2.1. The OECD 12 Principles on Water Governance
The Organization for Economic Cooperation and Development’s 12 Principles on Water Governance is a framework described by the OECD as, ‘must-do for governments to design and implement effective, efficient, and inclusive water policies’ [7
]. The principles are intended to improve the ‘water governance cycle’, from policy conception to implementation, based around three dimensions: ‘Effectiveness’, ‘efficiency’, and ‘trust and engagement’. Table 1
below lists the Principles. The OECD Principles are accompanied by an assessment tool containing indicators for each principle [8
]. The OECD Principles are included within the OECD Council Recommendation on Water [9
The OECD Principles are presented as a neutral and flexible tool. The principles do not distinguish between water management functions, uses or ownership [10
]. They are non-binding and non-prescriptive. This is appropriate because there is no ‘one-size-fits-all’ approach to water policy. Documentation about the OECD Principles emphasizes the importance of contextual factors and place-based needs [11
The development of the OECD Principles is consistent with the OECD’s mission to ‘promote policies that will improve the economic and social wellbeing of people around the world’ [12
]. The OECD evolved from the Organization for European Economic Cooperation (OEEC), which was formed in 1948 to enhance European cooperation after World War II [13
]. Canada and the USA joined the OEEC in 1960, extending the membership beyond Europe and creating the OECD. Canada and the USA, along with Australia and New Zealand (also OECD members) are often linked due to their history of British settler colonialism. These countries voted against UNDRIP in 2007, although all four later reversed their position. The OECD’s mission, combined with its membership, form the backdrop on which the OECD Principles were formed.
The OECD Principles were developed through the Water Governance Initiative (WGI), initiated in 2013 by the OECD [14
]. The WGI has a role in the ‘global water governance agenda’ and reports helping ‘shape national reform agenda and strategic plans (e.g., Mexico’s new National Water Law)’ [15
]. The WGI contributed to several international water documents, such as the Lisbon Charter [16
]. Although the WGI does not have decision-making authority, its advisory network shares information between a range of experts, policy makers, and practitioners.
To develop the OECD Principles, more than 100 participants were involved from the public, private and not-for-profit sectors. The WGI’s final Principles were adopted by the OECD Regional Development Committee in 2015. A Global Coalition for Good Water Governance was convened of parties that endorsed the OECD Principles [14
The OECD Principles are now endorsed by more than 170 entities, including 41 countries. Endorsement is a commitment to using the Principles, disseminating the Principles, and reporting back to the OECD.
Despite their growing acceptance and use, it is difficult to evaluate the extent to which the OECD Principles have directly impacted or improved practices. In 2018, the OECD surveyed the Global Coalition for Good Water Governance: 80% of the 85 respondents reported using the OECD Principles to inform policy or make other decisions; 42% reported using the OECD Principles to assess water governance in particular contexts; and 25% said the Principles were used to guide practices in their own organizations [14
]. But, only 28% reported using the Principles as a ‘package.’ Other respondents reported that individual Principles were used, depending on the context. The report does not provide a breakdown of results by sector, so it is unclear how the relative uptake by government compares to the private sector, for example.
The literature contains several examples of the OECD Principles being used as an analytical and auditing tool. The OECD Principles were used to compare water governance policies across six countries [17
], to discuss changes in France’s water governance [18
], and assess the Dutch Flood Protection Program [19
]. A key conclusion of the Dutch assessment was the importance of focusing on actual practices, not only on the overarching governance processes. These studies indicate the OECD Principles’ analytical utility.
