In October 2020, the Martuwarra Fitzroy River Council, empowered as Traditional guardians “to be the voice of the Living Waters of the Martuwarra Fitzroy River and its inalienable right to live and flow” (17) produced “A Conservation and Management Plan for the National Heritage Listed Fitzroy River Catchment Estate” (Martuwarra Management Plan). Notably, the Martuwarra River itself is cited as the primary author of its management plan.
Through a consultative process that began in 2016, the plan is “guided and informed by Traditional Knowledge and insights from six independent Indigenous Nations which have, in partnership, developed a framework of guardianship with accompanying rights, responsibilities and obligations.” (15). The intention of this Plan is not the formation of a detailed set of management rules, rather it is “a statement of rights and it is a statement of life that must underpin any allocation rules around how water is extracted and used.” (16). The Plan is grounded in First Law—”the system of governance and law that Indigenous Australians have developed over tens of thousands of years” (37)—where under one First Law, Warloongarriy Law, “the Traditional Owners of the Martuwarra regard the River as a living [sacred] ancestral being…with its own ‘life-force’ and spiritual essence. It is the ‘River of Life’ and has a right to live and flow.” (10).
In addition to recognizing First Law, customary law, and the guardianship authority and fiduciary duty of the Martuwarra Traditional Owners to protect the Martuwarra, the Plan emphasizes the Martuwarra Council’s strategic intent to develop a conservation co-governance model with the WA Government (22).
In 2021, the Council submitted a response to the Western Australia government’s Water Management in the Fitzroy River Catchment Plan Discussion Paper for Stakeholder Consultation. This response reiterates the Council’s 2020 management plan and again urges the WA Government to recognize First law and the Council’s (and River’s) traditional governance of the Martuwarra-Fitzroy (outlined in the 2020 Martuwarra Management Plan), stressing their recommendation to “co-design a governance model, that includes both a statutory catchment authority and legislation specific to the Martuwarra-Fitzroy, that brings together the Martuwarra Council, the WA Government and all relevant stakeholders.” The following recommendations to the WA Government are found in the Council’s 2021 Submission to the WA Government’s Fitzroy River Catchment Management Discussion Paper:
Recommendation 1: The WA Government recognise the Martuwarra Council as a key legal and cultural entity in relation to the Martuwarra-Fitzroy by engaging with the Martuwarra Council in co-designing the Martuwarra-Fitzroy governance model. In return, the members of the Martuwarra Council are ready, and enthusiastic, to share their knowledges, their First Law and their innovative ideas for co-designing a governance model.” (7)
“Recommendation 4: The WA Government, and other relevant stakeholders, should recognise the value of First Law (as well as related traditional knowledge, wisdom and water stewardship) in existing intergenerational management of the River Country by engaging with the Martuwarra Council to incorporate First Law into the co-designed governance model” (7)… “and these features [of the model] must be legally enforceable” (9). The submission expands recommendation 4, citing the 2020 Martuwarra Management Plan: “Under First Law, the Martuwarra continues to be a sacred living ancestral being. Traditional Aboriginal law focuses on maintaining the balance of the earth so that all things can prosper. This sustainable model, known as Earth-centred Law, is the basis for the Fitzroy River Declaration (Poelina et al., 2019)” (16).
“Recommendation 5: The WA Government must commit to the principle of Free, Prior and Informed Consent as the basis for all consultation processes and all substantive policy and legal reforms [regarding the Martuwarra-Fitzroy] (including co-design of the governance model)” (7)
**Importantly, First Law differs from its western legal counterpart. Anne Poelina, Chair of the Martuwarra Fitzroy River Council, explains that First Law principles are not applied through rules, policies, and procedures where punitive measures influence individual and societal behavior. Instead, “First Law is applied through stories that impart values and ethics” which constitute “a comprehensive ethical framework that defines the codes of conduct necessary for maintaining a peaceful, thriving, and co-operative society grounded in love and reciprocity (4). As such, “ancestral being” is different from “legal personhood”. “As the River is already an entity, it should not have to depend on the specific actions of settler law to achieve this status” (Redvers et al. 2020, 3).