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date: 26 May 2018

Indigenous Peoples and Water Justice in a Globalizing World

Abstract and Keywords

Indigenous peoples confront challenges that constrain their ability to bargain for secure and remunerative livelihoods based on water and to participate in decisions that govern water allocation, use, and management. Water governance systems at all scales have failed to provide sufficient recognition, respect, and autonomy for indigenous laws, values, aspirations, and water-use practices and continue to discriminate against indigenous norms. Describing the water injustices experienced by indigenous communities, this essay charts the means by which indigenous peoples assert their water rights and interests in water governance. It provides a globalized account of water justice by analyzing the character of justice claims articulated by the emergent indigenous water-justice movement using Nancy Fraser’s multidimensional formulation of justice. Indigenous articulations of justice and demands for redistribution, recognition, and representation call for equal weight to be given to the socioeconomic, cultural, and political causes of water injustice and strategies for change.

Keywords: indigenous communities, indigenous norms, water governance, water-use practices, water justice, water allocation, water rights

Introduction

By virtue of their marginal political position and disadvantaged economic status, indigenous peoples have relatively restricted access to productive water resources and are especially vulnerable to water injustices. Indigenous peoples confront challenges that constrain the ability to bargain for secure and remunerative livelihoods (Baviskar 2005) and to participate in decisions that govern water allocation, use, and management (Boelens, Getches, and Guevara Gil 2010). This distinctive vulnerability affects the ways in which indigenous peoples are materially impacted by the environmental and socioeconomic costs and benefits of water resource development and supply systems, which are rarely, if ever, distributed evenly (Tinoco et al. 2014). It also affects individual and group perceptions and experiences of injustice, such as discriminatory, exclusionary, and disrespectful treatment of indigenous norms, values, and practices. Most of the world’s 370 million indigenous peoples are in this disadvantaged state, representing more than 5,000 distinct peoples living in more than 90 countries in all inhabited continents (Morse 2010).

This situation of persistent inequality, which is fundamentally rooted in colonial histories, explains lower levels of access to water sanitation services (Tinoco et al. 2014) and disparities in water services coverage between indigenous and nonindigenous peoples. In a recent review of the literature on indigenous peoples and water, sanitation, and hygiene services, Jiménez, Cortobius, and Kjellen (2014) observed that the existence of higher proportions of indigenous population correlates with lower levels of access to water. Barriers to accessing clean water, of either an economic or institutional kind, clearly jeopardize the health of indigenous peoples, which is reported to be alarmingly poor across the world (Jiménez et al. 2014). Systematic information on indigenous access to water services is not consistently available, and reviews of reports relating to the sanitation, health, and hygiene aspects of the Millennium Development Goals conclude that “indigenous people have neither participated in the elaboration of the reports, nor is their situation reflected in them” (Jiménez et al. 2014: 278).

The pattern of indigenous exclusion from basic water services is not confined to less developed countries: wealthy nations also fail to meet the universal imperative for water security. For example, more than half of the water systems supplying Canadian indigenous reserves provided water of such poor quality that they posed a medium or high risk to the community members they served in 2010 (Auditor General 2011). The water quality crisis in Canada is attributable in large part to unclear and overlapping political jurisdictions, which fail to provide an adequate regulatory framework for governing drinking-water quality on reserves and a legacy of contamination of reserve water supplies (Archer 2011; see also Patrick 2011; Walkem 2007; White, Murphy, and Spence 2012). Indigenous residents of reserves in this well-watered country “may still be years away from having drinking water protection comparable to what exists off-reserve” (Auditor General 2011: 18). Indigenous groups in the United States face similar challenges in accessing safe water on tribal reservations as a result of inadequate investments in infrastructure and regulatory systems, as well as physical constraints posed by the location and hydrological characteristics of reservations (Hausam 2012; White et al. 2012).

For these and many other indigenous communities throughout the world, unsafe water is not only a hazard to human and ecosystem health. It also represents a threat to highly valued water cultures—to ways of life and their constituent ontologies and cosmologies. Water is central to defining complex indigenous attachments to place (Aho 2009; Barber and Jackson 2011; Toussaint 2008), and so, for indigenous peoples, the contamination, diversion, and depletion of water bodies represents an attack on collective identities and survival as peoples. In these and other instances, drinking water connects indigenous bodies to infrastructure and governance (Budds and Sultana 2013): both the modernist system of governance that may be discriminatory or hostile to indigenous water rights and interests as well as local, indigenous customary systems of governance, in which water is conceived quite differently from dominant modern and technical conceptualizations (Aho 2009; Boelens 2008; Boelens et al. 2010: 12; Strang 2013).

Water is conceptualized by indigenous people from Australia, for instance, as socially unifying: its use and meanings create relationships, connections, and boundaries within and between groups that are mediated through local decision-making systems that include rights, responsibilities, and rules governing access and management (Jackson and Palmer 2012; Langton 2006). The creation stories told by indigenous Australians portray models of appropriate behavior toward water: one finds in these narratives implicit values about how water should be shared among all life forms and how, through that sharing, all life is interconnected (Barber and Jackson 2011; Jackson and Barber 2013; Weir 2009). Water is implicated in reciprocal, ethical relations that bind people and country, including the ancestral spirits that animate indigenous waterscapes. Religious obligations to protect and regenerate life are considered imperative under the customary laws1 of these and many other indigenous communities (Aho 2009; Morse 2010; Jackson and Palmer 2012; Langton 2006; Strang 2013).

