2008 / 02

AccountingforIndigenousCultural FlowsinWaterPlanning
MelanieDurette ISSN11710853

Introduction
Although there have been great improvements in water planning processes that reflect an increased understanding of the complexity of water management, much work remains to better understand and incorporate the various values dependent on the water system in question. Water planning to date has tended to focus on water allocations which support the environmental or ecological needs of a system (Gardner, 2005). However, merely accounting for the environmental or ecological values within a water regime is not an adequate encapsulation of the values within a system. One area where this argument has been raised relates to the accounting of indigenous values in water allocation processes. Indigenous people have spiritual and cultural connections with land and water that have been part of their existence for thousands of years (Craig, 2006). This needs to be understood and recognized when decisions are made regarding water allocations that could potentially impact values that are integral to the identity of indigenous people. It has been argued that sustainable solutions to the worlds water problems will only be reached if decisions made are based on a deep understanding of how culture affects and is affected by the myriad interactions between people and water (UNESCO-IHP, 2008, p.3). Despite the widespread and growing acceptance of this argument within water management agencies worldwide, indigenous values to date are rarely accounted for in a category of their own in water plans and governments are only beginning to consider how to quantify these values for allocation purposes. What follows is a discussion of the rationale behind the notion of cultural flows in relation to the incorporation of indigenous values in water planning, with reference to the legal and policy basis for their inclusion. Key factors that must be addressed if water

planners are to meaningfully account for these values are then identified.

Legal and Policy Basis

International context International human rights discourse recognizes the relationship of indigenous people to water. For example, the recent United Nations Declaration on the Rights of Indigenous Peoples Article 25 specifically affirms the right for indigenous people to realise their values in water:
Indigenous people have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard [emp. added].

Article 32 goes further to confirm the right to determine and develop priorities and strategies for the development or use of their lands and other resources, as well as impose a duty on States to consult and cooperate in good faith with their indigenous peoples particularly in connection with the development, utilization or exploitation of their mineral, water or other resources. Similarly, Paragraph 5 of Recommendation 23 of the Convention on the Elimination of All Forms of Racial Discrimination calls upon states to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, which includes water resources. Finally, Millennium Development Goal 7 seeks to ensure environmental sustainability and increase access to safe drinking water by promoting recognition and respect for cultural diversity as well as collaborative and inclusive actions for sustainability of water and cultures.

National frameworks At the national level, indigenous values are increasingly being considered by governments in national water frameworks. Despite this, globally considerable work remains in order to balance competing rights and interests in a way that accurately reflects indigenous values in water (Durette, 2008). For the most part, such water strategies to date have focused on the protection of indigenous customary values (Jackson & Morrison 2007) and may not then accurately reflect the complexity of indigenous relationships to water. The problem may be largely related to the fact that indigenous people are often excluded from the drafting of such policy. For example, in Australia indigenous people did not participate meaningfully in the negotiation of the National Water Initiative (NWI) which currently only acknowledges indigenous interests in water to a limited degree (Armstrong, 2008). While the NWI does not specifically provide for cultural flows, it does suggest that indigenous social, spiritual and customary objectives and strategies for achieving these objectives should be incorporated 1 into water planning. Indigenous rights to water, including those of use and access as well as management, receive further recognition through statutory regimes and case law. A good example of this is New Zealands Resource Management Act 1991 that governs the allocation of water and requires decision makers to provide for Maori interests when managing water. The courts in New Zealand have been a primary source of guidance to further Maori interests under this Act, for example, providing direction about what is expected of regional councils in implementing this provision (Bennett, 2007). On the issues and determination of cultural water allocations, though, the guidance provided from courts and legislation worldwide is minimal to non-existent.

the provision of means to participate in any consultation on water planning (Indigenous Peoples Kyoto Water Declaration); full consideration of indigenous interests as water trading mechanisms emerge (Craig, 2006); allowing for full decision making power over any cultural flow for the indigenous community that receives the allocation (Craig, 2006); further work on the development of tools to give practical effect to implementation of indigenous values in water planning and management (Bennett, 2007); and meaningful joint partnerships between indigenous people and governments in the management of water and water resources.