2.2. Indigenous Water Justice and Water Colonialism
Settler states have tended to claim authority over water, excluding and obscuring Indigenous peoples’ systems of water governance. The claiming of waters by states, as part of the claiming of land and other resources, is an intrinsic and ongoing part of colonization [3
]. Following Robison et al., we use the terminology of ‘Indigenous water (in)justice’ and ‘water colonialism’ [2
Water colonialism manifests in many ways. These include, but are not limited to, dispossession, denial or erasure of Indigenous peoples’ management and water diversion [21
], pollution of water as a result of the state’s activities, destruction of water places, and inadequate drinking water and sanitation service delivery. The literature contains detailed discussions of water colonialism’s processes and impacts. For example, Phare’s discussion of First Nations water rights in Canada [22
] and many more, such as [2
Indigenous peoples continue to assert their sovereignty and rights to water, and to uphold their responsibilities to water. Working with creativity and strength, Indigenous peoples are using diverse strategies such as advocacy [22
], nation building [23
], policy development [24
], teaching and sharing, practicing love for water [25
], forming new governance frameworks [26
], community-based water monitoring [27
], developing new policy concepts such as ‘cultural flows’ [28
] and more.
Despite Indigenous peoples’ advocacy at national and international levels, states have avoided formalising Indigenous peoples’ rights to water. The lack of formal rights have perpetuated what Gupta et al. describe as the ‘legal and legitimate expropriation of the lands, waters, ecosystems and minerals’ [29
This section reviews UNDRIP with attention to the water governance implications. Echoing Robison et al., this paper used UNDRIP as the ‘normative backbone’ of our conceptualization of Indigenous water rights and justice [2
UNDRIP is a human rights standard. It is the most comprehensive [29
] and most significant recent recognition of Indigenous peoples’ rights by international law [30
]. UNDRIP is often cited in discussions of Indigenous water justice and water rights. Examples include Jackson, Marshall, Taylor et al. and Askew et al. [3
]. The Garma Declaration, the Mary River Statement, and the Assembly of First Nations National Water Declaration are examples of Indigenous peoples’/First Nations’ water declarations that reference UNDRIP [22
UNDRIP recognizes the inherent right of Indigenous peoples to self-determination. Drafted and negotiated by Indigenous people, UNDRIP was endorsed by the General Assembly in 2007, with a majority of 144 states voting in favor [34
]. At the time of the vote, Australia, Canada, New Zealand and the United States voted against the UNDRIP, later reversing their position to support the UNDRIP. All countries that endorse the OECD 12 Principles on Water Governance also support UNDRIP, except for Colombia, which was one of the 11 states that abstained from the UNDRIP vote. Countries’ endorsement of UNDRIP and the OECD Principles are listed in Appendix A
As a Declaration, rather than a Convention, UNDRIP is not legally binding under international law. Regardless, states which voted to support UNDRIP have indicated a commitment to uphold the rights within it. In some jurisdictions, the courts have started to refer to UNDRIP obligations [35
]. In Canada, Bill C-262, ‘An Act to ensure the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples,’ recently passed by the House of Commons [36
]. The bill requires Senate approval before coming into force. Similarly, the government of British Columbia recently committed to being ‘the first province in Canada to introduce legislation to implement UNDRIP’ [37
]. Given the constitutional division of powers in Canada in relation to water governance, legitimizing UNDRIP in federal and provincial legislation is essential.