The aims of this essay are to describe the water injustices experienced by indigenous people and the particular vulnerabilities they face; to chart the means by which they continue to assert their rights and interests in water governance; and to analyze the character of claims to justice in the emergent indigenous global water-justice movement. Social injustice is a pressing and prevailing concern of indigenous communities—for instance, in the unfair distribution of resource rights. The abiding commitment to self-identification and cultural distinctiveness evident in indigenous articulations of justice stems from experiences of cultural and symbolic forms of oppression. Indigenous peoples confront misrecognition, disrespect, and exclusion in the governance of water (Jiménez et al. 2014), and, in response, they demand cultural recognition, autonomy, and respect for indigenous laws, values, aspirations, and water-use practices.

The essay is structured as follows. In the next section, I introduce the tripartite schema of justice advanced by Nancy Fraser as a heuristic device for organizing and bringing together the diverse and interrelated dimensions of indigenous claims for water justice discussed throughout the essay. Key terms such as indigenous and indigeneity are then defined in the context of resurgent global indigenous activism. The section that follows describes the changes to indigenous water territories and waterscapes as a result of colonization and more recent transformations in governance. It also describes indigenous responses, primarily those directed at nation-state practices and legal institutions. In the final section, the discussion turns to the scale of global water governance and the role of indigenous water-justice movements and claims, covering the key sites of action and normative instruments, their scope and content, as well as a brief commentary on their role in the formation and reproduction of indigenous identities. The essay presents a globalized account of indigenous water justice by highlighting the domain of the political as a crucial one for indigenous peoples seeking water justice at all scales of governance, especially, and most recently, the international scale. Informed by Fraser’s political theory, it extends the notion of injustice beyond inequity in the distribution of environmental risks (like dams), or environmental goods such as water resources, to encompass the political structures that constrain or limit Indigenous participation in water governance. Efforts to address water injustices will therefore need to attend to the factors and processes that work at multiple scales not only to shape patterns of resource distribution but also to enable or constrain recognition, representation, and participation.

A Three-Dimensional Theory of Water Justice

Analyses of water justice have tended to concentrate narrowly on the pattern of water distribution between stakeholders as the measure of justice (see, e.g., Walsh 2011). Some scholars have expanded their focus beyond distributive justice and perceptions of basic liberties to include procedural justice in their analyses of water disputes (see Lukasiewicz et al. 2013; Syme, Nancarrow, and McCreddin 1999). Procedural justice concentrates on the features of a decision-making process that make it seem just to people vulnerable to the consequences of the decision (Syme et al. 1999).

Both approaches, however, rely on an incomplete picture of justice because they treat the individual and not the group as the pertinent subject of reference. Many of the justice claims currently advanced from within a human rights discourse manifest this kind of cultural bias, casting “the conversation about water and ethics within individualist, liberal, Western discourses” (Schmidt and Peppard 2014: 538). Recognition of the alternative metaphysical, ontological, and ethical claims made by indigenous peoples demands that attention be given to the cultural histories and theoretical presumptions about universality that underpin many of the current normative frameworks and attendant theories of justice (Jackson and Palmer 2015; Schmidt and Peppard 2014).

The legal claims, political and cultural aspirations, and water policy goals described throughout this essay can be readily aligned with the tripartite social justice schema proposed by Nancy Fraser (2005, 2009). Fraser calls for a three-dimensional theory of justice that incorporates the socioeconomic distributional dimension; the cultural dimension of recognition of diversity of participants and experiences in affected communities; and the political dimension of representation, which entails participation in political processes (Fraser 2009; Schlosberg 2004). Fraser’s (2009) justice schema provides a means of integrating concerns for socioeconomic redistribution and legal and cultural recognition in water governance with indigenous demands for access to the spheres of representation, in this case to participate as self-determining groups in the governance of water.

Traditional conceptualizations of justice have been predicated on unity, impartiality, commonality, and equity in the distribution of material goods (Young 1990). The demands of cultural and social groups for recognition of their difference have strained that formulation because cultural or symbolic forms of injustice are rooted in social patterns of representation, interpretation, and communication (Fraser 1995) and include being subjected to patterns of representation held by a majority culture that entail nonrecognition and disrespect. Political theorists such as Fraser (1995, 2005) and Young (1990) have established that “injustice, and part of the reason for unjust distribution, is a lack of recognition of group difference” and that this explains why some people receive more than others (Schlosberg 2004: 519). An example of such an injustice in the context of this essay is the invisibility of customary indigenous water uses and practices to the state’s water allocation mechanisms. Indigenous struggles “intimately join water rights to processes of identity formation” (Boelens 2008: 48), and culture is therefore a necessary site of justice that is closely tied to material inequalities (Fraser 2005).

Representation, Fraser’s third axis of justice (2005), has emerged as a central consideration with processes of globalization and its impact on how we conceive the modern territorial state. Arguing that justice theories need to appreciate the “relative autonomy of inequities rooted in the political constitution of society, as opposed to the economic structure or the status order” (Fraser 2009: 6), Fraser attends to the scope of the state’s jurisdiction and the decision rules by which contestation is structured (Fraser 2009: 17). The political dimension of Fraser’s justice theory is thus centered on issues of membership and procedure. For her, the political “furnishes the stage on which struggles over distribution and recognition are played out” (2005: 75).

