Book Review: Indigenous Water Rights in Law and Regulation–Lessons From Comparative Experience

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience. By Elizabeth Jane Macpherson. Cambridge: Cambridge University Press, 2019. xi, 291 p. Includes bibliographic references, index, and glossary. ISBN 978-1-108-47306-4 (hardcover) $126.95; ISBN 978-1-108-61109-1 (eBook via Cambridge Core) US$140.00.

Reviewed by Nadine Hoffman
Natural Resources, Energy & Environmental Librarian
Bennett Jones Law Library, University of Calgary
In CLLR 45:4

This book details the exclusion of Indigenous peoples from water law frameworks due to competition between agriculture, industry, and urbanization and traditional cultural rights. This research is funded in part by the New Zealand Law Foundation and is part of the Cambridge Studies in Law and Society Series. It includes a detailed table of contents, handy glossary of non-English terms, and an extensive 43-page bibliography.

A comparative analysis explores contemporary legislative and regulatory water regimes as case studies in Australia, Chile, Colombia, and Aotearoa/New Zealand (Aotearoa is the Māori name). Countries were chosen to contrast and compare Indigenous rights from a contemporary and historical perspective: two common law and two civil law countries, and drought versus water quality issues.

Each chapter starts with a detailed description of Indigenous rights and legal right to water with relevant legislation and case law, the allocation and future of water rights for significant water bodies/rivers, and future expectations. Predictions for legislation and stakeholders are noted as a new mechanism for water use rights for Indigenous groups. Common themes and issues are identified, including histories from British and Spanish colonies; justification for Indigenous land and resource rights to title, including dispossession; tensions between fair share and reparative/distributive justice, legal entitlements, and ongoing exclusions regarding water rights, jurisdiction, and ownership; water management as part of the distribution of water as a commodity, constitutional rights, and biocultural rights; recognition and distribution of ancestral rights; and compensation versus recognition.

Key points from the national case studies:

• Australia is known for their lack of Treaty or settlement agreements. This leaves Indigenous peoples “locked out” of water law frameworks, limiting their rights to those based on native title, traditional laws and customs, and group rights. The National Water Initiative, a 2004 intergovernmental water reform agreement to which Indigenous peoples were not a signatory, provides for Indigenous representation in water planning wherever possible, but Macpherson argues this initiative continues to tie the water right of Indigenous peoples to their tradition and cultural purposes through native title.
• New Zealand’s relationship with Indigenous peoples concentrates on the Māori claim as guardians and proprietors of land seeking recognition of distinct water jurisdiction over resources. Most discussion specifically relates to the 2017 Treaty of Waitangi describing the Whanganui River as “indivisible and living whole” and the Te Awa Tupua model as the equivalent to a constitution with the Māori people.
• Colombia, with Afro-descendant communities (descendants of original slaves) and five different hydrographic areas, is considered the pioneer of earth jurisprudence. Colombia’s 1991 constitution is known as the “Ecological Constitution,” which protects water quality. In separate decisions, Colombian courts have declared the Amazon Rainforest and the Atrato River as legal subjects. The Tierra Digna case was a watershed moment, requiring governments to work with Indigenous groups to create a decontamination plan for the Atrato River.
• Historically, Chile had no legally recognized Indigenous right to use water. The end of the Pinochet dictatorship in 1990 saw Indigenous peoples begin asserting their rights, largely in conflicts with corporations regarding mining over-extraction. These actions led to the 1993 enactment of the Indigenous Law, which recognizes Indigenous ancestral rights. More recently, the Supreme Court characterized water rights for the Aimara and Atacemeña communities as “ancestral” in nature pursuant to the Indigenous Law, and recognized rivers as legal persons.

This book describes a model to manage entitlements on water through describing public and private tools for regulation, treaties, and UN Resolutions alongside Indigenous issues relating to the environment, resources, and eco-centric movements. Macpherson illustratively proposes the need for Indigenous peoples to own and manage jurisdiction and distribution of water resources for cultural and commercial use through legal mechanisms to protect cultural access and recognize water ownership.

Macpherson’s country analysis argues that it is imperative for governments to address historical water injustice, makes a hermeneutic distinction between recognition and allocation models, analyzes the current limited legal lens, and outlines necessary decisions for a distributive response for future certainty. The book concludes that Indigenous peoples are guardians and must lead discussions with autonomy to unbundle water from land title, redistribute water allocation rights, and create market mechanisms for water regulation.

Legal researchers with interest in the areas of water, Indigenous, constitutional, or human rights law, and libraries with area studies collections for Latin America and Australasia, may be interested in this book.