UNDRIP is considered to have played a ‘very significant role in reshaping domestic legislation’ [35
]. Nevertheless, implementation is not without its challenges. The ten year review of UNDRIP indicated that, although progress has been made, implementation is not yet complete [38
]. In practice, the implementation of UNDRIP has been selective, with states strategically endorsing only those norms which align with their interests [39
], and exploiting any legal ambiguity by ‘rule shopping’ [29
UNDRIP declares that Indigenous peoples have the right to self-determination [1
]. As affirmed by Article 3 of UNDRIP, Indigenous peoples have the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’. Article 5 declares that Indigenous peoples have the right to maintain their distinct institutions, such as political and legal institutions. Article 25 of UNDRIP states that Indigenous peoples have the right to maintain their spiritual relationship with their lands and waters. Further, Articles 26 states that Indigenous peoples have the right to ‘own, use, develop and control’ their lands and resources, such as water. Indigenous peoples have the right to determine how their land and resources will be developed. According to Article 32, states must consult with Indigenous peoples and obtain their free, prior and informed consent, operating in good faith, prior to approving any project that would affect Indigenous peoples’ water, land or other resources [1
Noting that UNDRIP’s references to ‘lands, territories and resources’ are interpreted to include water [31
], Indigenous peoples’ rights to water are substantial. Indigenous peoples have the right to their own water laws, systems of water governance, and institutions, consistent with their own frameworks for water management. They have the right to maintain their spiritual relationships to water. Indigenous peoples have the right to decide if and how water resources will be developed or used. In many cases, the practical details of implementing UNDRIP are yet to be determined. Even the nature of ‘free prior and informed consent,’ and whether it implies a right to veto, is debated [31
Indigenous peoples’ right to govern water according to their own laws and institutions has profound implications for state water governance. UNDRIP calls for, in effect, the decolonization of water. Decolonization (i.e., the undoing of colonization) leads to material, meaningful outcomes: Repatriation of land and water. State power is potentially reduced and decentralized. Decentralization of power is one of the main threats to state water bureaucracies [40
]. Perhaps by no coincidence, the debates about UNDRIP were of ‘unprecedented length’ compared to other UN human rights standard-setting processes, revealing the ‘deeply entrenched normative and political tensions arising from the recognition of Indigenous peoples’ rights’ [35
]. As Tuck & Yang note, decolonization is ‘unsettling’ and uneasy [41
]. Ultimately, UNDRIP challenges states’ claims of water decision-making authority.
2.4. Disambiguation: UNDRIP and the Human Right to Water
Indigenous water justice is a human rights issue. However, it is distinct from the ‘human right to water’ (HRW) and to sanitation [42
]. In the dominant discourse, HRW refers to basic domestic water needs i.e., water for drinking, personal sanitation, clothes washing, food preparation, and household hygiene. The UN defines the HRW as ‘access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use’. The right to sanitation is defined as the right to ‘physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, and socially and culturally acceptable and that provides privacy and ensures dignity’. The UN has suggested a nominal volume of water to satisfy the HRW of 50 L–100 L per person, per day [43
]. The dominant interpretation of HRW has de-politicised the concept’s grassroots environmental justice origins, veiling power asymmetries and making the HRW appear to lack political content [44
]. This depoliticization reproduces contested narratives about human rights and development [45
]. Nevertheless, HRW continues to have value [46
] and has been used to achieve a range of water access and equity goals [47
The concept of the HRW differs from UNDRIP, as a water rights framework, in several ways. The HRW recognizes that all persons need water for life, health and dignity. Every individual has the right to water and the right to sanitation. By contrast, Indigenous water rights are collective rights that affirm Indigenous peoples are equal to all other peoples. To put it another way, the HRW can be imagined as the ‘minimum’ right to water and sanitation, which is distinct from subsistence rights, and also from the ‘maximum,’ or multi-level, rights of Indigenous peoples [29
]. Another difference is that the HRW does not define the institutional structures that provide water access [6
], whereas Indigenous water rights based on UNDRIP support self-determination via Indigenous peoples’ institutions and laws. Finally, the HRW is ‘abstract’ in the sense that it is universal and not connected to accessing a specific water resource [49
], which differs from Indigenous water rights that are located within place and history.
In sum, UNDRIP and the HRW can be viewed as two human rights standards that sit side-by-side, corresponding to connected, but different aspects of water.
2.5. Indigenous Peoples’ Water Governance Principles: Examples
Indigenous people’s water governance systems are central to achieving Indigenous water justice. It is relevant to consider the differences, if any, between the OECD Principles and Indigenous peoples’ water governance approaches.
A definitive comparison is not possible because Indigenous peoples’ water governance systems are heterogeneous. Furthermore, asserting a strict dichotomy between, say, ‘Western’ and ‘Indigenous’ approaches obscures diversity [31
]. However, it is possible to consider specific Indigenous water governance frameworks and compare these to the OECD Principles. Here are some Canadian First Nations examples and a brief overview of some prominent Indigenous international water declarations.
