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Review

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.

Citation: O’Donnell E (2023) Water sovereignty for Indigenous Peoples: Pathways to pluralist, legitimate and sustainable water laws in settler colonial states. PLOS Water 2(11): e0000144. https://doi.org/10.1371/journal.pwat.0000144

Editor: Majid Shafiee-Jood, University of Virginia, UNITED STATES

Published: November 21, 2023

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.

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.

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.

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].

1.2 Aqua nullius

‘All water is Aboriginal water’

(Traditional Owner, cited in [51]).

Settler colonial states have largely assumed the sovereign status to control the use and flow of water [13, 52–55], which Marshall defines as aqua nullius: ‘governments’ lack of inclusion of Indigenous water rights and interests [which] reconstructs Indigenous water rights as … ‘water belonging to no one”[5].

Aqua nullius is a global problem [27] that ‘not only makes Indigenous sovereignty over the waters of their ngurambang (Country) invisible, it obscures the depth and sophisticated expertise of Indigenous peoples’ management of rivers’ [56]. Moggridge describes a system of groundwater knowledge and care that extends back tens of thousands of years [39], enabling Indigenous Peoples to develop thriving, sustainable communities in dry regions of Australia. Indigenous First Law for water management is comparable to settler Australia’s National Water Initiative, but with greater emphasis on relationality, reciprocity, and healthy Country [4].

Aqua nullius enables state and national governments to ignore the multiple water laws, knowledges, and governance models that co-exist in settler colonial states because of enduring, unceded Indigenous sovereignty. Instead, settler colonial governance give preference to water rights and water management institutions that are ‘exclusively framed, enacted, and governed by state agents or market participants’ [13].

In Australia, aqua nullius is manifest in the provisions in almost all state and territory water statutes that assigns to the Crown the right to control water (South Australia is the sole exception]. In Victoria, section 7 (1) of the Water Act 1989 states that the ‘Crown has the right to the use, flow and control of all water in a waterway and all groundwater’. In 2002, the Australian High Court found that vesting of water in the Crown was ‘inconsistent’ with any native title rights to exclusive possession of inland waters (Western Australia v Ward (2002) 213 CLR 1, 152). Although native title in Australia may include rights to use water, these are largely limited to rights to use water for domestic, personal and communal needs, and do not include rights to manage waterscapes [57]. There is increasing emphasis on providing water for economic development, but so far very limited volumes have been provided [22, 43, 58].

In Aotearoa New Zealand, aqua nullius can be observed in the Crowns ‘considerable effort to vest ownership of water resources in itself’, in defiance of the spirit of the Treaty of Waitangi [59]. In the United States, the Winters’ doctrine largely limits Tribes’ water rights to those included in reservation grants, and is subject to a range of constraints, including lack of infrastructure to deliver water [25, 60]. This does not explicitly include water for cultural or ceremonial practices, nor does it guarantee a role in water management [30]. In Canada, the Crown reserved to itself the right to own water, so despite a combination of native title, treaties, and riparian rights, First Nations ‘are disproportionately plagued by undrinkable water [and] water resource management in First Nation communities has long been … controlled by state-led authorities’ [26, 61].

2 Aqua nullius causes problems within settler state water law

‘[I]t is our responsibility to heal our rivers and wetlands and reclaim our water rights’

(Taungurung Nation Statement [43]).

Aqua nullius and water colonialism not only ‘normalizes the dispossession of Indigenous peoples of water’ but also ‘legitimizes exploitation of water’ [19]. This exploitative nature of settler colonialism [49] is manifest in the impact of large on-stream dams, which help to reinforce settler perception of ecosystems ‘simply as open lands and waters that belong to them’ [62].

Colonial commoditization of water sits in stark contrast with Indigenous ways of knowing and caring for water [63, 64], where ‘the use of water is integrated with respect for the water as a living entity that gives life… [water] is considered a relative’ [30]. Where Indigenous rights to water ‘are usually communal in nature’ [14], water colonialism negates collective action, and ‘create[s] competition for water and foster[s] speculation by current users and by new economic agents’ [12].