It is no longer appropriate, therefore, to focus solely on the modern territorial state when thinking about justice issues, or to presume that the citizens of such states are the only relevant subjects of reference. As we will see, indigenous movements struggling for recognition or campaigning to expose inequitable patterns of access to water increasingly look beyond the territorial state to transnational and international arenas, linking local water challenges to campaigns to reform the norms of international indigenous rights, human rights law, and water policy. By engaging with the World Water Forum, for instance, indigenous peoples are building transnational publics from which to mobilize international opinion that will influence international aid agencies and state water management authorities, among others.

Indigenous Peoples and Indigeneity

In providing a global perspective, as well as some specificity to the consideration of a set of issues pertaining to many distinct cultural and political groups, it is necessary to give close attention to the term indigenous and to indigeneity as a geocultural category (Merlan 2009; Niezen 2003). Indigenous claims to justice are made on the basis of a shared experience of domination and oppression and in reference to sets of values, practices, and social institutions that distinguish them from other groups. What is meant, then, by the term indigenous, and can we identify a common set of ongoing problems that is central to the collective demands of indigenous groups?

A variety of claims and diversity of experiences have been associated with the term indigenous as a result of the resurgence of an international social movement with a “strategic focus outside of states that seeks to activate rights to autonomy within states” (Niezen 2003: 136). Within the discipline of anthropology especially, much scholarly discussion about the construction of indigeneity at global and local scales has taken place (Trigger and Dalley 2010). In light of this essay’s focus, it is interesting to observe that water resource disputes, especially surrounding dams and hydropower plants (see Jiménez, Molina, and Le Deunff 2015), appear in the scholarly literature as a key vehicle through which indigenous groups engage in processes of self-identification and positioning to gain their own ends and, in doing so, cause a change in ways of conceiving indigeneity (Baviskar 2005; Li 2000; Minde 2001).

The term indigenous, argues Merlan (2009: 303), “presupposes a sphere of commonality among those who form a world collectivity of ‘indigenous peoples.’” Yet it is not a designation with a fixed, natural set of referents, and some scholars have contested its universal sociological validity (Baviskar 2005). A commonplace meaning of the adjective indigenous refers to originating or being native to a particular place (Weissner 2010: 7). Indigeneity references a mode of belonging, which suggests binding connections between group and locality and “deeply felt processes of attachment and identification” (Merlan 2009: 303).

The United Nations Working Group on Indigenous Populations “propose[s] some set of criteria, or conditions, that enable identification of the ‘indigenous’ as a global kind” (Merlan 2009: 305). These characteristics now form the basis of the commonly cited understanding employed here: self-identification; common ancestry and historical continuity with precolonial and/or presettler societies; special relationship with ancestral lands; distinctiveness (of language, culture, beliefs, and customary law); formation of nondominant groups within the current society; and perseverance to maintain and reproduce ancestral environments (Weissner 2010: 7).

Threats to Indigenous Waterscapes and the Emergence of an Indigenous Water-Justice Movement

The previous section highlighted common characteristics germane to a discussion of water justice, including collective rights, shared histories of displacement and dispossession, embedded socioecological relations, and the need for protection and reproduction of sociolegal norms of resource management and local knowledge systems. This section presents a review of the key changes experienced by indigenous peoples seeking to maintain customary forms of governance and management, including communal tenures and culturally distinct water ontologies, in the face of settlement and development processes that have dramatically transformed the waterscapes of their territories. It also outlines, briefly and in general terms, some of the means by which indigenous peoples have challenged government actions that degrade or diminish their waterscapes and indigenous efforts to seek recognition for their water rights and interests from nation-states.

Colonization disrupted and displaced indigenous communities and severely reduced their enjoyment of their water territories, depriving them of their own means of subsistence, interfering with lifeways and traditions founded on water cultures, destroying social institutions, and further eroding their political power to influence subsequent resource allocations (Aho 2009; Berry 2000; Boelens 2002; Boelens et al. 2012; Boyd and Boyd 2011; Gosnell and Kelly 2010; Lansing, Lansing, and Erazo 1998; Matsui 2009; Norman 2012, Walkem 2007; Weir 2009). The mechanisms driving these changes included alienation and dispossession of territory, imposition of new land uses, deprivation of liberty and autonomy, forced removal and relocation of indigenous people from traditional territories, and loss and degradation of aquatic environments.

In the United States, for instance, dams for irrigation and, later, hydroelectricity, flooded the valleys that were home to native tribes and the center for many important resources. Disruption and regulation of river flows affected many wildlife communities utilized by Indians and impacted regional fish migration patterns, including the carefully managed salmon runs that sustained the indigenous economies of the Pacific Northwest (Colombi 2005; Gosnell and Kelly 2010; Lansing, Lansing, and Erazo 1998; Perreault, Wraight, and Perreault 2012).

Groundwater extraction for mining and irrigated agriculture and the infilling of wetlands took their toll on the aquatic life of many other indigenous territories (Walkem 2007). In the Fraser River delta of Canada’s British Columbia alone, 80 percent of wetlands have disappeared (Boyd 2003). In this region, much of the material needed for weaving, wild rice cultivation, and other indigenous household items comes from wetlands (Matsui 2012). Commercial fishers competed with indigenous fishers such as the Maori of New Zealand who, over time, found it harder and harder to gather valued food species from water sources that were under pressure from industrial pollution and regulation (Aho 2009). In many colonial contexts, regulations on harvesting and restricted access to private property further inhibited peoples’ ability to exercise traditional resource rights and to pass knowledge on to subsequent generations.