The fundamental belief that water is a sacred gift is shared among Indigenous peoples in Canada. More recently, it has been codified in Indigenous political declarations that assert inherent jurisdictional authority over water, as responsibilities and obligations given by the Creator. The Assembly of First Nations National Water Declaration is a resolution of over 600 First Nations Chiefs from across Canada, that establishes an overarching framework or statement of collective water principles, grounded in an Indigenous worldview [32
]. It calls for active engagement in water governance within traditional territories and treaty lands, including Indigenous customs, traditions and practices. This declaration calls upon settler state governments to ‘recognize, support and affirm all First Nation Water declarations’, and in doing so, reinforces other instruments, such as the provincial level Ontario Water Declaration of the Anishinaabek, Mushkegowuk and Onkwehonwe [50
]. The declarations are political instruments that reaffirm constitutionally-protected inherent rights within settler states. They support First Nations actions to apply, at the local level, their own laws and governance systems, which are intricately connected to land, water and place.
For the Anishinaabek, much of whose traditional territories lie in present day Ontario, Canada, the Seven Grandfathers teachings are among the most scared laws. Considered to be spiritual gifts sent by the Creator, the Grandfathers are the original instructions for how to maintain balance and harmony with all of creation, and a way to fulfill sacred responsibilities to the Creator. Maintaining scared relationships is important to ensure the sustainability of creation’s gifts. Applied to water, the seven principles of respect, wisdom, love, bravery, honesty, humility and truth, provide a path to water security [51
]. They impart a moral code or decision-making framework for managing appropriate human relationships with natural systems.
The Great Lakes Anishinaabe Seven Grandfathers and Water Governance Principles are [51
Value water in all its forms and all its uses
Equity of all people, equity of nature, nature’s rights to water
Respect water and all of nature, and one another’s views and ways
Use water wisely and consider all forms of knowledge
Accountability and transparency of actions, decision-making and motives
Commitment to collaboration and shared benefits
Address immediate problems and address new conflicts from resistance to change. Shortest/quickest route is not always the best path for sustainability [51
Similarly, the Haudenosaunee or Six Nations Confederacy of the great lakes region, are governed by Haudenosaunee law, which provides principles for responsible governance—governance founded on the understanding that all creation is interconnected and each entity has a sacred responsibility to fulfil, including water. By fulfilling responsibility, the sacred balance is achieved, and the gifts of creation will continue to provide for all.
The Haudenosaunee Constitution, known as the Great Law of Peace, is considered the ‘law of the land’, and at its core are three basic principles: peace, power (unity) and righteousness [52
], and like the Anishinaabek, this refers to all relations, including land and water. As well, the Haudenosaunee Creation Story offers fundamental teachings on the interconnectedness between all living and non-living entities, and arguably are early origins for what we now call integrative management and ecosystem-based approaches.
Paramount is the Thanksgiving Address, or the ‘words of thanksgiving,’ that begin and end Haudenosaunee political and social events. Through this oral ceremony important values are shared and transmitted. Systematically giving thanks establishes a collective mind and spirit, and reinforces principles of respect, responsibility, and reciprocity. Equally relevant to water, is the Dish with One Spoon principle. Codified in Indigenous wampum, the teaching is a reminder of ‘the collective responsibility of the people to share equally’ [52
]. Wampum beads are sea shells strung together to create intricate patterns with sacred and symbolic meaning. Wampum are used for official purposes and ceremonies, and narrate history, traditions or law. Early Haudenosaunee—Settler relations were often codified in wampum which were exchanged as formal agreements considered historic treaty within Indigenous law [53
]. The wampum provides foundational principles for what is considered collaborative governance in current discourse. In sum, these represent only a selection of the many teachings, considered law, that illustrate how the Haudenosaunee govern their interactions with water.