Emphasis on the justice imperative throughout the literature has led to an emphasis on the unfairness of settler state water laws, an issue that remains largely unaddressed. However, even within their own remit of delivering equitable, efficient, and effective use of water [65], aqua nullius generates two significant problems within settler state water law: legitimacy and sustainability.

2.1 Legitimacy problems

Firstly, the settler state assumes rights and powers it may not have. In Australia, vesting the right to control water in the Crown forms the foundation of settler water law, enabling the Crown to issue water access entitlements and make decisions about how water can be used. Despite Western Australia v Ward, lack of a treaty with Indigenous Peoples in Australia means that Indigenous Peoples have never ceded their rights to water. This leaves the Crown’s power to control water open to legal contestation, potentially undermining the entire settler state water law framework. In Canada, Phare argues that the Piikani Nation settlement is evidence of the Canadian government’s acknowledgement of Tribal water rights, even as they were negotiated away. She posits that successive governments used settlements in order to avoid creating legal precedent on the nature of First Nations’ rights to water [26]. In Aotearoa New Zealand, the failure to adhere to the spirit of Te Tiriti o Waitangi, which left authority over taonga [treasures] like water to Māori, has left existing water laws open to contestation [66–68]. In the USA, the process of quantifying and adjudicating Tribes’ water rights can be multi-decadal [30], leaving an illegitimate water allocation system to continue in operation until the final ruling is made [69].

Secondly, even if the contestation can be managed, there is the problem that the settler state defines water rights in ways that Indigenous Peoples cannot accept, resulting in the suppression of Indigenous ways of knowing water [5, 27, 70]. In Canada, ‘[w]hile Indigenous nations in the area see water as a living being, ideas about water as a ‘‘resource” that can be owned and exploited prevail’ [71].

2.2 Sustainability problems

Unsustainable water management is a global problem for humans and ecosystems [72–75], exacerbated and underpinned by colonialism, in which demonstrating control over water is a significant feature [64, 76]. Settler colonial invaders brought with them the laws they wished to impose on waterscapes.

In Australia, British invaders ‘brought Western views on water use and a failure to understand that Aboriginal Country was unlike England’ [5]. Failing to learn from the millennia of knowledge held by the oldest living cultures on the planet has also left Australia to contend with the ongoing tragedy of over-allocated water, mass fish kills, poor water quality, and highly politicised water policy [63, 77–81]. In the USA, poor water management and belated acknowledgement of Tribal water rights drives water conflict [82]. By importing water laws as part of colonization, and focusing on maximising extraction (through ‘use it or lose it’ requirements [83]), settler state water law has left the Colorado River Basin in a state of crisis [84–86]. In Aotearoa New Zealand, Stewart-Harawira draws a link between water’s role in Māori knowledge and identity, colonisation, and the heartbreaking decline in waterway health across Aotearoa New Zealand, noting that Aotearoa New Zealand’s freshwater systems are ‘among the worst in the world [and] they are continuing to degrade’ [29].

As a note of caution, the settler state should not assume that Indigenous Knowledge or co-governance can just ‘fix’ sustainability problems. This instrumental approach overlooks the holistic nature of Indigenous Knowledge, and undermines the commitment to water justice [63, 87].

3 Addressing aqua nullius: Pathways to water justice

‘We need cultural water for our cultural economies’

(Brendan Kennedy, Tati Tati, cited in [51]).

Achieving water justice in settler colonial countries requires challenging aqua nullius [5]. Achieving water justice must be seen in the context of a ‘Water Back’ agenda, in which the redistribution of water rights, but also power in water governance, is an explicit goal [27].

Treaty and agreement-making between the settler state and Indigenous Peoples have established mechanisms to recognise Indigenous water rights (and laws), increase Indigenous representation in water governance, and redistribute water rights [13, 14]. Even in the absence of a treaty, pathways can still be identified. For example, Australia’s Indigenous-led National Cultural Flows Research Project proposed a three-pronged approach to law and policy reform that: (1) transforms the foundation of the relationship between the settler state and Indigenous Nations; (2) increases power and influence of Indigenous Peoples in waterscapes; and (3) increases water rights held by Indigenous Peoples [42]. These pathways to water justice can also address the legitimacy and sustainability problems afflicting settler state water laws.

3.1 Transform foundations

‘Water is a living being and should be treated accordingly’

[88].