As physical changes to land and water systems marginalized indigenous peoples from their waterscapes, so too did the many institutional transformations that accompanied colonization and associated processes of modernization and structural change. Water became a fundamental component of the mining, agricultural, and industrial development of the colonies of the United States, British North America, Australia, New Zealand, and some countries in South America. As Matsui (2009: 6) notes in relation to British Columbia: “the codification of land and water rights became an integral part of the colonial process.” Powerful stakeholder groups exerted pressure on those designing, or rather imposing, new property-rights regimes that would ensure their interests were reflected in access arrangements and in the water management institutions that subsequently evolved. Prior appropriation, the system of water rights established in the American West, “almost exclusively benefitted ‘white’ agricultural irrigators, urban settlers and the mining industry” (Tarlock 2010: 472). Tarlock (2010: 473) notes that “it did not benefit fish, which can serve as proxies for both the health of aquatic ecosystems and the health of Indian tribes.”

In colonial Australia during the nineteenth century, farmers and graziers effectively lobbied for a restructuring of water rights that laid the foundation for today’s water laws. The changes entailed the abandonment of British common law riparianism, the nationalization of water by transferring rights in natural water to the Crown, the establishment of a system to license private diversions, and state investment in major irrigation schemes (Harris 2007). These changes cemented the dispossession of indigenous Australians by allowing for the intensification of land and water use and the accelerated, closer settlement of the hinterland. As landless peoples, with no recognized native title and no government-endorsed treaties or settlements, the indigenous communities found their rights and interests completely overlooked in the founding of Australian water law (Jackson 2011). The system of common-law private water rights that was instituted on settlement in New Zealand (Aho 2009) is another case in point. In these and other colonies, the preexisting customary uses and communal systems of decision-making were neglected or marginalized by imperial institutions and agents (Anderson 2006; Berry 2000; Boelens et al. 2010; Budds and Hinojosa 2012; Garry 2007; Lutz 2006; Perreault et al. 2012).

Indigenous cultures, peoples, and their values persisted in the face of colonial onslaughts, and resilient systems of customary law rendered the occlusion of indigenous water rights incomplete. Both American and Canadian federal officials of the early twentieth century, for example, recognized the great importance of indigenous water rights (Anderson 2006; Lansing et al. 1998; Matsui 2009). In the twentieth century, sufficient supplies of water were considered essential to the racial project of assimilating indigenous populations as yeoman farmers, a policy widely pursued in many of the regions colonized by the British (Matsui 2009). Matsui’s (2009) study of the history of native water rights issues in western Canada reveals that colonial interventions failed to annihilate indigenous agency in the variegated struggles over land and water. A native water-rights discourse evolved over time through interaction with and contestation over settler ideas about property and agrarianism. Colonial water cultures thus became entangled as indigenous residents of Canadian and American reserves and their leaders played a major part in managing water use and agricultural development and in resisting developments that were not in their interests (see Lansing et al. 1998). American jurisprudence recognized Indian water rights in the 1908 Winters case, but it was a “legal backwater” that delivered little benefit to tribes until the 1970s (Tarlock 2010: 471).

The extant indigenous water-based economies were severely affected by these hydrological and socioeconomic changes (Berry 1997, 2000; Matsui 2009; Norman 2012; Perreault et al. 2012). Pecos (2007) tells the history of the Cochiti Dam in New Mexico from a Pueblo perspective, recounting the way in which that dam put under water both sacred places and those agricultural lands of the Cochiti Pueblo that had survived hundreds of years of territorial appropriation. Upon construction of the dam by the US Army Corps of Engineers in 1965, Pecos says (2007: 646), “we lost our way of life literally overnight. A way of life our people had known since time immemorial was now gone. Our entire ceremonial calendar was tied to it.”

Although there is a relatively large body of literature on indigenous water-related issues in “high-income countries” (Jiménez et al. 2014: 288), where indigenous peoples tend to comprise a minority among the settler polity, water-rights conflicts have occurred throughout the colonial history of many other places as well and are manifest today in countries with relatively large indigenous populations. Upon the colonization of Chile, for example, the Spanish brought “no special regard for ancestral farming practices” (Madaleno 2007: 195) and, in their imperial pursuits, appropriated water at the expense of local irrigation communities for whom water rights formed part of common ownership regimes. The practice of privileging state-supported actors such as mining companies continued through Chile’s three generations of water reform, culminating in the 1980s’ Third Water Code, which introduced tradeable rights to water and severely impacted the region’s traditional economic sectors.

Indigenous peoples are now pursuing numerous legal avenues to have their rights to water recognized and to challenge state and private sector actions that diminish or degrade their waterscapes. In these efforts, they confront legal systems that fail to recognize explicitly or respect indigenous rights, or that define those rights—for example, by neglecting group or communal customary legal rights or precluding commercial gain from the exercise of customary water rights.

Indigenous water-management rules and rights are rarely recognized in national legislation and policies that govern water distribution and development decisions. In fact, they are often legally and materially discriminated against (Boelens 2002, 2009). Burchi’s (2011) overview of international trends in recognizing customary water governance concludes that laws are more likely to treat customary rights and interests superficially than equally.

