Can western water law become more relational?

There’s increasing support, in international legal circles, for approaches to water governance that recognise reciprocal relationships between peoples and places.

It’s an approach that’s logical in te ao Māori and for other Indigenous peoples — but one that’s been resisted by western legal systems.

Dr Elizabeth Macpherson has 20 years of legal and research experience on Indigenous water rights in different countries. Here, she asks whether western law can evolve to more meaningfully relate with Indigenous understandings of water.

 

When it comes to water, we have a lot of work to do within the legal frameworks developed and administered by western governments.

In Aotearoa, for example, Māori are leading a range of groundbreaking legal and political processes concerning water use and governance.

But there are important, and as yet unresolved, questions about how the Crown’s law, with its colonial history and structures, should relate to the rangatiratanga of Māori in the governance and use of water.

These are not questions specific to Aotearoa. Answering them is a common and urgent imperative around the world, as Indigenous peoples in a range of countries continue to be unjustly excluded from western legal systems that distribute rights to use and manage water, and as the health of waters and related communities continues to decline.

How can western water law frameworks evolve to be capable of relating with Indigenous systems of law and governance for water?

Resolving this question is critical to meet the standard of “partnership” accepted by the Crown as required under Te Tiriti, as well as the legal directives of a range of international instruments the New Zealand government has already signed up to.

There’s also now an overwhelming body of international scholarship and advocacy calling for urgent changes to environmental law frameworks, if we are to overcome extinction-level threats to global environmental futures.

Much of this work advocates for a shift to governance approaches that recognise interdependent relationships between humans and nature, and which fairly interact with Indigenous peoples and their rights, interests and values.

It tends to understand humans as related to, and within, holistic, living ecosystems, in the context of complex systems of reciprocal and intertwined rights and responsibilities of use and care.

Such an approach can be contrasted with typical western laws, where humans are perceived as separate to nature, and the law’s engagement with nature is fragmented across seemingly arbitrary jurisdictional scales.

Relational understandings of law go beyond static notions of law and rights, and instead focus on the processes of relationships, dialogue and negotiation in plural, multicultural legal settings.

It’s an approach that goes to the heart of power relations between peoples. It includes calls for legal pluralism and place-based power-sharing, including through partnership between settler governments and Indigenous peoples, in designing and implementing the legal frameworks that determine water access, use and governance.

So, can western legal frameworks for the use and governance of water become more “relational”?

In considering this, it’s useful to look beyond Aotearoa’s shores, to other settler colonial states with Indigenous populations which are grappling with similar questions.

Aotearoa, Australia, Colombia, the United States, Canada and Chile have all been sites of legal and political contestation and renewed energy around water reform and justice, including at the constitutional level.

They reveal important lessons for the challenge of more relational water law here in Aotearoa.

 

Relational Water Laws: Highlights from Australasia and the Americas

Aotearoa

A leading global example of a relational approach to water law is Aotearoa’s Te Awa Tupua model applying to the Whanganui River.

Te Awa Tupua was recognised by legislation in 2017 to be a legal person as part of a Tiriti settlement between the Crown and the Whanganui River iwi.

The iwi relate to the river as a living ancestor and have maintained their claims to authority, ownership and control of the river since before colonisation.

The Waitangi Tribunal has recorded how iwi ownership, control and authority over river governance was undermined by the vesting of river ownership and regulatory power (unilaterally and without compensation) in the Crown, which is now exercised by local authorities under the Resource Management Act.

As a result, the iwi’s river relationships have been affected in multiple ways. That includes the obstruction of mahinga kai, navigation and ceremonial uses by Crown-authorised activity in the catchment, such as agriculture, urbanisation, resource extraction and hydroelectric development.

Whanganui iwi resistance to the assumption of ownership and control of the river by the Crown and local government is longstanding. It includes multiple court cases, an in-depth Waitangi Tribunal River Inquiry, and eventual negotiation and settlement culminating in Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.

This legislation recognises the status of the river and its tributaries as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and meta-physical elements”.

It sets up a framework for river governance called Te Pā Auroa which comprises a range of legal entities involving iwi, hapū, government and community and recreational interests, working under a common set of fundamental values called Tupua Te Kawa.