One way to transform the foundations of the relationship between the settler state and Indigenous Peoples is via treaty-making. A powerful example that shows how a treaty process can (eventually) re-shape relations between people and water is the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand. Te Awa Tupua (Whanganui River) is recognised as an ‘indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’ (section 12) and a ‘legal person [with] all the rights, powers, duties, and liabilities of a legal person’ (section 14). Gerrard Albert, lead negotiator for Whanganui iwi, explains that the ‘fullest expression of what this new status of the river means will come in … two generations’ time. Because we will have had time to grow a community that understands its relationship with this river’ (cited in [89]).

A treaty is not the only way to achieve transformative outcomes. Where the rights of Indigenous Peoples are recognised in the constitution of a settler colonial state, this may also provide a pathway for transformation. In Colombia, the Río Atrato (Atrato River) was recognised as a legal subject [90], which was ‘adopted to reflect the ‘biocultural rights’ of [I]ndigenous and tribal communities [and] underscores the potential for legal person models to create new jurisdictions for [I]ndigenous [P]eoples in which to participate in river sharing, governance, and use’ [14]. This case was a ruling by the Constitutional Court, made possible by explicit constitutional recognition of the rights of Indigenous communities.

Despite the lack of water rights for the rivers themselves [91], or the relevant Indigenous Peoples, these examples demonstrate the potential of treaties to deliver legal pluralism, rather than forcing Indigenous laws to fit within the laws of the settler state. In doing so, they address both the legitimacy problem, by acknowledging Indigenous laws and enabling the river to be constructed in multiple ways in settler state law; and the sustainability problem, by enabling Indigenous Peoples to play increasingly significant roles in the care and management of the river.

However, the literature provides little evidence of improvements in river health or other sustainability indicators at this time, reflecting both the entrenched nature of the sustainability problems, and the relatively limited powers so far given to the new institutional arrangements [90]. It is also worth noting that Indigenous scholars identify specific problems with the translation of water as a living, ancestral relation into a ‘legal person’. This settler state construct can operate to further exclude Indigenous Peoples from water, and should be treated with caution [92].

3.2 Increase influence in water management

‘We want to be resourced to actively manage water on Gunaikurnai Country, including waterways, wetlands and lakes, in a culturally appropriate way’

(Gunaikurnai Lands and Waters Aboriginal Corporation Nation Statement [43]).

Wilson argues that ‘water justice cannot be achieved without recognition and support for the continuation of Indigenous epistemologies, ontologies, laws and governance systems’ [93]. In the absence of transformative reforms, there is still ‘a need for Indigenous water governance’ [18].

Co-governance models are being tested in Canada. The Yukon Water Board has one-third of appointees as First Nations, one-third representing the Yukon Territories government, and one-third representing the national government. The board is responsible for making legally binding decisions on water licences [93, 94]. However, Wilson finds that ‘this system falls short of achieving [true] co-governance’ because of the ‘the continued assertion of ’Crown’ jurisdiction over water and by the marginalisation of Indigenous legal orders [and] privileging of settler worldviews and forms of governance’ [93]. In 2022, British Columbia (B.C.) established the B.C.-First Nations’ Water Table, to co-manage the $CAN100 million Watershed Security Fund and co-develop B.C.’s watershed security strategy [95]. It remains to be seen whether this arrangement will continue to privilege settler worldviews, or whether this is indeed a genuine step towards power-sharing.

In Australia, the recognition of the Birrarung (Yarra River) as a ‘single, living, integrated natural entity (Yarra River Protection (Wilip-gin Birrarung Murron) Act 2017, Victoria, section 1) is beginning to transform the relationship between people and the river [96], but in the absence of any Treaty, it falls short of genuine transformation of the relationship between Indigenous Peoples and the settler state. However, it does increase the power and influence of the Traditional Owners of the river (Wurundjeri Woi-wurrung and Bunurong Peoples) in the care and management of the river [97].

Each of these examples can only partially address the legitimacy problem because they fail to resolve the Crown’s contested jurisdiction over water. They do support pluralist understandings of how to care for water, and they enable Indigenous Peoples to exert influence in water governance. The sustainability outcomes of this influence will depend on the degree of power-sharing: as Indigenous Peoples gain power in the way water is managed, we would expect to see increasingly sustainable water management [98], especially if land and water are managed in an integrated manner [38].