The refusal of provincial governments in the United States and Canada to honor reserve water allocations established under treaties, and even to cancel them outright, is a stark example of the continuing subordination of indigenous water rights in many places (Walkem 2007; see also Matsui 2009). Indigenous lawyer Linda Aho (2009: 285) describes the experience of Maori people of New Zealand:

Over time a raft of policies was employed and legislation passed by parliament in the name of development and the national interest which did not take into account Maori understandings of the river and its ecosystems, nor their rights, interests, or authority. Excluded from decision-making processes, Maori have long brought matters to the attention of the courts by using any basis to assert our rights and interest, and to have our concerns about the deteriorating health and well-being of our rivers taken seriously. The search for redress has been relentless.

Elsewhere, indigenous people, legal experts, and policymakers are pressuring national and provincial governments to find the means to protect water and indigenous rights to use, control, and manage it (Burchi 2011; Morse 2010; Ruru 2009; Tan and Jackson 2013; Walkem 2007). In a number of South American countries, indigenous communities have resisted the denial of water rights by, and the validity of historical water uses of, state agents, agrocommercial enterprises, mining companies, hydropower stations, and other powerful interest groups. In the Andean waterscapes, where there have been thousands of disputes over access to water, “control over water management is intensifying every day” (Boelens 2008: 50), with conflict reaching the scale and intensity of the Bolivian “water wars” of 2000. In that case, protests by indigenous and peasant irrigators claiming “cultural rights” to water brought the city of Cochabamba to a standstill and forced the Bolivian government, which had been implementing water privatization and marketing policies, to rescind the concession it had granted to Aguas del Tunari, a subsidiary of the US-based firm Bechtel (Perreault 2008).

As a result of these interrelated legal obstacles, indigenous rights and interests remain undefined and unresolved in many places, leaving indigenous people vulnerable to “being trumped by other competing interests” (Jackson 2011; Ruru 2009: 242). A recent global study of conflicts between extractive and energy industries, governments, and indigenous peoples suggests that large-scale development projects have become one of the greatest challenges to the exercise of indigenous rights (Jiménez et al. 2015).

The current Maori situation is exemplary. In 2012, in response to the New Zealand government’s decision to sell shares in state-owned hydropower generation companies, the Maori Council filed two claims with the Waitangi Tribunal, the body established in 1975 to hear grievances held by Maori in regard to the Waitangi Treaty of 1840. The Maori Council argued that the government’s decision prejudiced Maori water rights. In the Tribunal’s non-binding decision, Maori were found to have a residual proprietary interest in water, but the matter is yet to be resolved to the satisfaction of Maori communities (Ruru 2009, 2011). The sale of the hydro power shares was allowed to proceed despite Maori appeals to the New Zealand High Court. The New Zealand government maintains that legal uncertainty represents an opportunity to develop new, more inclusive models of water management and allocation. However, according to Ruru (2011), an exclusive focus on management models has come with a government refusal to address possible Maori commercial and proprietary redress for water (Ruru 2011).

In the Andes, Boelens (2009) sees an ambivalent and problematic politics of recognition at play in that region’s many water-rights disputes. New laws, including those pertaining to indigenous rights and protection of water, still constrain collective systems, recognizing them only insofar as they pose negligible competition to previously recognized and privileged private users. Furthermore, these laws and practices try to fix or codify diverse and dynamic water-use practices, very often on the basis of essentialized and simplistic understandings and with the objective of delivering legal certainty to developers (Boelens 2009).

In Canada and Australia, indigenous groups are pursuing opportunities provided by native title-rights frameworks (O’Bryan 2007; Tan and Jackson 2013). However, these provide a weak platform from which to assert legal water rights, and little progress toward this end is reported in the literature. Treaty rights are another avenue available in those countries where treaties were signed, such as New Zealand (Aho 2009; Ruru 2009, 2011), the United States (Anderson 2006; Tarlock 2010), and Canada (Matsui 2009; Morse 2010; Walkem 2007). Treaty rights have provided more justice to indigenous groups in the United States than native title rights have delivered to indigenous Australians, according to Tarlock (2010). In the United States, litigation has resulted in more than twenty settlements of Indian water-rights controversies and, in 2006, approximately twenty-seven native tribes were involved in nineteen settlement negotiations to resolve outstanding claims and breaches of treaty rights (Anderson 2006). Tribal interests now include the right to a share in the available water flowing through or under a reservation for the same utilitarian purposes available to non-Indian water users, and there is increasing recognition of the need for water to support tribal “symbolic, religious and lifestyle” values (Tarlock 2010: 473; see also Bark et al. 2012). Similarly, many Canadian treaties contain the provision that indigenous peoples will be able to sustain themselves on reserved lands, assuming therefore the full protection of the water required to fulfill the terms of the treaty (Walkem 2007).

As mentioned above, claims concerning water resources have been made in New Zealand (Aho 2009). This avenue has on a number of occasions allowed Maori to use special legislation arising from treaty rights to considerable effect, enabling them to restore and co-manage some of New Zealand’s major rivers (Ruru 2009, 2011). In one case, the Waitangi Tribunal recommended that Maori custodians play a determining role in management of the country’s longest river, the Waikato.