These acknowledge the direct link between the health of the river and the health of the people, emphasise the living, integrated and holistic nature of the river, and acknowledge the responsibility of the Whanganui iwi to work collaboratively with other river interests to further the river’s health and wellbeing.

The model also recognises the living-being status of the river as a “legal person” with all corresponding rights, powers, duties, and liabilities, as represented by Te Pou Tupua, the human face of the river.

Te Awa Tupua Act has put Whanganui on the map, with intense interest from international media and scholarship, much of which seeks to position the legislation as aligned to the global “rights of nature” movement. This is curious, given that New Zealand law doesn’t directly recognise any environmental rights, let alone the rights of nature, within our constitutional framework.

More accurately, the legislation recognises the relationship between river iwi and Te Awa Tupua, the legal-person model being one creative strategy to influence government decision-makers to prioritise river and river people, via a legal approximation from western law that is familiar to the Crown.

The Awa Tupua model is an attempt to resist the carving up of the river system by western legal frameworks into discrete legal and property regimes for bed, banks, adjacent land, minerals, wildlife and resources. Positioning the river as a living being and ancestor begs the question: Who could cut a relative up this way? The model therefore allows for holism and integration in river governance.

The model centres tikanga Māori and brings in other river users, who engage with the model through their participation in collaborative governance arrangements.

But it’s still a political compromise arising out of a Tiriti settlement. As such, it’s limited by the extent to which the Crown agreed to its parameters, and the legislation doesn’t go so far as to transfer full political authority or ownership of the river to the iwi.

Australia

Australian laws have historically taken a technocratic approach to water resources management, with a focus on the market or engineering uses of water, in almost complete ignorance of the relationships people have with rivers and other water bodies.

This might be explained, in part, by a reluctance among Australian governments and courts to recognise the rights that Aboriginal and Torres Strait Islanders hold to water in the context of weak environmental constitutionalism.

For example, it’s very difficult for Indigenous groups to make out “native title” claims for substantive water rights for any sort of consumptive or extractive purposes under the Native Title Act, a limiting approach that has reverberated through state-based water laws and planning policy.

Consequently, Indigenous peoples have been essentially locked out of water allocation frameworks, in the context of fierce competition for water by other users.

However, with increasing preparedness to hear Indigenous demands and a general, growing acceptance of the sociocultural elements of water use, there are now some examples of Australian laws that are more relational.

The leading example of a relational water law in Australia is the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 in Victoria, which recognises the “intrinsic connection” of Traditional Owners to the Yarra River and its Country, as custodians.

The Act recognises the Yarra as a “living and integrated natural entity” and appoints the Birrarung Council to advise the minister and to advocate for protection and preservation of the river. The Act also sets out “protection principles” for decision-makers to consider in river planning, and provides for the development of strategic river plans, addressing a range of environmental, cultural and recreational interests.

Despite the Victorian government having committed to Aboriginal self-determination and a truth-telling and treaty process, the Birrarung Act is not a partnership model, being state-led and only providing for two Aboriginal representatives on the council. At the policy level, action plans for the waterways of the west and rivers of the Barwon also recognise rivers as “living, integrated entities”. It appears, at least in Victorian policy-making, that river relationality is on trend.

In other parts of Australia, Indigenous peoples are fighting for recognition of their substantive rights to access water and their inherent rights to govern waters according to their own laws.

An example comes from the Maruwarra (Fitzroy) River, recognised in the Fitzroy River Declaration as “a living ancestral being” with “a right to life”, although not yet formally recognised by the state. The declaration provides that the river “must be protected for current and future generations, and managed jointly by the Traditional Owners of the river”. In other places, there’s increasing emphasis on partnership with Aboriginal peoples in water management practices.

In Victoria, the state has taken steps towards improving recognition of Aboriginal water values and representation in water governance, and redistributing “economic water rights” to Aboriginal people.

Victoria’s 2022 roadmap for Traditional Owner access to water is called “Water is Life” and proposes a “restorative justice approach”, which presents options to return water to Traditional Owners, and recognise their role as water managers.

It’s too early to assess the impact of the roadmap, which includes a disclaimer that First Nations’ statements within it “are not Victorian Government commitments”.

At best, Victoria may signal a new Australian standard around the recognition of plural law-making and governance functions for the state and Aboriginal nations.

