In Chapters 8 and 9 I bring together the findings from the comparative country studies to generalise some observations about the current state of, and potential for, indigenous water rights in state law. I argue that governments must finally address historical water injustice, and respond to the exclusion indigenous people have experienced, and continue to experience, from water law frameworks. I argue that this cannot be done, if indigenous peoples lack either the jurisdiction to exercise authority and influence over water management and governance in their territories, or a fair distribution of substantive rights to use water under legal and policy frameworks. I conclude the book with a reflection on how a more complete response to indigenous water injustice might look.

In Chapters 8 and 9 I bring together the findings from the comparative country studies to generalise some observations about the current state of, and potential for, indigenous water rights in state law. I argue that governments must finally address historical water injustice, and respond to the exclusion indigenous people have experienced, and continue to experience, from water law frameworks. I argue that this cannot be done, if indigenous peoples lack either the jurisdiction to exercise authority and influence over water management and governance in their territories, or a fair distribution of substantive rights to use water under legal and policy frameworks. I conclude the book with a reflection on how a more complete response to indigenous water injustice might look.

In Chapters 8 and 9 I bring together the findings from the comparative country studies to generalise some observations about the current state of, and potential for, indigenous water rights in state law. I argue that governments must finally address historical water injustice, and respond to the exclusion indigenous people have experienced, and continue to experience, from water law frameworks. I argue that this cannot be done, if indigenous peoples lack either the jurisdiction to exercise authority and influence over water management and governance in their territories, or a fair distribution of substantive rights to use water under legal and policy frameworks. I conclude the book with a reflection on how a more complete response to indigenous water injustice might look.

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.

In Chapter 5 I consider water rights for Maori in Aotearoa New Zealand. Pursuant to a settlement between Whanganui Iwi and the Crown, made in 2017, the Whanganui River was recognised as ‘Te Awa Tupua’ (‘an indivisible and living whole, incorporating all its physical and meta-physical elements’), declaring the River to be a ‘legal person’. The arrangement accords certain guardianship and governance rights, but not property rights, to the Maori people that traditionally owned the River. However, Maori continue to agitate at a national level, both politically and before courts and tribunals, for the right to ‘own’ their water resources, amid cautious government plans for water law reform. The New Zealand study raises interesting questions about the nature of water in law; as a private right to be held and allocated, or a public interest incapable of ownership. Maori are seeking both recognition of their distinctive water relationships and influence and control over water governance and a substantive share of the consumptive pool of water for any purpose including economic development. The study of Maori rights to water in this chapter demonstrates the variability of indigenous water demands, and a need for multifaceted responses to indigenous water exclusion.

Chapter 7 examines indigenous water rights recognition and distribution in Chile. In this chapter I discuss the recognition of the ancestral water rights of indigenous peoples under the Indigenous Law and the creation of an Indigenous Land and Water Fund for the acquisition of rights in the market. I argue in this chapter that the recognition of ancestral water rights an incomplete response to the ongoing exclusion indigenous peoples experience from rights allocated within water law frameworks, because it continues to exclude groups that have lost water access to other users.The Fund, by contrast, specifically responds to the situation where indigenous peoples have been unable to continue to exercise their water rights. In the case of water resources already fully allocated to others, the Fund finances the purchase of water use rights in markets for redistribution to indigenous landholders.An interesting lesson from the Chilean experience is that market mechanisms may in some situations be a ‘creative’ response to the injustice in water rights distribution.However, by setting aside a share of water use rights before water resources are already fully allocated, governments reduce the cost of buying-back water use rights for allocation to indigenous peoples in the future.