Indigenous Processes of Consent: Repoliticizing Water Governance through Legal Pluralism

Deborah Curran

doi:10.3390/w11030571

Abstract

While international instruments and a few state governments endorse the “free, prior and informed consent” of Indigenous peoples in decision-making about the water in their traditional territories, most state water governance regimes do not recognize Indigenous water rights and responsibilities. Applying a political ecology lens to the settler colonialism of water governance exposes the continued depoliticizing personality of natural resources decision-making and reveals water as an abstract, static resource in law and governance processes. Most plainly, these decision-making processes inadequately consider environmental flows or cumulative effects and are at odds with both Indigenous governance and social-ecological approaches to watershed management. Using the example of groundwater licensing in British Columbia, Canada as reinforcing colonialism in water governance, this article examines how First Nations are asserting Indigenous rights in response to natural resource decision-making. Both within and outside of colonial governance processes they are establishing administrative and governance structures that express their water laws and jurisdiction. These structures include the Syilx, Nadleh Wut’en and Stellat’en creating standards for water, the Tsleil-Waututh and Stk’emlúpsemc te Secwépemc community assessments of proposed pipeline and mining facilities, and the First Nations of the Nicola Valley planning process based on their own legal traditions. Where provincial and federal environmental governance has failed, Indigenous communities are repoliticizing colonial decision-making processes to shift jurisdiction towards Indigenous processes that institutionalize responsibilities for and relationships with water.

Highlights

Conflicts between nation state governments and Indigenous peoples often manifest as disputes over water governance [1,2,3,4]
Within the context of fragmented water governance in Canada, the example of the new groundwater licensing regime in British Columbia, an extension of settler colonial jurisdiction, is contrasted with Indigenous initiatives that circumvent state-initiated and narrowly defined water and natural resource governance processes. Relying on their own laws and procedures, Indigenous communities are repoliticizing water governance by using the principle of free, prior and informed consent to reject proposals for natural resources development and create their own water management and governance frameworks based on Indigenous legal traditions
The experience of these conditions of water governance for Indigenous communities in BC—the disconnect between ecological conditions and real-time decision-making, and continued treatment as a quasi-stakeholder that is consulted on an application-by-application or license-by-license basis without acknowledgement in state law addressing natural resources—has contributed to Indigenous communities renewing their assertions of authority over their lands and waters in their traditional territories in new ways

Summary

Introduction

Conflicts between nation state governments and Indigenous peoples often manifest as disputes over water governance [1,2,3,4]. Rights of Indigenous Peoples (the UN Declaration or UNDRIP) [10], that reflects Indigenous people’s laws and water governance responsibilities that predate colonization These tensions about Indigenous sovereignty and the right to a healthy ecology manifest as issues of consultation and consent: The state depoliticizes decisions about water by directing them into administrative processes like environmental assessment while Indigenous communities are repoliticizing water governance by creating evaluation processes that reflect their own legal traditions and standards. Within the context of fragmented water governance in Canada, the example of the new groundwater licensing regime in British Columbia, an extension of settler colonial jurisdiction, is contrasted with Indigenous initiatives that circumvent state-initiated and narrowly defined water and natural resource governance processes Relying on their own laws and procedures, Indigenous communities are repoliticizing water governance by using the principle of free, prior and informed consent to reject proposals for natural resources development and create their own water management and governance frameworks based on Indigenous legal traditions. The term First Nation refers to the political organizations that represent groups of Indigenous peoples in their interactions with the state

Fractured Governance

Example

Repoliticizing Water Governance Authority

Repoliticizing

Findings

Conclusions