3.3 Water rights

‘Give us our water and we’ll show you what we can do with it’

(Traditional Owner, cited in [51]).

The most obvious outcome of aqua nullius is the dispossession of Indigenous Peoples of their rights to water. In the Murray-Darling Basin of Australia, Indigenous organisations hold less than 0.2% of all water rights allocated under the settler state laws [99], which has prevented them from fulfilling their obligations to water, and has also prevented them from participating in water-related economic development [51].

In the USA, on the other hand, Tribes’ rights to water have been recognised in settler law for over a century [25]. In the Colorado River Basin, Tribes hold approximately 25% of water in the river [100]. Tribes are using their water rights to lease water to communities at risk of drought, as well as gain (long overdue) entry into policy forums for the future water sharing arrangements for the over-allocated river [101].

Water rights can improve legitimacy of settler state water laws by enabling Indigenous Peoples to have a voice in the way that water is managed, alongside other water right holders. But this power comes with a risk of being co-opted within the settler state system that remains blind to Indigenous ways of knowing water [25]. Increasing Indigenous ownership of water can also improve sustainability outcomes. In Australia, water returned to Traditional Owners has been used to maintain the health of Country, as well as reinvigorating their cultural economies [38, 102]. However, there is a risk that cultural flows end up being seen by the settler state as de facto instream or environmental flows, further disenfranchising Indigenous Peoples [103, 104].

Reforming settler law to increase Indigenous-held water rights is essential for water justice, but should only be seen as a first step to address settler water law’s legitimacy and sustainability problems.

4 Conclusion

‘We’ve been managing the river as custodians from the beginning of time, but governments are not asking us how we did that’

(Grant Rigney, Ngarrindjeri, cited in [105]).

Settler state governments are seeking to ‘accommodate [I]ndigenous water interests’ [14] through attempts to recognise Indigenous rights within settler colonial laws. This process of translation (or appropriation) of Indigenous laws and Indigenous knowledges occurs ‘against a backdrop of inequitable power relations and histories mired by colonial oppression and violence’ [106].

This paper has identified three key arguments for addressing aqua nullius: (a) to achieve water justice [27], (b) to recognise human rights [18, 107], and (c) to address the fundamental problems of legitimacy and sustainability within settler state water law [63]. This review has focused on the third argument. By making the case that there are flaws within the settler state legal framework itself, this review opens up pathways for water law reform in settler states that can be genuinely transformative. Addressing aqua nullius requires root and branch reform of settler water law, as well as the upholding of Indigenous water laws and water rights.

Treaty and agreement-making offer one avenue for this reform [108], and the only way to overcome the legitimacy problem at the foundation of settler state water law. But treaty may not be enough. The history of treaties with Indigenous Peoples is one of racist origins, forced agreements, and the domestication of treaties so that they are interpreted as legal instruments within settler state laws [26, 109, 110]. How effectively any treaty is implemented, and whether that agreement brings with it the return of stolen land and water, will be determinative [46].

In the absence of treaty (or with ineffective treaty implementation), the water law and governance literature highlights the need for a genuinely pluralist approach that recognises ‘Indigenous legal orders and relationships to water’ in settler state processes, institutions, laws and regulations [93]. This pluralist approach can acknowledge and respond to the legitimacy problem, as well as enabling new, more sustainable ways of knowing and caring for water.

In describing the challenges for settler state water law, and charting pathways to address them, this review echoes Yates et al.’s call to ‘take seriously the possibility and politics of a multiplicity of water-related worlds’ [11]. Learning to see these ‘multiple water realities and ways of being-with-water’ [11] takes time and a willingness from the settler state to embrace new ways of seeing, being in, and knowing the world (see also [111]). But this is also the only way to overcome the twin failures of legitimacy and sustainability that are perpetuated in settler law by the erroneous assumption of aqua nullius.

Acknowledgments

I begin by acknowledging my standpoint [112] in writing this article. I am a white woman of settler heritage living and working on Wurundjeri Woi-wurrung Country in so-called Australia. I am not speaking for any Indigenous Peoples.

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