Image by Bernd Hildebrandt from Pixabay

Image by Bernd Hildebrandt from Pixabay

Fighting for Indigenous water justice

15th September 2020

Dr Virginia Marshall has built a strong reputation as a champion for Indigenous water justice, but it was while working as criminal defence lawyer that she encountered the case that would set her on this path.

Virginia was working at NSW Legal Aid when she had the opportunity to be the instructing solicitor for a matter concerning the right to fish based on a client’s cultural and religious beliefs.

“Aboriginal peoples along the coast have been fishing for thousands of years, however statutory legislation failed to recognise this,” Virginia said.

This experience eventually led Virginia to take an appointment as the inaugural Executive Officer of the NSW Aboriginal Water Trust in 2005.

“This appointment opened my political eyes to the significant policy and legal challenges faced by Indigenous peoples to gain access, use and management of water on their Country,” she said.

In the years since, Virginia has become a champion for Indigenous water rights and is paving the way for national water reform through her research, advocacy and fellowship at the Australian National University (ANU).

In 2017, she was appointed the inaugural Indigenous Postdoctoral Fellow with the ANU School of Regulation and Global Governance (RegNet) and the Fenner School of Environment and Society.

Leading up to this appointment, Virginia worked in a number of instrumental roles that established her as a leading advocate for Indigenous water law, rights and governance in Australia.

This included her work as an Associate and Researcher for the Federal Court, and Senior Legal Officer for the Australian Law Reform Commission.

In 2013, she started her own law firm, Triple BL Legal, which specialises in intellectual property, patents and trademarks, commercial contracts, native title, water law and mediation services.

“All of these roles helped me to understand the value of further education,” Virginia said.

“I could see that higher degree research was an important next step of this journey.”

At the time, research into Indigenous water rights and interests was still emerging and Virginia was leading the doctoral dialogue on water as a human right.

“My appointment as the inaugural ANU Indigenous Postdoctoral Fellow recognised the significance of my research on Indigenous water rights and interests, and enhanced my international collaboration on the emerging area of Indigenous water justice,” Virginia said.

Virginia’s research projects have focussed on “strengthening the health, wellbeing and economic livelihoods of Indigenous Australians”.

Virginia Marshall

Dr Virginia Marshall at the Memory and Tolerance Museum in Mexico City, where she represented the Pacific region at the United Nations Climate Change Preparatory Indigenous meeting.

A recent example is her research on Australia’s legislative framework for community-based Indigenous freshwater rights and tenure as a part of an international comparative assessment and report.

On delivery of the final report, it was noted that “Australia is one of the worst performers internationally in the Indigenous water rights area, even when compared to developing nations”.

“My research confirmed that Australia is under-delivering for Indigenous peoples, but also for women and vulnerable rural and remote groups,” Virginia said.

“The protection of Indigenous water rights is a necessity under human rights and international law because Indigenous peoples’ relationship to water is central to their identity.”

Despite this, Virginia says the treatment of Indigenous peoples’ water rights and interests by Australian governments in the development of national water reforms has been flawed.

She identifies the Closing the Gap framework as “administratively flawed” and points to minimal Indigenous involvement in setting the original targets.

“The framework does not identify water resource rights as one of the policy targets,” Virginia said.

“Water is recognised by the United Nations as a sustainable development goal, and the health and wealth status of Indigenous Australians will not improve if they are not in control of their own future.

“It is essential that the refresh of this framework puts Indigenous control and self-determination front and centre of closing the gap.”

Since commencing her fellowship with ANU, Virginia has embraced opportunities to advocate for Indigenous water rights in Australia and overseas.

Last year, she hosted the inaugural ANU Indigenous Water Forum and represented the Pacific region at the United Nations Climate Change Preparatory Indigenous meeting in Mexico City.

“Being at ANU has greatly enhanced my opportunities for water research, legal practice, publishing opportunities and collaboration with international scholars,” Virginia said.

“The potential to undertake international research on Indigenous water law and governance will benefit Indigenous communities collectively.”

Virginia’s research and commitment to Indigenous water law and governance has been widely recognised nationally and internationally.

In 2018, she received the Distinguished Woman Scholar Award from the University of Victoria in Canada and was recently a finalist for Academic of the Year at the Lawyers Weekly’s Australian Law Awards 2020.

Virginia was also the recipient of the 2015 AIATSIS Stanner Award for her thesis, which was published by Aboriginal Studies Press as a scholarly book, Overturning Aqua Nullius.

“When I undertook my thesis research there was an overwhelming silence in policy circles and more broadly on why Indigenous water requirements are important,” said Virginia.

“Receiving the Stanner prize provided me with an opportunity to advance the case for Indigenous people’s water rights to have certainty across policy and laws, including native title.”

Virginia’s seminal book was launched by international jurist, educator and former judge, the Hon. Michael Kirby, who also wrote the foreword.

Since writing her thesis, Virginia has continued to be a leading voice in the national dialogue surrounding Indigenous water rights and interests.

Most recently, she co-authored a policy brief, Water Reform for All: A National Response to a Water Emergency, which proposes six principles to provide a foundation for water reform in Australia.

The brief offers a formal response to water management in the Murray-Darling Basin, including the massive fish kills and heightened vulnerability of Indigenous communities with no access to water. It also addresses the 2019-2020 bushfire season and the ongoing impacts of climate change in Australia.

“Australia’s national water policy, laws and compliance are no longer effective to deal with these challenges,” said Virginia.

“In our water policy brief, we collectively argue for restitution for Australia’s First Peoples to water, as well as other reforms.

“Indigenous peoples must be recognised as the key stakeholder in land, sea and freshwater management of this country.”

Virginia says Indigenous water knowledge is at the core of understanding water management in Australia. However, she also emphasises that this knowledge belongs to Indigenous people and sharing it must come with conditions.

“One of the foundations for change must be intergenerational responsibility and national truth-telling.”

“Reform is not possible without sincere and genuine partnerships with Indigenous communities.”

She believes that universities, if they can marshal an Indigenous critical mass, have the “intellectual capacity and expertise to investigate and communicate this need for change and argue why civil society should support reform”.

Updated:  10 August 2017/Responsible Officer:  Director, RegNet/Page Contact:  Director, RegNet