However, a sceptic might wonder if the Victorian developments are merely another attempt to subsume Indigenous rights and interests in state-designed and mediated water law systems, without a genuine commitment to power-sharing.

Colombia

Colombia appears to be the most prolific producer of seemingly relational water laws, with dozens of rivers now recognised as living beings and “subjects of rights”, sometimes under the care or guardianship of Indigenous, local, or Afrodescendant communities.

The first and most well-known Colombian case concerns the Atrato River, recognised by the Constitutional Court in 2016 as a “subject of rights”.

The case was presented on behalf of Afrodescendant and Indigenous communities that live alongside the Atrato, and sought a declaration that their constitutional rights to life, health, water, and a healthy environment had been violated as a result of damage to the river from illegal mining.

The court recognised the “biocultural rights” of the communities, based on an inseparable relationship between river people and river, perceived as a living entity and giver of life. The court describes the river communities’ rights as the right “to administer and exercise trusteeship in an autonomous manner over their territories — in accordance with their own laws and customs”.

The court found that the Colombian state had breached all the constitutional human rights protections alleged by failing to protect the river and its communities. Further, it recognised the Atrato River, its basin and tributaries, as a legal entity with rights of protection, conservation, maintenance, and restoration by the state and ethnic communities.

The Constitutional Court made several orders for the realisation of those rights. That included setting up a commission of guardians for the river, as well as a panel of experts to assist the guardians; an integrated watershed management governance body comprised of national and regional administrative authorities; and a commission for the eradication of illegal mining and deforestation.

In doing all this, the court went beyond anything raised in counsel’s submissions and referred to rights of nature protections in Ecuador and Bolivia.

The court even cites Te Awa Tupua Act (and the legislation recognising Te Urewera as a legal entity with rights), explained by the simple curiosity that the judge’s clerk in the case had visited Aotearoa during postgraduate research, becoming fascinated by the Whanganui River settlement.

The Atrato case, and those that have followed it, continue to divide opponents and supporters, with research noting poor implementation of the court’s orders in Colombia’s complex social-ecological and security context.

In some respects, it carves out a space for the Indigenous and Afrodescendant communities to once more exercise autonomy over the river as guardians.

However, it does nothing to disrupt colonial distributions of water under the Colombian Civil Code, where water is a “bien de uso publico” (public good), belonging to all the nation, while the state has the right of “dominio” (dominium), to use, enjoy and dispose of water as it sees fit.

In a country where 70 per cent of small water users rely on informal or customary use rights with no formal water concession, large elites have accumulated formal rights, reinforcing the exclusion of local and Indigenous users and encroaching on their territories.

Still, nowhere in the Colombian water laws is there any specific provision for Indigenous peoples to use, own or govern water on their territories.

United States

The US is home to some of the earliest legal attempts to recognise the rights of rivers. Many of these have been driven by large environmental NGOs, but some have been led by First Nations groups.

In the US, Indigenous nations may have reserved water rights arising from historical treaties, and exclusive land and resource rights under the common law doctrine of native title. However, the vast majority of Indigenous reserved lands are in the western, arid states, where access to water is highly competitive. The practical situation in terms of Indigenous water access in any place depends on a complicated mix of constitutional law, treaties, agreements, legislation and court decisions.

Although US developments do not rest on constitutional environmental protections, they do have a constitutional flavour. Article III of the US Constitution requires that claimants taking matters to the court on environmental grounds must prove that they have directly suffered an injury.

As a result, a cascade of municipal ordinances protecting the rights of nature or ecosystems to “exist and thrive” have been made since the year 2000, some involving pollution in rivers or water contamination through fracking.

However, attempts at city and state jurisdictional level to recognise the rights of the Colorado River and Lake Erie have been met with fierce, constitutional opposition by governments.

The US cases have been primarily driven by environmental activists, and don’t centre human relationality with rivers. However, some First Nations groups have used their jurisdiction as domestic-dependent, sovereign nations to pass their own “rights of nature” laws.

In 2015, the Ho-Chunk Nation General Council incorporated the rights of nature in its constitution, and in 2017, the Ponca Nation in Oklahoma passed a tribal law recognising the rights of nature as part of a movement against fracking.

