What is a ‘living being’?

So what does being a “living entity” really mean to Yarra?

“It’s complicated,” says water law and policy expert Erin O’Donnell. If there’s anyone who understands the legal intricacies of this issue, it’s Erin. She’s also a senior lecturer and ARC research fellow at the University of Melbourne’s Faculty of Law. Erin has also been a member of the Birrarung Council (The voice of the Birrarung) since its inception in 2018.

“‘Living entity’ is a formal recognition in law that the river and its lands are alive, which is profound,” Erin explains, before offering this analogy: “It’s like recognizing that animals are alive and conscious for the purposes of animal welfare, so once that’s recognized, we’re no longer treating them as just resources to be exploited. We’re recognizing that they have needs, feelings, and agency. So we’re recognizing the same thing for the river.

“However, this analogy does not work because animal welfare places many obligations on humans that must be met, while the current Birrarung regulations are somewhat vague on the specific obligations associated with the status of ‘living entity’.”

There If few tangible protections for the river through legislation. These include city planning controls that impose limits on how close buildings can be to the river, and limits on the height of buildings near the river.

But Erin argues that the status of “living being” means something much deeper.

“It says that the river is not just a resource for human domination and exploitation, it is a living entity that we are in relationship with. And so it requires us to say, ‘Well, what kind of relationship do we want to have with this river?’”

“And that’s where the vision of a 50-year community comes in.”

The 50 Year Community Vision was created by over 2,500 Victorian community representatives. It expresses the community’s hopes for the river and provides a strategic framework for protecting the waterway.

“It’s a statement from the community saying, ‘This is the future we want to co-create with this living river,’” Erin says.

Community representatives were selected through a series of engagement processes conducted by Melbourne Water – the lead agency under the Birrarung legislation.

“Everywhere up and down Birrarung – from the upper catchment all the way up the mountains to the mouth – there was community involvement. There was a sort of citizen jury – it wasn’t officially called that, but that’s basically what it was,” says Erin.

“It was a group of people who were appointed to represent the different and diverse communities up and down the river. And they met on a number of occasions. They spent time with the Wurundjeri Woi-wurrung, they spent time with local government and planning officers, and they learned a lot about the river, and then they wrote a vision for the community, which was then tested by a much wider community as well.”

“This was a really well-executed community engagement exercise that goes a long way to supporting the legality of this legislation.”

The community vision for a period of 50 years is not legally binding, but is implemented by Burndap Birrarung burndap umarkoo (Yarra Strategic Plan) 2022–32In the Woi-wurrung language, Burndap Birrarung burndap umarkoo means “Good for the Yarra is good for all.” It is a 10-year plan that describes how collaborative management will protect the river and its lands as one living, integrated natural entity.

“That’s where the legally binding stuff comes in,” says Erin. “Every 10 years there has to be a Yarra Strategic Plan that brings the community vision to life in new steps.”

The Voice of the River

In addition to the 50-year community vision and the Burndap Birrarung burndap umarkoo Yarra Strategic Plan, there is the Birrarung Council – an independent statutory body established under the Yarra Protection Act 2017.

Known as the ‘Voice of the Birrarung’, the Council advocates for the river’s interests and advises the Victorian Government and the Minister of State for Water on the conservation, enhancement and protection of the river and its lands.

The Birrarung Council is made up of Elders from Traditional Owners, experts in a variety of areas relating to the river and key members of the community.

Always has been, always will be

Two groups of Traditional Owners have custody of the Birrarung – the Wurundjeri Woi-wurrung are the people who inhabit the vast majority of the river and its lands, and the Bunurong are the people who inhabit the mouth of the river. The Birrarung is central to the identity of both groups.

It was the Wurundjeri Woi-wurrung leaders who led the fight for the river to be recognised as a living entity in Victorian law, as it is in traditional law.

“In 2017, it was these leaders who were communicating the idea that this river is alive; that’s how they’ve always known the river – as a living thing,” Erin explains. “That’s how their law recognises the river, so they wanted to see that idea embedded in the law of the settler state, which is now Birrarung legislation.”

Slow Burn

“The idea of ​​the river as a living entity is a really big idea,” says Erin, describing the success of the Birrarung legislation as a “slow process”.

“The lack of legal authority for Birrarung as a ‘living entity’ means you can’t go to court and necessarily enforce the idea. But it also means it’s quite a delicate idea, so people don’t feel threatened by it.”

Erin says there are examples abroad where rights-of-nature laws have failed because they were implemented too quickly or too early, such as in the case of “legal personhood.”

“What we see overseas – and Whanganui[New Zealand]is kind of an exception – is that almost everywhere where Nature has been given rights there has been a backlash, particularly in places like the US where we see communities basically falling apart as soon as natural entities are given rights. Parts of the community see this as a weapon against them. In most cases they immediately challenge it legally and in most cases they win, so the rights disappear again.”

“That’s not what’s happening with Birrarung. Here, this transformative idea is inspiring people to think completely differently about what a river is and what it should be, and what our relationship to the river is.”

Flow effects

“In terms of precedent value, the Birrarung legislation is incredibly high,” says Erin, “and it’s an idea that people are very excited about.”

In 2020, following the Yarra/Birrarung decision in 2017, the Victorian State Government recognised the areas along the Great Ocean Road as a “living and integrated natural entity” within its The Great Ocean Road and Surrounding Areas Protection Act 2020.

Interestingly, the Victorian government recently committed to new legislation recognising all of the state’s waterways as living entities. “They said they would put the legislation to parliament by September 2025 and we’re getting there,” says Erin.

“The second thing that’s happening in Australia right now is the ongoing negotiations for a new national water agreement between the states and the federal government,” says Erin. “Part of that process has involved putting out quite a few draft principles for consultation. One of those principles is that all waterways in Australia are living entities.

“So the Birrarung legislation has established itself as an Australian first and governments are seeing it as a success. It’s an idea that’s resonating.”