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.

Chapter 2 explores the tensions in debates about indigenous water rights in legal and political theory, setting up the key propositions for this book.I argue that legal and policy mechanisms that seek to recognise cultural relationships with water and involve indigenous peoples in water governance should strive towards recognising indigenous water relationships but, more importantly, indigenous water jurisdiction. This argument is central to the consideration of the four country studies included in this book, in which law and policy is sometimes able to provide a space for indigenous groups to exercise jurisdiction in planning and governing their water resources. I also contend that the reason states should provide for indigenous water rights is an imperative of distribution. Such rights are needed not only to remedy the historical injustice of non-recognition but because indigenous exclusion from water law frameworks is ongoing.

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 3 I introduce the two key regulatory tendencies relevant to the consideration of indigenous water rights in comparative law in this book. One of these developments is the idea that governments should ‘commoditise’ the natural environment and use private property rights and market mechanisms in water regulation and allocation; an approach typically counterposed with the idea of treating access to water as a fundamental human right, entitled to all. The other is the tendency to devise new legal mechanisms like ‘legal personality’ to protect the ‘rights of nature’ and address social or community concerns around water governance and quality. Both trajectories play out repeatedly in debates about indigenous rights to water in comparative law, and resulting legal and policy frameworks in the country studies considered in this book. I argue that most regulatory frameworks are in fact a combination of public and private interests, and suggest that both private and public mechanisms may have a place in debates about how best to provide for indigenous water rights.

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.

This chapter looks empirically at the field of health technology assessment (HTA) and argues that it is possible to identify the ‘defence’ style of hyper-active governance posited in the previous chapter. HTA is the crucial expert policy area, involving deciding which drugs and other medical treatments are safe and cost-effective to be prescribed by a local doctor or hospital. HTA has been described by international organisations promoting its use as ‘the systematic evaluation of the properties and effects of a health technology, addressing the direct and intended effects of this technology, as well as its indirect and unintended consequences, and aimed mainly at informing decision making regarding health technologies’ (www.inahta.org). It is a process for making delicate decisions about whether a country will fund a medicine, often based on variants of cost–benefit analysis. In this sense, HTA is a classic arena of expert governance: it is the attempt to turn highly emotive decisions about life and death – about who gets access to new potentially life saving drugs and medical treatments – into rational, evidence-based questions of medical science.

The previous chapters have sought to map and explain dynamics of contemporary governance in which governments have relied upon experts to govern complex policy problems but have taken a ‘hands-on’ rather than ‘hands-off’ approach – ‘hyper-active governance’. The dynamics were summarised through the terms ‘defence’ and ‘empowerment’. This chapter focuses on a third style, which is termed ‘inclusion’. This style of governance refers to how governments may rally popular opposition to a policy explicitly designed to be made by experts. Expert-driven decisions are not politically uncontentious, and the fallout of expert-led policy processes can be a societal backlash if they are seen as unnecessarily biased or unfair. Governments sometimes side with society in the backlash and demand that experts revise their decisions to take account of public opinion. Examples of this style can be found in areas where ethical concerns are important and experts are seen to have failed to listen to public opinion. Alternatively, big infrastructure projects like high-speed rail links often lead to politicians criticising experts where their advice has led to houses needlessly being bulldozed. In such instances, politicians often build in mechanisms for public input into decision-making, often through extensive consultation and ‘stakeholder engagement’ processes.