Decolonising Indigenous water ‘rights’ in Australia: flow, difference, and the limits of law

Burdon, Peter D.; Drew, Georgina; Stubbs, Matthew; Webster, Adam; Barber, Marcus

doi:10.1080/2201473x.2014.1000907

Cited by 11 publications

(5 citation statements)

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“…That is, it is a construction applied to water resources as a way to make water itself more knowable and governable. Attempting to translate their own diverse water needs, rights and objectives into the language of water regimes so that they may be recognized and accommodated, Aboriginal people have also generated proposals for water redistribution based on cultural-difference [3,13,42]. The concept of 'cultural flows', for example, has been proposed, which is defined as 'water entitlements that [would be] legally and beneficially owned by the Indigenous Nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations ' [104].…”

Section: Discussionmentioning

confidence: 99%

“…Barkandji country is comprised of this major river system, together with the surrounding largely arid lands in most of far-western NSW between the Murray River in the south and parts of southern Queensland in the north [40]. European occupation of Barkandji country began as early as the 1830s, as settlers used the Darling River as a transport corridor [40] and imposed British riparian law to enable expansion of the pastoral frontier [41,42]. Like many other Aboriginal and Torres Strait Island groups across Australia, the Barkandji faced severe disruption to their way of life, having to contend with policies of displacement and relocation, even eradication.…”

Section: Case Study and Methodsmentioning

confidence: 99%

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Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

2018

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Abstract:The passage of the Native Title Act 1993 (Cth) brought with it much anticipation-though in reality, quite limited means-for recognizing and protecting Aboriginal peoples' rights to land and water across Australia. A further decade passed before national and State water policy acknowledged Aboriginal water rights and interests. In 2015, the native title rights of the Barkandji Aboriginal People in the Australian State of New South Wales (NSW) were recognized after an eighteen-year legal case. This legal recognition represents a significant outcome for the Barkandji People because water and, more specifically, the Darling River, or Barka, is central to their existence. However, the Barkandji confront ongoing struggles to have their common law rights recognized and accommodated within Australian water governance regimes. Informed by literature relating to the politics of recognition, we examine the outcomes of government attempts at Indigenous recognition through four Australian water regimes: national water policy; native title law; NSW water legislation; and NSW water allocation planning. Drawing from the Barkandji's experiences in engaging with water regimes, we analyze and characterize the outcomes of these recognition attempts broadly as 'misrecognition' and 'non-recognition', and describe the associated implications for Aboriginal peoples. These manifestations of colonial power relations, whether intended or not, undermine the legitimacy of state water regimes because they fail to generate recognition of, and respect for, Aboriginal water rights and to redress historical legacies of exclusion and discrimination in access to water.

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Section: Discussionmentioning

confidence: 99%

Section: Case Study and Methodsmentioning

confidence: 99%

Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

2018

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“…15 Riparian rights to water are proprietorial, and therefore quite different from the right and respectful way of going about water. Property becomes an alienable thing as a matter of commoditised exchange, and the alienability of property under settler law is the condition, at the same time, of the 'thinging' of social relations.…”

Section: From Ethnography To Political Ecologymentioning

confidence: 99%

First law and the force of water: law, water, entitlement

Turner

Neale

2015

Settler Colonial Studies

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In this essay, the authors respond to several of the papers included in this special issue. First reflecting on the relation between waters, 'First law', 1 and settler law, the authors then draw connections between some of the contributions to the issue. Water, the authors contend, is a productive site for thinking through the organs and processes of settler law, though such attention, they argue, also reveals how the 'constitutional' question of waters is occluded by the presence and dominance of settler law. The final section turns to Aotearoa/New Zealand as a negative example of this situation, one in which the constituting force of waters is nullified by the incorporation of indigenous politics within the processes and institutions of the settler legal order.Settler Colonial Studies, 2015 http://dx.

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“…This challenge has been addressed in the natural sciences (Cooke et al, 2016;Nordhaus, 2008), social sciences (Dell, 2009;McGregor, 2018), and legal studies (Borrows, 2002a;Dellapenna & Gupta, 2009;Fisher, 2017), which indicate that relationships between nature and humans are imbued with social and material imbalance and toxicity. In the pursuit of remedying these relationships, some scholars have leveraged rights-based discourses to argue that a healthy environment is a human right (Hiskes, 2008), whereas others have shifted the location of rights to argue in favour of recognizing the inherent rights of nature (Burdon et al, 2015;O'Donnell & Talbot-Jones, 2018). The latter has gained social, political, and legal traction globally.…”

Section: Introductionmentioning

confidence: 99%

The River’s Legal Personhood: A Branch Growing on Canada’s Multi-Juridical Living Tree

Ambers

2022

TAR

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Relationships with rivers in British Columbia are often imbued with social and material toxicity. Learning from three sources of law in British Columbia—Indigenous, Canadian, and international law—this article draws out one potential remedy to the imbalanced relationships between humans and rivers through exploring the viability of declaring the rights of nature in accordance with the socio-cultural and doctrinal frameworks embedded in these three sources of law. By taking seriously storied precedents and governing practices from the ‘Namgis, Heiltsuk, and W̱SÁNEĆ Nations, this article is guided by their water relations, governance, and legal orders. In expanding Canadian conceptions of personhood, challenging anthropocentrism within section 7 of the Charter of Rights and Freedoms, and expanding section 35 constitutional protections, this article also leverages Canadian legal concepts and protections for remedying river relations. Drawing upon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) further guides the process of affirming the rights of rivers, especially in light of legislation that has codified UNDRIP domestically. Braiding these three sources of law indicates that subsequent rights of nature cases should be rooted in the interpretative and analytical framework of Canada’s multi-juridical living tree.

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Decolonising Indigenous water ‘rights’ in Australia: flow, difference, and the limits of law

Cited by 11 publications

References 0 publications

Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

Recognition of Barkandji Water Rights in Australian Settler-Colonial Water Regimes

First law and the force of water: law, water, entitlement

The River’s Legal Personhood: A Branch Growing on Canada’s Multi-Juridical Living Tree

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