In Australia, a nation that did not settle a treaty with its first peoples, the native-title framework has so far failed to realize the benefits expected by indigenous communities, particularly with respect to economic access and gain (Godden and Gunther 2010). Indigenous people have turned to national water policy and state water law in their quest for specific allocations to redress the transparently inequitable distribution of water entitlements as well as the degradation of water bodies (Behrendt and Thompson 2004; Godden and Gunther 2010; Jackson and Langton 2012). A comparison of indigenous land ownership and water entitlements demonstrates the extent of the inequity: indigenous people own approximately 20 percent of the country’s land mass, but their specific water entitlements are at present estimated at less than 0.01 percent of Australian water diversions (Jackson and Langton 2012).

Other sources of recognition and protection can be found in international law and water policy (Jiménez et al. 2014; Jiménez et al. 2015), which is attracting heightened political attention from indigenous activists and supporters, particularly when domestic legal regimes are indifferent to indigenous claims. The United Nations General Assembly’s (2010) Declaration on the Human Right to Water and Sanitation, adopted in 2010, is a case in point. Specifically, the resolution “declares the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” The declaration has been of strategic value to the San and Bakgalagadi people of Botswana, enabling them to leverage a guarantee from the national government of a right to water and maintenance of traditional livelihoods in the Central Kalahari Game Reserve (Morinville and Rodina 2013). The right to water was deployed to hold Botswana accountable for living up to its human rights obligations, in the absence of a constitutional provision guaranteeing the human right to water at the national scale.2

Human-Rights Norms and International Recognition of Indigenous Water Rights: Claims for Political Justice

The past two decades have seen increased attention to the subject of indigenous water rights and interests in international law and global water policy fora (Morse 2010). In the global governance of water, there are now numerous initiatives, such as legal instruments and norms, that reinforce recognition of indigenous rights and interests (Gupta, Hildering, and Mesiedjan 2014). For example, the International Law Association’s 2004 Berlin Rules pertaining to the use of international rivers include a statement about indigenous rights (Article 20). By engaging with and sometimes participating in these initiatives and institutions, advocates and their supporters have effectuated significant changes in constitutions, statutes, regulations, case law, and other state practices affecting indigenous lives (Weissner 2009). They have also constructed more transparent and accountable political spaces from which to remedy or prevent injustice in water access, distribution, and control.

International arenas such as the 2000 World Commission on Dams (WCD) brought global attention to the adverse impacts of large-scale water distribution systems on indigenous peoples, especially large impoundments. The WCD highlighted the disproportionate displacement of indigenous peoples and ethnic minorities. According to Johnston (2010), the WCD did more than just publicize the negative social impacts of dam construction and promote mechanisms to remedy outstanding social issues. By stressing a rights-based approach to water resource decision-making, it also “served as a catalyst in social movement formation and a force that expanded rights-protective space for dam-affected communities to negotiate an equitable involvement in development” (Johnson 2010: 341).

Although the WCD’s recommendations were not actively adopted by international financial institutions such as the World Bank (McDonald-Wilmsen and Webber 2010), increased awareness of dam impacts has strengthened local and regional movements such as the Movement of People Affected by Dams in Brazil, the African Rivers Network, and the Latin American Network Against Dams and for Rivers (Martinez-Alier et al. 2014). Such groups continue to oppose the numerous mismanaged dam-induced displacement and resettlement practices such as the Tipaimukh high dam in India and the Belo Monte dam in Brazil (McDonald-Wilmsen and Webber 2010).

Some commentators have been critical of what has been achieved by the application of human rights norms such as the WCD, international conventions, and declarations to water policy and development processes. Gupta et al. (2014) identify six weaknesses in the international legal frameworks that they argue serve to undermine indigenous peoples’ enjoyment of water rights. A key shortcoming is the lack of enforceability, which allows states to engage in “rule-shopping” to “find the best set of rules for themselves at the cost of the indigenous people and the sustainable management of their resources” (Gupta et al. 2014: 31). Cariño and Colchester (2010: 426) argue that responses from state and international institutions “generally fall short of indigenous peoples’ demands for adequate human rights safeguards,” some of which are described below.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, is the most significant manifestation in international law of the recent trend to recognize indigenous rights, including in relation to water. The UNDRIP attempted to respond to five basic claims of indigenous peoples: (a) traditional lands should be respected or restored, as a means to their physical, cultural, and spiritual survival; (b) indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality; (c) they should have access to welfare, health, educational, and social services; (d) conquering nations should respect and honor their treaty promises; and (e) indigenous nations should have the right to self-determination. Cultural difference provides the context within which indigenous peoples’ claims to self-government arise (Weissner 2009).

The declaration was intended to frame and strengthen the rights of indigenous peoples and to set benchmarks for change in domestic regimes (Merlan 2009). Rights included in the UNDRIP have acquired the status of customary law according to some scholars, thereby making them legally binding (Gupta et al. 2014). Indigenous persons and peoples are now regarded as “collective actors with distinct rights and status under international law” and “discernible patterns of responses and normative understandings have emerged at the international level in respect of Indigenous peoples” (Weissner 2010: 2).

The UNDRIP took shape during a period in which human rights law was rapidly advancing. Indigenous people contributed as direct actors in the United Nations human rights discourse and other international fora, which “created a space for them to move an agenda of promoting and encouraging respect for their human rights within this formal international organization, including the collective rights to their culture, their land, and self-government” (Martinez-Alier et al. 2014; Weissner 2010: 2).

