Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law

(2014) 5 Settler Colonial Studies 334-49

U. of Adelaide Law Research Paper No. 2017-32

17 Pages Posted: 11 Oct 2017 Last revised: 18 Oct 2018

See all articles by Peter D. Burdon

Peter D. Burdon

University of Adelaide - School of Law

Georgina Drew

University of Adelaide

Matthew T. Stubbs

University of Adelaide - School of Law

Adam Webster

University of Oxford - Blavatnik School of Government

Marcus Barber

Government of the Commonwealth of Australia - Land and Water

Date Written: October 10, 2017

Abstract

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Keywords: Indigenous rights, water, Indigenous relationships to water, limits of settler colonial legal system

JEL Classification: K1

Suggested Citation

Burdon, Peter D. and Drew, Georgina and Stubbs, Matthew T. and Webster, Adam and Barber, Marcus, Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law (October 10, 2017). (2014) 5 Settler Colonial Studies 334-49; U. of Adelaide Law Research Paper No. 2017-32. Available at SSRN: https://ssrn.com/abstract=3050909

Peter D. Burdon

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

HOME PAGE: http://www.adelaide.edu.au/directory/peter.d.burdon

Georgina Drew

University of Adelaide

No 233 North Terrace, School of Commerce
Adelaide, South Australia 5005
Australia

Matthew T. Stubbs (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia
+61883133530 (Phone)

HOME PAGE: http://www.adelaide.edu.au/directory/matthew.stubbs

Adam Webster

University of Oxford - Blavatnik School of Government ( email )

10 Merton St
Oxford, Oxfordshire OX1 4JJ
United Kingdom

Marcus Barber

Government of the Commonwealth of Australia - Land and Water

GPO Box 1700
Canberra, Australian Capital Territory 2601
Australia

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