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Water sovereignty for Indigenous Peoples: Pathways to pluralist, legitimate and sustainable water laws in settler colonial states [1]
['Erin O Donnell', 'Melbourne Law School', 'University Of Melbourne', 'Melbourne']
Date: 2024-04
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.
Competing interests: The authors have read the journal’s policy and have the following competing interests: E.O. is a member of the Birrarung Council, a committee appointed by the state Minister for Water to represent the interests of the Birrarung (Yarra River). This does not alter our adherence to PLOS policies on sharing data and materials.
Funding: This study was financially supported by the Australian Research Council (
https://www.arc.gov.au ) in the form of a Discovery Early Career Researcher Award (DECRA) [DE230100622] received by EO. No additional external funding was received for this study. The funder had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.
Copyright: © 2023 Erin O’Donnell. This is an open access article distributed under the terms of the Creative Commons Attribution License , which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
1 Introduction
‘Water is inexpressibly sacred… water is life’ [1].
In settler colonial countries, the ‘fiction of first discovery’ that dispossessed Indigenous Peoples of their lands also took their waters [2]. Writing about Australia, Fletcher describes this as ‘one of the grandest acts of larceny ever committed: the theft of an entire continent’ [3]. Like land, water is central to Indigenous identity, with the relationship between people and place reflected in their laws [4]. In Australia, ‘Aboriginal identity is characteristic of water kinship’ [5]. In Aotearoa New Zealand, for Māori tribes and clans, ‘‘Ko wai au?’ asks who am I but more literally translates as ‘Who are my waters?’ [6]. In the USA, the Hopi Nation consider ‘water … as the essence of the sacred’ [7].
Indigenous Peoples continue to be largely excluded from water governance by settler state governments [8–15]. Indigenous communities are more likely to experience unsafe drinking water quality [16–19], as well as being excluded from holding rights to water for economic development [15, 20–22]. Impacts of this ongoing water dispossession have physical, mental, economic, cultural, and spiritual dimensions [23]. Mary Louie, Sylix Nation Elder, described the impacts of colonisation: ‘[i]t bothers me because our water is … disappearing because it’s not being respected… the water, they have feelings too’ (cited in [24]).
Indigenous Peoples continue to assert their sovereign rights to care for and manage their lands and waters. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) established that Indigenous Peoples have the right to use, own and control waters within traditional territories (art 26). However, effective translation of UNDRIP into domestic law has lagged. Within domestic jurisdictions, ‘Indigenous [P]eoples and communities actively contest the undermining and subordination of their water and territorial rights’ [12], with varying success [21, 25–27].
The necessity of recognising and restoring Indigenous water law and governance to its rightful place is traditionally framed as an argument of water justice [9, 27]. However, this continues to frame Indigenous dispossession as part of a ‘deficit discourse’ that continues to dominate water law and policy in settler colonial states today [28]. In doing so, there is a tendency for settler state governments to frame water justice as merely the right thing to do, rather than a necessity for their own legitimate and sustainable water management.
If, instead, we focus on Indigenous water law and governance systems themselves, what becomes visible is a system of water governance that has emerged from a deep relationship of reciprocity developed between people and place, underpinned by scientific observations, and which has supported thriving, prosperous communities for millennia [4–6, 27, 29–32]. In Aotearoa New Zealand, Māori management of the Waikato River provided ‘plentiful’ food sources as well as fresh, clean water and navigation up and downstream [33]. In both Aotearoa and Australia, fish and eel traps demonstrate sophisticated engineering efforts that enabled large volumes of food to be obtained, supporting large gatherings and trade [34–37]. The contemporary care and management of Gayini (in Australia’s Murray-Darling Basin) by Nari Nari Tribal Council demonstrates the power of Indigenous water governance, as Nari Nari restore the floodplain wetlands, reconnect people and place, and rebuild their cultural economies [38].
So, rather than solely focusing on the justice imperative, this paper asks: in what ways is settler state water law rendered less fit for purpose by this exclusion of Indigenous laws and Indigenous knowledges?
In this review, I focus on the water law and governance literature, identified using literature searches and citation tracing. As the majority of this literature is written by non-Indigenous scholars, I have not undertaken a systematic review, but rather, have sought out additional Indigenous voices, as both scholarly researchers and Indigenous community leaders, including published articles and academic books as well as grey literature. This approach highlights the radically different research agenda that Indigenous scholars are leading [27], and showcases the strength of Indigenous water laws and governance [4, 38–41].
I begin with the key themes of this review: (1) settler colonialism and Indigeneity, and (2) aqua nullius. I then use these to highlight a major weakness in the existing literature: inadequate analysis of and attention to the ways in which aqua nullius makes settler state water law unfit for purpose. To frame the identification of the problems for settler state water law (section 2) and the pathways to address these problems (section 3), I apply the Australian National Cultural Flows Research Project, an Indigenous-led project that identified law and policy reforms to address aqua nullius [42].
I also acknowledge that it can be difficult to challenge the settler state water hegemony from within the system. As Aunty Denise Lovett, Gunditjmara Elder, says:
‘How do we distinguish ourselves to not be the colonisers too? … How do we participate but not become them?’ (cited in [43]).
To improve water governance for all of us, we need new models of water governance that transfer power from the settler state to Indigenous Peoples, and this will require foundational reform of settler state water law.
1.1 Settler colonial states and Indigeneity Coloniality and colonialism are global forces affecting the relationships between people, place, and resources [44, 45]. In this review, I focus on settler-colonial states, where ‘the sense of belonging, home and place enjoyed by the non-Indigenous subject—colonizer/migrant—is based on the dispossession of the original owners of the land’ [46]. Indigenous Peoples today have endured a combination of both present-day impacts and historical impacts, combining to generate multi-generational trauma as a consequence of ongoing violent dispossession [47, 48]. Yet equally, Indigenous leadership resists assimilation, Indigenous laws remain, and sovereignty was never ceded [41, 49, 50]. In this review, I focus mostly on the English-speaking settler colonial states: Aotearoa New Zealand, Australia, the USA and Canada. These countries have key similarities in their common law legal frameworks and their settler state water laws, but there are also significant differences in terms of treaty and agreement-making with Indigenous Peoples. Aotearoa New Zealand’s founding documents are the Treaty of Waitangi (English)/Te Tiriti o Waitangi (te reo Māori), which play a central role in shaping contemporary Aotearoa New Zealand [29]. At the other end of the spectrum, Australia has no treaty with Indigenous Peoples, instead depending on the doctrine of discovery and terra nullius to justify the displacement of Indigenous rights and laws. Terra nullius is a legal fiction linked to the doctrine of discovery, in which ‘lands that were not possessed or occupied by any person or nation, or that were not being used in a fashion that European legal systems approved, [were deemed] ‘vacant’ and available for first discovery claims’ [2]. Despite their varied use of treaties, all four jurisdictions have relied on concepts of terra nullius in different ways [2].
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