WET 219 - Applied Water Law - Indigenous Rights

This thesis investigates the rescaling of transboundary water governance across the Canada – U.S. border, focusing on three regional case studies: the Shared Waters Alliance, the Salish Sea Aboriginal Council, and the International Joint Commission Watershed Initiative. The case studies employ qualitative data drawn from interviews, participant observation, and quantitative data drawn from a comprehensive dataset that I created on transboundary water governance mechanisms over the period 1910 to the present. The analysis of the empirical material outlined above enables me to intervene in current debates over scale, governance, and borders, through mobilizing three bodies of literature: environmental governance, the politics of scale, and the social construction of borders. The resulting theoretical framework – which focuses on the rescaling of environmental governance within borderlands – contains three key conceptual claims. First, I argue that studying environmental governance at the site of the border helps to move discussions beyond a nation-state framework – challenging what Agnew refers to as the territorial trap. This is important given the nation-state focus of a significant proportion of the literature on environmental governance, an obvious over-sight considering the tendency of environmental issues (such as air and water pollution) to transcend national borders. Secondly, I argue that drawing on the “politics of scale” literature can offer new insights into processes of rescaling of environmental governance, specifically through interrogating local governance capacity in the context of devolution of environmental governance. In particular, my analysis challenges (often implicit) assumptions regarding the capacity of local actors to participate effectively in multi-scalar governance processes. Third, I argue that closer attention to borders can help refine critical assessments of transboundary environmental governance. Specifically, I suggest that all borders (even seemingly “natural” ones) are part of cultural construction and wider politics of power that help define and redefine the landscape. Pursuant to this, I explore how discursive (often-jingoistic) strategies are deployed to entrench borders – both physically and discursively. Understanding transboundary governance of water, in other words, requires close attention to the cultural politics of the border.

All people rely upon water for life. Indigenous peoples are especially vulnerable to water conflicts and yet lack recognition in international water law. This thesis adopts Critical Race Theory to examine the intersection between transboundary water law, the doctrine of sovereignty and the international law of Indigenous peoples. The methodology adopted in this thesis includes: (i) a deconstruction of the UN Watercourse Convention and the doctrine of sovereignty; (ii) a review of Indigenous perspectives on sovereignty; and (iii) a proposal for the reconstruction of transboundary water law in a manner that recognizes the internationally affirmed rights of Indigenous peoples. A deconstruction of the UN Watercourse Convention and related discourse reveals that state-centric approaches to transboundary water law fail to recognize Indigenous peoples’ international rights or the pivotal role that Indigenous peoples’ traditional knowledge might play in transcending conflict. Case examples are provided (Columbia River and Tsangpo-Brahmaputra River) that illustrate the vulnerability of Indigenous peoples in the face of state development agreements. The inequities that exist in international water law are rooted in the historical doctrine of sovereignty which has evolved to subordinate Indigenous peoples’ interests to state interests. Indigenous perspectives regarding sovereignty provide a counter-point to the dominant legal discourse and weave an alternate narrative that challenges the myth of objectivity and neutrality that surrounds the doctrine of sovereignty and international law generally. Once we recognize that sovereignty is a social construct, we can recognize our collective ability to reconstruct international laws in a manner that transcends the sovereign discourse and recognizes the rights of Indigenous peoples. Endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is indicative of states’ commitment to recognize Indigenous peoples’ rights throughout the international legal system. This thesis concludes by offering a proposal for reconstructing transboundary water law through a return to ethics and coalition building. Future reform should be directed towards (a) articulating an international water ethic with the critical engagement of Indigenous peoples; and (b) ensuring that river basin organizations are established on every transboundary river in a manner consistent with this shared international water ethic.