Remember ‘terra nullius’ the legal term that rose to prominence in the Mabo case? It referred to the first settlers understanding of the ownership of “Terra Australis Incognita,” the name used by the first British to describe the “unknown southern land”.

(The Dutch were far more imaginative and called Australia “New Holland,” a marketing angle that CNH has yet to cotton onto, but I digress.)

Terra nullius was the legal doctrine that defined land that belonged to no one. It derives from classical Roman law, under which the doctrine of “occupatio” acted to confer title upon the discoverer of an object that was res nullius, that is, “belonged to nobody”.

Now, before all the woke bush lawyers out there react in horror and rush to their keyboards to point me towards the 1992 Native Title High Court decision, let me point them to “The Rejection of Terra Nullius in Mabo: A Critical Analysis” by David Ritter, who makes the claim that:

“Had the rejection of terra nullius been taken to its logical conclusion, white settlement in Australia would have been held to be unlawful, and ‘the High Court would [have rejected] the principle on which its own authority rests,’ but such a conclusion was patently untenable.”

Now, while I’m sure some within the progressive green left, western suburbs [of Perth], self-loathing community who listen with guilt to every ‘welcome to country’, would welcome a finding that ‘white settlement in Australia was unlawful’ (I am happy to take this to its logical conclusion and drive them to the airport), my focus in this opinion piece is not on terra nullius and who owns the land but on aqua nullius and who owns the water.

You might have heard about the recent push for a National Water Agreement, if not, let’s just say it’s the latest in a long series of policies pushed by Labor governments over the decades that seeks to address the Left’s ongoing guilt about Australia’s white invasion.

It all started with Whitlam’s Aboriginal Land Rights Act, then there was Hawke’s Aboriginal and Torres Strait Island Heritage Protection Act, which was followed by Keating’s Native Title Act, all of which have entrenched the opportunity for governments to veto developments based on indigenous heritage claims.

To that, we can now add Albanese’s failed Voice Referendum which sought to entrench indigenous power across the entire federal system, plus there was the recent WA Labor government’s attempted rewrite of the State’s Aboriginal Heritage Act, plus the Water and Rivers Reform Act, both of which were pulled at the last minute as a result of a backlash from miners and farmers.

Unfortunately, while the Cook Labor government has joined the dots and drawn a line in the sand of indigenous legislative activism, the Albanese government shows no sign of learning from the referendum disaster and is pushing ahead with building indigenous veto powers into a new National Water Agreement plus revving up the Commonwealth’s Heritage Act.

The Labor government has released discussion papers on both water and heritage seemingly clueless to the storm that has arisen around them over the abuse of existing powers by activist ministers. You may have read about Plibersek’s move to cancel the approvals for a billion dollar gold mine in NSW on the basis of the aboriginal heritage impact of a river catchment raised by a breakaway indigenous group of just 18 people.

To give you a taste of what the progressive left within the bureaucracy is pushing, here is an excerpt from the water discussion paper:

“Aboriginal and Torres Strait Islander Peoples have managed water holistically for more than 65,000 years; however, since colonisation, they have been excluded from decision-making about water. This has had negative impacts on the well-being of Aboriginal and Torres Strait Islander Peoples. The Australian Government is determined to see this change.”

This comes from the insights paper titled “Pathway to Enduring Recognition of Aboriginal and Torres Strait Islander Peoples’ Water Interests in National Water Reform Initiatives,” produced by the Committee on Aboriginal and Torres Strait Islander Water Interests.

That group is pushing the claim that because Aboriginal and Torres Strait Islander Peoples own and control less than 0.2 per cent of the nation’s surface water entitlements, now is the time for Australia to develop an enduring arrangement that supports Aboriginal and Torres Strait Islander Peoples to own, access, and manage water in Australia.

In their support the academic legal fraternity has elevated the debate into the realm of the United Nations, arguing that under the Rights of Indigenous Peoples, the reservation of Aboriginal water rights needs to be prioritised above the water rights and interests of all other groups.

According to the view from that particular ivory tower, it is only then that Australia can sweep away the injustice of aqua nullius and provide the First Australians with the full recognition and status of their water rights and interests, rights that they should have received if the High Court had  added water to the terra within the Mabo judgment.

So, what exactly does the Indigenous industry want in this push for water rights? In their words they are demanding…. water policies, plans, and decisions to consider Aboriginal customary law and Torres Strait Islander Peoples’… Ailan Kastom…. to be included alongside cultural, spiritual, social, economic, and environmental values.

‘Ailan Kastom’ is the Torres Strait Creole term used for ‘Island Custom.’

Let’s dwell on that more a minute. Notice how they reference Torres Strait custom, also note that the lawyers in the Mabo case referred almost exclusively to Torres Strait law and custom to build their legal case around native title.  They made specific reference to their similarity to the gardening people of Papua New Guinea who grow yams on plots of land whose ownership is marked by stones. Why, I wonder, didn’t they use Australian Aboriginal law and culture for their High Court case, was it perhaps because they were a nomadic hunting and gathering culture with no fixed abode?

This is relevant when we are talking about aqua nullius. We are not talking about 65,000 years of farming, dam building, water pumping or irrigation which is what the new national water agreement is focused on.

Let’s be honest, the first white settlers were not confronted by an extensive irrigation network and floodwater management system similar to the ones the Spanish found when they stepped ashore in Mexico. There was no massive Khmer civilisation like Angkor Wat in Cambodia, nor was this the home of the development of farming at the cradle of civilisation in Mesopotamia.

Sorry to disappoint the romantics among the supporters of the Voice and all things Indigenous, but we are not talking about farmers, we are talking about a hunter-gatherer society that had no water management system, only a spiritual cultural relationship with water, one that has largely been lost as their links to the past, along with their language and stories have largely disappeared.

