In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.

Chapter 2 explores the tensions in debates about indigenous water rights in legal and political theory, setting up the key propositions for this book.I argue that legal and policy mechanisms that seek to recognise cultural relationships with water and involve indigenous peoples in water governance should strive towards recognising indigenous water relationships but, more importantly, indigenous water jurisdiction. This argument is central to the consideration of the four country studies included in this book, in which law and policy is sometimes able to provide a space for indigenous groups to exercise jurisdiction in planning and governing their water resources. I also contend that the reason states should provide for indigenous water rights is an imperative of distribution. Such rights are needed not only to remedy the historical injustice of non-recognition but because indigenous exclusion from water law frameworks is ongoing.

In chapter 3 I introduce the two key regulatory tendencies relevant to the consideration of indigenous water rights in comparative law in this book. One of these developments is the idea that governments should ‘commoditise’ the natural environment and use private property rights and market mechanisms in water regulation and allocation; an approach typically counterposed with the idea of treating access to water as a fundamental human right, entitled to all. The other is the tendency to devise new legal mechanisms like ‘legal personality’ to protect the ‘rights of nature’ and address social or community concerns around water governance and quality. Both trajectories play out repeatedly in debates about indigenous rights to water in comparative law, and resulting legal and policy frameworks in the country studies considered in this book. I argue that most regulatory frameworks are in fact a combination of public and private interests, and suggest that both private and public mechanisms may have a place in debates about how best to provide for indigenous water rights.

The first chapter introduces the problem to which the book responds: the ongoing exclusion of indigenous groups in many parts of the world from legal and policy frameworks determining the right to use water on their lands. The chapter presents the problem using academic and policy debates about indigenous water rights and the regulation of water while explaining how the comparative experiences considered in the book provide new perspectives on the reasons why indigenous water rights are needed, and the role law might play to provide for them.

In Chapter 6 I examine indigenous water rights in Colombia, specifically, the declaration by Colombia’s highest court that the Atrato River is a ‘legal subject’ in response to indigenous concerns about water management. This watershed case of November 2016 was an action for protection of constitutional rights brought in the Colombian Constitutional Court on behalf of a number of indigenous and afrodescendent communities, in response to serious environmental and humanitarian damage caused by illegal mining in the region of Chocó. I show in this chapter how the legal person model for the Atrato is adopted in recognition of the ‘biocultural rights’ of indigenous communities, but the approach is clearly not a complete answer to indigenous water injustice. Indigenous peoples also need substantive water allocations, in order to have a voice in decision making about river management and use. Yet, because the river is a subject it has representatives from the community, or guardians, and they have a voice on behalf of the river, where previously they had none. The Colombian case is highly significant, in that it underscores the strength of legal person models in creating new jurisdictions for indigenous peoples in which to participate in river sharing, governance and use.

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.

In Chapter 5 I consider water rights for Maori in Aotearoa New Zealand. Pursuant to a settlement between Whanganui Iwi and the Crown, made in 2017, the Whanganui River was recognised as ‘Te Awa Tupua’ (‘an indivisible and living whole, incorporating all its physical and meta-physical elements’), declaring the River to be a ‘legal person’. The arrangement accords certain guardianship and governance rights, but not property rights, to the Maori people that traditionally owned the River. However, Maori continue to agitate at a national level, both politically and before courts and tribunals, for the right to ‘own’ their water resources, amid cautious government plans for water law reform. The New Zealand study raises interesting questions about the nature of water in law; as a private right to be held and allocated, or a public interest incapable of ownership. Maori are seeking both recognition of their distinctive water relationships and influence and control over water governance and a substantive share of the consumptive pool of water for any purpose including economic development. The study of Maori rights to water in this chapter demonstrates the variability of indigenous water demands, and a need for multifaceted responses to indigenous water exclusion.

Chapter 7 examines indigenous water rights recognition and distribution in Chile. In this chapter I discuss the recognition of the ancestral water rights of indigenous peoples under the Indigenous Law and the creation of an Indigenous Land and Water Fund for the acquisition of rights in the market. I argue in this chapter that the recognition of ancestral water rights an incomplete response to the ongoing exclusion indigenous peoples experience from rights allocated within water law frameworks, because it continues to exclude groups that have lost water access to other users.The Fund, by contrast, specifically responds to the situation where indigenous peoples have been unable to continue to exercise their water rights. In the case of water resources already fully allocated to others, the Fund finances the purchase of water use rights in markets for redistribution to indigenous landholders.An interesting lesson from the Chilean experience is that market mechanisms may in some situations be a ‘creative’ response to the injustice in water rights distribution.However, by setting aside a share of water use rights before water resources are already fully allocated, governments reduce the cost of buying-back water use rights for allocation to indigenous peoples in the future.