basin in particular (National Water Commission, 2012).

However, a water market is not an end in itself: it must be performing a necessary function.
Water markets require substantial government investment in defining and enforcing rights to water (including compliance), creating and supporting water registers and water accounting, as well as the essential work of river operations to deliver water to where it is needed.

For this investment to be worthwhile, it is important to regularly review the function of the water market, and whether it is actually delivering the desired outcomes for all communities of interest.
Water markets are a form of regulation (not an alternative to regulation), and as a result, water markets can be adjusted where necessary to make sure that they are delivering those outcomes (Loch et al., 2018).

One of the important functions of the water market in the Murray-Darling Basin is to facilitate a re-allocation of water between users.
For the most part, water has been re-allocated between irrigators (as water moves to higher economic value uses) and between irrigators and the environment, with some small shifts from irrigation to regional towns.

These water transfers only occur via the market, however, when the buyer is willing and able to pay.
Australia’s colonial history and the exclusion of Aboriginal peoples from holding land when water entitlements were distributed prior to the capping of water extraction and the separation of land and water means that Aboriginal peoples are largely excluded from holding water today (McAvoy 2006).

Indeed, Traditional Owner-specific water rights are reported to be less than 0.01% of water use rights in Australia (Jackson and Langton, 2012).
The development of the Basin more specifically has left Aboriginal Nations in possession of less than 1% of its land base (Arthur 2010), representing a higher level of dispossession than many other Australian regions (Jackson & Langton, 2012; Morgan, 2011).

This history sees Aboriginal peoples in the Basin hold dismal water rights (Altman and Arthur, 2009; Arthur, 2010).
For many First Nations peoples, the separation of water from land, the formulation of water ‘products’ as commodities that can be held and traded for private profit and the disembodiment of water from its sacred Multi-Jurisdictional Management and Execution of the Murray Darling Basin PlanSubmission 28 - Attachment 7 Murray Lower Darling Rivers Indigenous Nations Post Office Box 5005 Brunswick North VIC 3056 www.mldrin.org.au ABN: 45118364079 and spiritual contexts are fundamentally at odds with deeply enshrined water values and custodial responsibilities.
Nevertheless, under current governance arrangements, the most viable, immediate pathway for Traditional Owners in the Murray-Darling Basin to access water is via entering the water market.
Since the Echuca Declaration in 2007, there has been a consistent push for increased cultural flows to support Aboriginal cultural, economic, environmental, and spiritual values associated with water (Morgan, 2011; Department of Environment Land Water and Planning (Vic), 2016, Woods et al., 2017, National Cultural Flows Research Project, 2018).
Water markets can play an important role in addressing the injustice of the ‘double dispossession’ of Aboriginal people when it comes to water in Australia, but only if market rules and operation enable this outcome (O'Bryan, 2019, Macpherson, 2017).

Given the unaddressed injustices of the dispossession and associated ongoing legacies raised here, many Traditional Owners – and supporters – object to the notion that Aboriginal peoples should have to buy back these rights.
Adding to this, historical and structural inequities mean Aboriginal peoples are often without access to financial resources to buy water in this way.

While there have been some recent policy and funding commitments by state and federal governments, these are yet to reallocate water to Aboriginal peoples.

There is an urgent need to re-allocate water to Traditional Owners.
This historic (and ongoing) lack of access to water rights not only deprives Traditional Owners of the means by which to care for Country and support economic development, but it also precludes them from participating in the water market itself (O'Donnell and Garrick, 2019; McAvoy 2006).
SPECIFIC RECOMMENDATIONS In its review of water market operations in the Murray-Darling Basin, we urge the ACCC to go beyond the mere mechanics of market operation to focus on the outcomes that water markets are designed to achieve.

Specifically, we make the following recommendations: (1) Any adjustment to water market operation needs to acknowledge the historic exclusion of Aboriginal people from the water market, and actively seek to address this problem.
This should include lowering barriers to entry for Aboriginal participants, such as time-limited exemptions to fees and charges, purchasing and reallocating of water entitlements, and other barriers.

(2) Any adjustment to water market operations needs to strengthen the capacity for water markets to enable re-allocation of water to Aboriginal people in future.

Any proposals that alter market operations should be assessed against this existing priority.
(3) Where possible, any significant reforms for the Murray-Darling Basin water markets should incorporate findings from significant state-level projects which are currently underway, including the Water Access for Economic Development project in Victoria.
This project is being undertaken as a co- design process with Traditional Owners, peak bodies (MLDRIN and the Federation of Traditional Owner Corporations in Victoria), and the state government, and will provide a clear statement of Traditional Owner interests in and aspirations for water management in the Basin (see Appendix A for Stage 1 discussion paper).
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APPENDIX A Stage 1 Discussion Paper, Water Access for Economic Development project Multi-Jurisdictional Management and Execution of the Murray Darling Basin PlanSubmission 28 - Attachment 7