According to the UNDRIP, indigenous peoples have a right to, inter alia,

  • maintain and strengthen their spiritual relationship with their traditionally owned territories and waters (Article 25); and

  • approve the commercial use and development of water on their traditional territories (Article 32.2).

Rights to water are seen as an incident of the principle of self‐determination, a principle at the forefront of international indigenous law. The principle of free, prior, and informed consent is identified by indigenous peoples as a requirement and manifestation of their right to self-determination (Human Rights Council 2010). This consent mechanism, referred to in the UNDRIP, established the framework for consultations in connection with the development, utilization, or exploitation of mineral, water, or other resources that affect indigenous peoples (e.g., resettlement) and any related negotiations pertaining to benefit sharing and mitigation measures (UNDRIP 2007). The importance of the principle of free, prior, and informed consent had emerged as a major theme in recommendations of the World Commission on Dams and is reflected to some extent in the evolving policies of international financial institutions and development agencies such as the Asian Development Bank and the Inter-American Development Bank. The latter organization, as well as the World Bank, now require special safeguards for indigenous peoples in projects that affect their traditional lands, territories, and resources, reflecting legal norms including ratified international treaties (Cariño and Colchester 2010; Human Rights Council 2010). Based on their global review of water conflicts involving the extractive sector and Indigenous peoples, Jiménez et al. (2015) observe that instruments such as the consent provisions of the UNDRIP have so far failed to prevent or resolve conflicts that have in fact been increasing in number and intensity the past two decades. Genuine acceptance and practical implementation by private-sector parties and state actors appears to be elusive (Jiménez et al. 2015).

The principle of permanent sovereignty over natural resources, including water, is also an integral part of the right of self-determination (Human Rights Council 2012). This principle reflects the widespread and now well-reported criticisms leveled by indigenous peoples of unsustainable types and rates of development that undermine and may well eradicate traditional modes of production.3 The United Nations Permanent Forum on Indigenous Issues proposes several solutions that include

promoting self-determination through collective economic activities, maintaining the integrity of indigenous governance, implementing models of development where the intended outcome is considered in terms of improving the quality of life, enriching the notion of balance with Mother Earth, and promoting spiritual practices and the knowledge institutions of indigenous peoples.

(Human Rights Council 2012: 6)

These are the precise sorts of measures called for in the landmark Indigenous Peoples Kyoto Water Declaration (2003) delivered at the Third World Water Forum. The declaration articulates a reverence for life-giving force of water and specifically affirms indigenous peoples’ “relationship to Mother Earth and responsibilities to future generations.” It states that “we recognize, honor and respect water as sacred and sustaining of all life.” Consistent with the UNDRIP, the Kyoto Declaration asserts, inter alia, a right to “freely exercise full authority and control of our natural resources including water.”

A parallel Indigenous Peoples Forum held at the Fourth World Water Forum in Mexico City produced the Tlatokan Atlahuak Declaration (2006). Again prepared by indigenous participants, this new document reaffirmed the Kyoto declaration and emphasized that “for all Indigenous peoples of the world, water is the source of material, cultural and spiritual life” (in McGregor 2012). The World Water Forum in Istanbul (2009) has continued the practice established in Kyoto of inviting indigenous participation.

Conceptualizing Indigenous Claims for Water Justice: Redistribution, Recognition, and Representation

Thus there are many facets to indigenous claims and aspirations: equity of access to water, recognition of distinct water traditions and cultures, affirmation of the value of dynamic, localized institutions for making decisions about water, and expectations for fair participation in wider, multistakeholder processes of water governance. In the work of political theorists Nancy Fraser and Iris Marion Young we have the theoretical resources to make sense of these complex and interrelated notions of water justice, particularly the locally based micro-politics that are increasingly linked to and influenced by international action and globalizing forces.

In addition to drawing attention to legal inequalities and discrimination and affirming norms of international law, indigenous water-justice movements mobilize a global identity community that calls for parity of participation in the political arena. The controversy over Norway’s Alta River hydroelectric project in the 1970s illustrates this point clearly. Before the culmination of the Alta conflict (1979–1982), which entailed the construction of a dam across the Alta-Kautokeino River, none of the Nordic states treated the Sami as peoples with special rights and no indigenous organization was heard in the United Nations system (Minde 2001). The dam across the river canyon, construction of a road across reindeer grazing and calving areas, and the proposition that a Sami village be submerged were all vehemently opposed by Sami and environmental organizations. At its peak the protest represented the largest civil disobedience action in Norway after World War II.

Sami mounted legal challenges and undertook hunger strikes, which attracted international attention, including from the United Nations Human Rights Committee, the monitoring body for the International Covenants on Civil and Political Rights, and criticism from international indigenous alliances (Minde 2001). This conflict prompted the United Nations to question the legal position of Sami for the first time in Norway’s history (Minde 1996). Sami and Norwegian politicians subsequently played a significant role in the development of the rights of indigenous peoples, bringing forward the establishment of a United Nations working group on indigenous peoples, a development Minde (1996: 273) describes as a watershed for the indigenous movement. The Alta dam was an “embarrassing situation” that precipitously triggered the inclusion of indigenous peoples into the United Nations system (Minde 2008: 67). Norway developed new ways of working with Sami, including establishing a Sami Parliament and changing the Norwegian constitution.

