Water sovereignty for Indigenous Peoples: Pathways to pluralist, legitimate and sustainable water laws in settler colonial states

Abstract

In settler colonial states, the doctrine of discovery that dispossessed Indigenous Peoples of their lands also took their waters. The original water theft of colonization was underpinned by the erroneous assumption of ‘aqua nullius’ and remains almost entirely unacknowledged and largely unaddressed. Scholarly literature has focused on the injustice of this water theft and the human rights of Indigenous Peoples (under UNDRIP as well as their human right to water). This review shows that aqua nullius also renders settler state water law not fit for purpose in two important ways. Firstly, the legitimacy of settler state water laws is contested, presenting a foundational challenge to water governance, and failing to acknowledge the plurality of water laws in settler colonial states. Secondly, settler water law is experiencing a more widespread failure to deliver ecologically sustainable water management. In responding to the injustice of aqua nullius, foundational reform of settler state water laws can enable the settler state to learn from Indigenous laws that have supported thriving communities and genuinely sustainable water management for millennia. Drawing on examples from Aotearoa New Zealand, the USA, Canada, and Australia, this review shows how acknowledging, and challenging, the false assumption of aqua nullius creates novel pathways for reform, enabling pluralist water laws and water governance models that improve both legitimacy and sustainability of settler state water governance.

Decolonizing Indigenous Drinking Water Challenges and Implications: Focusing on Indigenous Water Governance and Sovereignty

“…Attempting to impose a colonized Western Water governance system on (the community) or expecting (the community) to emulate the Water governance practices of a settler society have failed miserably over the last decades. These findings are consistent with [18,28,53,73].…”

“…Using the Water crises within a remote Indigenous community, Star Blanket Cree Nation, we highlight how Water governance and Indigenous sovereignty are interconnected. Evidence shows when we center Indigenous sovereignty and self-determination in Water governance; it moves the discussion beyond Water justice, where governments think allowing Indigenous People jurisdiction over their Water is the right thing to do, to seeing it as "a necessity for their own legitimate and sustainable Water management" [18] (p. 2). Studies show it is important to understand that "Indigenous Peoples being original inhabitants of the Land never consented or ratified European ownership of territory or sovereignty over them" [9] (p. 73).…”

Measuring First Nations Engagement in Water Governance in Manitoba

“…Indigenous-state relations in Canada are complex, contested, and contingent. While some Indigenous peoples-such as those in the northern territories and parts of British Columbia-are party to contemporary treaties, settlements, and agreements that articulate clearly the rights and responsibilities of the parties involved, other Indigenous peoples in Canada are not [9,21]. Most First Nations in the Canadian prairies are party to historic treaties with the Crown (Canada in lieu of the British monarchy), where rights and responsibilities are not explicitly described in contemporary legal terminology [22][23][24].…”

“…Starting with Canada's "highly decentralized federation" [8] (p. 277), government responsibilities and jurisdiction over water and the environment are divided exclusively between provincial and federal governments and within ministries and agencies, neglecting or overlooking Indigenous laws, rights, and responsibilities [9]. Decentralization not only enables contextualized approaches to, and innovation in, water and ecosystem management but also drives fragmentation.…”

“…Decentralization not only enables contextualized approaches to, and innovation in, water and ecosystem management but also drives fragmentation. The result is a patchwork approach to water management across Canada [10], with inconsistent and uneven inclusion and engagement of Indigenous people [9,[11][12][13][14].…”