So let’s delve further into what indigenous activists are calling for.

They propose that, …in their words, ‘time and effort must be set aside during co-design and engagement planning to consider and evaluate whether there are any impacts or risks to Aboriginal and Torres Strait Islander Peoples, whether the engagement is qualitative (yarning, deep listening, two-way knowledge sharing) or quantitative.’

Now, I don’t know about you, but when it comes to “yarning” and “deep listening” with Indigenous people—or rather with them and their white lawyer fellow travellers—the farming and mining community know all too well that having a yarn, over land access, comes at a cost, starting at around $800 a day per person.

Or, as we found out during the recent State Heritage fight, the average cost to a miner for a heritage clearance is $80,000 while under the government’s mad but dropped new laws even the most basic heritage survey for a farmer to build a new dam on a suspected heritage site was going to cost upwards of $10,000 to simply go through the exercise of undertaking a survey.

Fortunately, thanks to our then-new Premier, the new Act was abandoned, unfortunately the Commonwealth has found a new way to add the wuggle back into the water and ensure the rent will flow like rivers of gold into a few hands.

This is not the place to delve into the complex details of how the new National Water Agreement will work, other than to say anyone who taps, pumps, drills, or holds water anywhere in Australia should be deeply worried, and that includes broadacre farmers in Western Australia.

Not that the Eastern States irrigators should be worried, because at the rate the Murray Darling is being locked up by Green Left state and federal government policies, they won’t have any water rights left to rent from the new indigenous owners.

But this is serious; it’s Mabo but without the High Court challenge. The federal government is likely to wait until after the upcoming election, and if they win, they will do a deal with the Greens and Teals to enforce a whole new regime of approvals, or rather veto rights, on the nation’s water users.

Just imagine trying to work out who controls the water that flows down the Murray Darling—all 3,672 km of it. If you think the endless legal cases over land rights were a problem, or working out water allocation rights between three states was hard, imagine working out where the wuggle begins and ends and who gets to tap the cash as it flows into irrigators’ paddocks.

The Wheatbelt would be just as bad. Tony Maddox, with his ongoing and very expensive court case over a crossing built on a gully in Toodyay, will be nothing like the flood of court cases that the new federal legislation would open up across the whole Avon Catchment. Forget building a new dam or pulling water on a creek line without paying an indigenous water tax.

To that, you could add all the bores, windmills, desalination units, and maybe even the water that falls on the paddocks. Like native title, once the law was passed the activist lawyers found heritage everywhere.

Think I’m exaggerating? Just have a read of the claimed indigenous links to water that are being used to build the political case for the new Water Bill.

An Aboriginal creation story interpreted by anthropologist Charles P. Mountford (1890–1976), entitled the ‘Salt Lakes of Kiti,’ illustrates a reconstruction of Aboriginal knowledge and how this now forms part of the argument that indigenous people should have the final say in who can access the nations waters.

“Gumuduk was a tall, thin medicine man, who belonged to the hills country. He owned a magical bone of such power that he could use it to make rain fall in season, the trees bear much fruit, the animals increase, and the fish multiply. However, the tribe that lived on the fertile plain below the Kiti range captured the medicine man and his bone, convinced that they, too, would in the future have more food. But instead of bringing them prosperity, the theft resulted in a calamity which totally destroyed their country. For the medicine man escaped, and was so angry over the indignity he had suffered that, plunging his magical bone into the ground, Gumuduk decreed that wherever he walked in the country of his enemies salt water would rise in his footsteps. Those waters not only contaminated the rivers and lagoons, but completely inundated the tribal lands. And when these waters dried up, the whole area was changed to an inhospitable desert of salt lakes, useless to both creatures and the Aborigines.”

This is the sort of story that tugs at the heartstrings of our Teal-voting western suburb elites. It is all the Canberra bureaucrats need to justify their drafting of powerful new legislation that forces all water users to negotiate with local elders over water access rights. It is the sort of story that attracts left-leaning politicians (including the odd liberal) to follow Midnight Oil’s call to “Give it Back.”

As we saw with the State Heritage legislation, what started out as a simple exercise to recognise high-value indigenous sites on freehold land quickly became an exercise in the transfer of property rights. The same with the state’s dumped water bill, which had indigenous water use rights buried right throughout it as a means of enabling elders to tap the water economy just as they now do the mineral economy.

To help build the case and to dog whistle that anyone not supportive is racist, the whole exercise is cloaked in the language of reconciliation, signalling to the hand-wringing classes that those that oppose are to be dismissed as as backward, regressive, and inherently prejudiced.

The exercise risks repeating the same mistakes that the Ardern Labor government in New Zealand made, where they moved to hand over control of waters and rivers to Māori groups.  A move that had disastrous effects on their property rights system and their economy.

Now the Australian Labor government wants to repeat the New Zealand mistake and is promising to create a rent roll home to be shared by the few at the expense of the many.

If this happens farmers will be back to square one, paying for yarning time with local indigenous elders and their expensive legal friends to negotiate where we build a new dam or if we can sink a bore.

Our one last line of defence, if we fail to convince the federal government to follow the WA government and drop the endless push to write indigenous veto powers into all manner of legislation, is the fact that the draft National Water Agreement requires all the state governments to approve it.

While states like Victoria will no doubt be quick sign up and sell their farmers out, our Premier should stand firm on states’ rights grounds. We don’t need to be part of a national water agreement as our water does not flow across to the eastern states.

On this logic Roger Cook might just be convinced to step up one more time and holds the line against handing any more power to Canberra and indigenous elites, if he does he is going to buy a lot of respect in the bush.