Representation as a dimension of justice is also sought at scales smaller than the nation-state—for example, in catchment water-allocation processes and regional decision-making structures (see Hausam 2012; Norman 2012). Jackson and Barber (2013) applied Fraser’s social justice framework to a water allocation dispute in north Australia, where indigenous peoples comprised approximately 75 percent of the regional population and owned a similar proportion of the region’s land yet were due to receive a far smaller share of economically valuable water rights from a water-sharing process. In this case, indigenous claims for equitable distribution of water entitlements (representing what Fraser [1995: 71] calls the “social politics of equality”) came with an expectation of state recognition of customary systems of water governance, including indigenous environmental philosophies (representing the cultural politics of “identity, difference and recognition” [Fraser 1995: 71]) and parity of participation in state water-governance arrangements (representing Fraser’s political dimension).

Jackson and Barber (2013) showed that lack of respect for and recognition of cultural practices affected group standing and participation in the political processes—in this case, the development of a water plan that influenced the distribution of valuable water resources. Water allocation planning, therefore, needed to attend simultaneously to the socioeconomic, cultural, and political dimensions of water justice. Fraser’s (1995, 2009) justice schema was found to be well-suited to an indigenous context where advocates had a conceptualization of justice that was broader than achieving equity and parity among all Australians and which included access to decision-making and influential forms of representation.

Conclusion: Reinforcing Economics, Politics, and Culture

Claims for recognition complicate redistributive struggles. As a result, water management practices such as allocation planning and ecological and hydrological assessments must allow for the actualization of complex and distinct indigenous values if they are to avoid escalating conflict over resource management decisions (Finn and Jackson 2011; Jackson, Finn, and Featherston 2012; Jackson et al. 2015). Doing so requires a move from token acknowledgement of cultural difference to the appropriate resourcing of long-term processes that maintain, affirm, and, in some cases, restore and enhance both indigenous relationships with water and water bodies and the valorization of indigenous identities and knowledge in water-governance institutions (Bark et al. 2012).

The mutual reinforcement of economic, cultural, and political dimensions is undoubtedly feasible. There is evidence, for instance, that strong water rights can empower indigenous groups to undertake river restoration and protection activities (Boyd and Boyd 2011), in turn allowing for expressions of identity and articulations of group values. Restoration of riverine environments through removal of dams and recreation of fish habitat in the United States’ Pacific Northwest shows that these environmental actions are also acts of self-governance, carried out within a process of indigenous nation-building. In the case of the Klallam of Washington State, who are involved in one of the largest dam removal and environmental restoration projects ever undertaken in the United States, the restoration of tribal sovereignty has been intimately linked to the restoration of the Elwha River (Boyd and Boyd 2011: 398).

The discourse on environmental justice is taking up the challenge for a more pluralistic view of injustice experiences (Martinez-Alier et al. 2014; Perreault et al. 2012; Schlosberg 2013). It has moved the construction of injustice beyond inequity in the distribution of environmental risks (such as dams) to encompass studies of the political structures that generate injustice through their effect on participation at all scales, especially the global scale, as well as cultural processes that oppress and dominate, such as disrespect and misrecognition (Schlosberg 2004, 2013). Responding to the prominence of cultural difference and identity in social conflicts, a small number of analyses of water conflicts have expressly integrated theories of recognition and concerns of justice that are applicable to groups rather than individuals, which has traditionally been the liberal frame of reference for the conception of justice (Boelens 2008; Islar 2012; Jackson and Barber 2013; McLean 2007; Perreault et al. 2012)

The analytical model designed by Fraser (2005, 2009) to articulate representation, recognition, and redistribution is a valuable means of abstracting the different elements and workings of today’s politics of indigenous water rights as part of a schema of injustice where the cultural, political, and socioeconomic forms “systematically disadvantages some groups of people vis-a-vis others” (Fraser 1995: 72, 2005). Fraser’s formulation is particularly relevant to the global indigenous movement, one in which elements of equity, recognition, and participation are “intricately woven together” (Schlosberg 2004: 527).

Breaking the binds between economic disadvantage, cultural disrespect, and misrepresentation will indeed be difficult, particularly in settler societies where land and water governance systems have their origins in processes of indigenous dispossession, disenfranchisement, and eradication of cultural difference. It will therefore be necessary to continue to examine the multitude of ways in which these forms of justice are entwined and correlated. With such an understanding, indigenous groups and their supporters will be better equipped to explore the ways in which water-justice struggles can support and reinforce cultural recognition and socioeconomic equality while simultaneously advancing claims for parity of participation in the increasingly globalized political procedures that stage and resolve contests in both the cultural and economic dimensions.

Acknowledgments

This review was supported under Australian Research Council’s Future Fellowships funding scheme (project FT130101145). The views expressed herein are those of the author and are not necessarily those of the Australian Research Council. I am grateful to Lisa Palmer for her comments on a draft of the essay and to the editors for their helpful suggestions.

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Notes:

(1) Burchi (2005: 1) defines customary law as “law and rules based on long-standing practice, not codified in written form.”

(2) Morse (2010: 257) argues because a human right to water can be found to exist under international law, “one can rationally make the connection that there also exists an Indigenous right to clean water. Alternatively, Indigenous peoples may seek to assert a distinct and unique right to water as Indigenous peoples that is not tied to general human rights principles.”

(3) See, for example, the Cochamba Peoples Agreement (https://pwccc.wordpress.com/2010/04/24/peoples-agreement/) and the Universal Declaration on the Rights of Mother Earth (http://therightsofnature.org/universal-declaration/).