Managing relationships with water through Indigenous laws, practices and beliefs, emphasizes a highly ecological or environmental approach to Indigenous water governance. But it is also important to acknowledge that Indigenous peoples face current water needs and challenges common to other populations of society. Colonialism, Western water institutions, and contemporary lifestyles have created competing social, political and economic demands for water, that in some cases have altered the spiritual relationship with water. In Canada, where Western water governance dominates, many Indigenous communities struggle for sufficient quantities of quality water to meet their basic livelihood needs [54
]. Some lack potable drinking water, and water treatment facilities and infrastructure are inadequate, and human and financial capital are limited [55
]. In addition to ensuring domestic needs are met, Indigenous peoples also assert rights to water and a role in governance for purposes of navigation and travel, irrigation, environmental protection, commercial and industrial activities, and hydro-electricity [56
]. Traditional water laws, values and spirituality, within a contemporary context, highlight the importance of water governance to enable Indigenous inherent responsibilities for water, while empowering Indigenous peoples to address a diversity of water uses for current and future needs.
Some of the concepts described above are also reflected by Indigenous people’s international water declarations, the Garma and Kyoto Declarations. Both declarations articulate Indigenous frameworks for water and strongly advocate for Indigenous rights. The Garma Declaration was developed Indigenous water experts in 2008, following discussions about how to protect Indigenous interests in water and traditional knowledge. The Garma Declaration asserts that water is a spirit: ‘Indigenous peoples internationally share cultural and customary responsibilities to fresh water… Water is not a commodity. Water is a spirit that has a right to be treated as an ecological entity, with its own inherent right to exist’ [22
]. The Kyoto Declaration from the 2003 World Water Forum is an action plan for water, declaring Indigenous peoples as caretakers, with rights and responsibilities to defend and protect water. The preface describes Indigenous peoples’ relationship to water and their right to self-determination. It states that Indigenous peoples ‘recognize, honor and respect water as sacred and sustaining of all life’ [57
This section provides a few reference points related to Indigenous peoples’ water governance. The Haudenosaunee and Anishinaabe examples illustrate specific traditions that inform current practice, such as the water security framework based on the Anishinaabe Seven Grandfathers. The Ontario Water Declaration and National Water Declaration apply foundational principles to contemporary water challenges. The international declarations, Garma and Kyoto, assert some global commonalities in both Indigenous understandings of water and in the struggle against water colonialism.
2.6. Strategies for Indigenous Water Justice
Numerous solutions, strategies and mechanisms for promoting Indigenous water justice have been proposed. As mentioned previously, Indigenous peoples use a wide variety of strategies and practices to assert their rights. Much of the academic literature focuses on changes that states could or should make. These range from small changes, such as increasing Indigenous participation in state water management consultations, to complete overhauls of the ontological foundations of water governance. Examples of mechanisms include: Legislation, constitutional protection for collective rights, negotiated settlements or agreements, supporting Indigenous institutions/bodies that govern water, market mechanisms, and conferring legal personhood on rivers [30
Some of the options are complimentary, some are mutually exclusive. Drawbacks and benefits need consideration based on contextual factors [30
]. The merits of legal personhood for rivers, for example, are hotly debated. After the landmark legal precedent of Whanganui [58
], there have been calls for other rivers around the world to also be given legal personhood. Nevertheless, legal scholars are concerned that, in certain contexts, the mechanism might weaken, not strengthen, Indigenous rights [59
In addition, several frameworks have been proposed for conceptualizing the multi-dimensional issue of Indigenous water justice. The analytical model of ‘representation, recognition and redistribution’, proposed by Fraser [60
], has been applied to Indigenous water justice [3
]. Robison et al. discuss the themes of ‘Indigenous water rights’ and ‘political partnership’ and propose three intertwined dimensions of self-determination: socioeconomic, cultural and political self-determination [2
]. Zwarteveen and Boelens propose four echelons of contestation for water: Resource access, rules, authority and discourses [4
]. Water justice may also be considered through the lens of environmental justice literature [46
Despite the array of proposed solutions and frameworks, water colonialism remains a systemic issue, perpetuated at multiple levels. This paper focuses on water colonialism in one arena: An international discourse about water governance, embodied by the OECD Principles.