In May 2019, the Yurok Tribal Council in California passed a resolution emphasising the strong connection between the Yurok Tribe and the Weron or Klamath River. It protects the river’s rights “to exist, flourish, and naturally evolve; to have a clean and healthy environment free from pollutants; and to be free from contamination by genetically engineered organisms”.

The resolution includes a warning to “[t]he United States of America, the State of California and all other entities which threaten and endanger the freshwaters, ecosystem and species of the Klamath River, that it has become necessary to provide a legal basis to protect the Klamath River, its ecosystem and species for the continuation of the Yurok people and the Tribe for future generations.”

Canada

Canada has also produced relational water laws, alongside campaigns by First Nations for increased control over rivers. Despite Canada having comparatively strong judicial recognition of the common law doctrine of Aboriginal title, Indigenous water rights are sourced in a complicated patchwork of treaties, constitutional law, fiduciary duty, and native title, and are often ignored by water planners and regulators.

First Nations continue to endure major social, economic, environmental and health injustices with respect to water access, while the water governance system perpetuates the suppression of Indigenous ways of knowing and relating to water, including those based on kinship.

The Canadian federal government has at times settled resource disputes at the regional scale through agreements with Indigenous peoples which also involve provincial and local governments, and sometimes non-Indigenous entities (like hydro generators). These include co-management arrangements similar to those in Aotearoa, involving governments, First Nations and other water users in co-management boards, which may make decisions around water allocation and management.

An example is the Cowichan Watershed Board which takes a collaborative approach to water governance with governmental and non-governmental stakeholders and applies Indigenous custom-based principles. Yet, as is seen in Aotearoa, co-management models don’t necessarily meet the standards of genuine partnership and power-sharing in their design and implementation.

First Nations in Canada have also sought legal personhood arrangements as part of collaborative river governance approaches.

In 2021, the Innu Council of Ekuanitshit and the regional municipality of Minganie passed joint resolutions declaring that the Muteshekau-shipu (Magpie River) was a legal person, with support of the International Observatory for The Rights of Nature. This followed Indigenous activism to protect the river from hydro development.

The river’s status is said to be “rooted in the legal underpinnings of international and national law relating to First Nations”, enabling a “paradigm shift” in the way rivers are managed.

However, the legal status and force of the declarations is unclear and the declarations themselves apparently not publicly available.

Chile

Chile is an extreme case of a neoliberal, technocratic approach to water law and policy, where, until recently, the market was assumed to be the best distributor of water access entitlements. Public water governance was widely seen as unnecessary political interference with private property rights.

Although Chile has had legislation in place to recognise ancestral water rights, and to fund the reallocation to Indigenous communities of rights lost to third parties since the early 1990s, this was done to clarify and regularise water holdings, without any real attempt to understand Indigenous water relationships.

Indigenous water interests in Chile cover a range of complex interests and processes, including social, cultural, spiritual, economic and environmental dimensions. The Mapuche, for example, assert that water is connected to ancestors, metaphysical entities and the broader environment.

Yet, other than as water-rights owners within private river-user associations, Indigenous peoples and their laws have been completely ignored in Chilean water governance. Meanwhile, water-related conflicts have disproportionately affected Indigenous peoples whose relationships with, and economic dependence on, water are increasingly encroached upon.

That being said, Chilean water policy has come under increasing scrutiny in the past couple of years, as a constitutional assembly will soon embark on a second attempt to draft a new constitution for Chile.

The constitutional process builds on many years of agitation for the recognition of water as a basic human right rather than a marketable commodity.

The first attempt at drafting a new constitution was led by a citizen assembly, with an equal number of men and women, and with 17 seats out of 155 reserved and filled by representatives of 10 Indigenous nations. Significantly, one of these Indigenous members, Mapuche scholar Dr Elisa Loncon, was elected the first president of the assembly. Their first draft was described as both a “green” and “Indigenist” constitution, but it failed to win the approval of a majority of Chileans during a September 2022 plebiscite.

The text produced by the assembly, and ultimately rejected by the nation, had many relational aspects.

The draft recognised water as a human right for current and future generations, which it redefined as “common natural property”, which cannot be appropriated, but must be “preserved, conserved and restored” by the state. It declared that, “people and communities are interdependent with nature and form, with it, an inseparable connection”, and, “[n]ature has the right to have its existence respected and protected, to regeneration, maintenance and restoration of its dynamic functions and equilibriums, including natural cycles, ecosystems and biodiversity”. The state, in turn, would be required via its institutions to guarantee and promote the rights of nature.

The failed draft also included a number of provisions directed at Indigenous peoples, including a wide-ranging constitutional recognition of Indigenous rights and authority that could have had major structural implications for Chile’s historically conservative legal frameworks.

This provision sought to recognise Indigenous “nationhood” and self-determination, full exercise of individual and collective rights, rights to autonomy and self-government, and rights to lands and territories, institutions and jurisdictions.

Debate and controversy in Chile around the Chilean constitutional reform project intensified towards the September plebiscite, including pushback around the rights and roles recognised for Indigenous peoples.

The Chilean approach is a reminder about the power of politics and the politics of power in determining water law frameworks, including attempts to secure more relational water laws with constitutional implications, which require delicate manoeuvring.

Where to now for Aotearoa?

The six settler-colonial jurisdictions highlighted here are all sites of ongoing conversation and agitation around social and constitutional transformation, and they include attempts by western legal frameworks to relate with Indigenous systems of law and governance for water.

In Aotearoa, moving towards a more relational water law is a significant challenge for multiple reasons.

These include that Crown law (indeed western, colonial law everywhere in the world) has not historically framed its interaction with Indigenous peoples as one of partnership, rather one of concerted effort of dominance of its sphere over the other.

Water is routinely perceived as merely a resource to be shared among commercial interests for extractive utility, without reciprocal obligations of care. For western water law to come to the party, non-Indigenous organisations need to be able to see human-nature relationships through a very different lens.

In a recent Supreme Court decision in Aotearoa, which (among other things) considered the effect of tikanga in the context of seabed mining consents, Justice Williams used the word “relational” when explaining iwi interests in the case:

I would merely add that this question must not only be viewed through a Pākehā lens. . . . As the Court of Appeal rightly pointed out, the interests of iwi with mana moana in the consent area are the longest-standing human-related interests in that place. As with all interests, they reflect the relevant values of the interest-holder. Those values — mana, whanaungatanga and kaitiakitanga — are relational.

Although subtle and incremental inroads are being made into Crown legal frameworks, water relationality is, as Professor Jacinta Ruru says, “unfinished constitutional business”.

A relational approach to water law would require partnership between the Crown and Māori, at the very least. Partnership (required by Te Tiriti) has constitutional implications because it goes to the very framing and design of legal frameworks which can’t be mere top-down directives by the state that “involve” or “engage” Māori.

It requires a willingness to recognise legal pluralism and enable power-sharing. A Tiriti partnership approach to water law, if it’s to meet the yardstick of relationality, requires much more than discrete “co-management” arrangements for particular water resources, which has been applied here and elsewhere in limited legal frameworks mediated by settler governments.

It’s also important to remember that not everyone is comfortable with discussing water rights or governance alongside the principle of partnership.

Ani Mikaere, for example, has warned that, “[r]eliance on the principles of the Treaty in order to describe the relationship between Māori and the Crown leads us down the murky path of ‘partnership’ whereby tino rangatiratanga is made subject to kāwanatanga through such euphemistic contrivances as ‘reasonable cooperation’, ‘good faith’ and ‘reciprocity’.”

There is now a global movement towards water governance that rests on the relatedness within and between waters and water peoples — a governance that’s not just consultation or participation, but real power-sharing.

If western water law is to become more relational, this will require a commitment by states to recognise the political authority of Indigenous peoples — and the courage to continue with constitutional conversations about water futures.

 

This is an edited version of the article “Can Western water law become more ‘relational’? A survey of comparative laws affecting water across Australasia and the Americas”, first published in the Journal of the Royal Society of New Zealand.

• You can read about one iwi’s fight to have the law recognise their river relationship in ‘We are weeping for our river’.

Dr Elizabeth Macpherson (who is Pākehā) is Associate Professor in Environmental and Natural Resources Law at the University of Canterbury. Her research interests are in comparative environmental and natural resources law, human rights, and Indigenous rights in Australasia and Latin America. She is the author of the award-winning book Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (2019, Cambridge University Press).

Made possible by the Public Interest Journalism Fund.