Conclusion
In order to ensure that the market mechanisms, which are increasingly being employed as a key aspect of water reform, achieve greater equity in allocation among users of water, it is increasingly important to ensure that indigenous interests in water receive recognition under the law and in national policy (Durette, 2008; Behrendt & Thompson, 2004). This includes equal consideration of both customary and commercial interests in water resources, and the methods of accounting for both will be different. In the past, providing for an adequate environmental flow has been seen as generally sufficient to meet the cultural needs of indigenous communities (Jackson, 2004). However, the notion of a cultural or indigenous flow provides an additional layer of protection for indigenous cultural values in water. Environmental flows do not entirely encapsulate the spiritual and cultural connections of indigenous people to water. Craig (2006) distinguishes between the concepts of environmental and cultural flows in recognition that they may overlap in their content or definition, but cautions that protecting the cultural values will require the consideration of different issues such as the care for particularly significant sites. Rather than being synonymous with environmental flows, Craig suggests that water flows which are needed to protect cultural values should be seen as overlapping, thus the notion of a cultural flow requirement. While cultural flows are not necessarily always going to require more water than would be allocated to environmental flows, the possibility should always be considered when making policy decisions on water flow allocation (Craig, 2006).

Realizing Indigenous Values

Recent discourse around cultural water flows suggest some key factors that must be addressed if water planners are to meaningfully account for indigenous values in water (though this list is by no means exhaustive): the inclusion of indigenous representation in water planning (Armstrong, 2008);

See s. 52ii.
2

This line of reasoning has led to the emergence of the notion of flows for tangata whenua values in water policy discourse in New Zealand which in effect creates considerable space for the realisation of Maori values in future water allocation and planning processes (Ministry for the Environment, 2008). Since cultural values often encompass a variety of interests, including recreation and amenity needs, it may be that the strongest level of protection would be the recognition of an indigenous flow in the water planning process as distinct from general cultural values.

Indigenous Peoples Kyoto Water Declaration. Available at <http://www.indigenouswater.org/IndigenousDeclarati ononWater.html> Jackson, S. (2004). Preliminary report on aboriginal perspectives on land-use and water management in the Daly River Region, Northern Territory. A report by CSIRO for the Northern Land Council. Darwin. Available at <http://www.terc.csiro.au/resources%5CCSIRO%20%20Daly%20River%20Cultural%20Values%20Report .pdf> Jackson, S. & Morrison, J. (2007). Indigenous perspectives in water management, reforms and implementation, in K. Hussey and S. Dovers (eds), Managing water for Australia: The social and institutional challenges. Canberra: CSIRO Publishing. Ministry for the Environment. (2008). Proposed national environmental standard on ecological flows and water levels: Discussion document. Wellington: Ministry for the Environment. UNESCO-IHP. (2008). Water and cultural diversity: Towards sustainability of water resources and cultures. Paris: UNESCO-IHP, Division of Water Sciences.

References
Armstrong, R. (2008). An overview of indigenous rights in water resource management. Revised: Onshore and offshore water rights discussion booklets, Lingiari Foundation. NAILSMA: Darwin. Behrendt, J. & Thompson, P. (2004). The recognition and protection of Aboriginal interests in NSW rivers. Journal of Indigenous Policy, 3: 37140. Bennett, A. (2007). Recognising and providing for Maori values in water allocation. Unpublished thesis. Massey University, Palmerston North, New Zealand. Craig, D. (2006). Indigenous property rights to water: Environmental flows, cultural values and tradeable property rights. In Adapting Rules for Sustainable Resources Use, Alex SmajgI and Silva Larson Eds. CSIRO Sustainable Ecosystems, Davies Laboratory, Qld. Durette, M. (2008). Indigenous legal rights to freshwater. Australia in the International Context. CAEPR Working Paper No. 42/2008. Canberra: CAEPR, ANU. Available at <http://www.anu.edu.au/caepr/Publications/WP/CAEP RWP42.pdf> Gardner, A. (2005). Environmental water allocations in Australia. Paper for the Sustainable Water Management International Symposium. Canberra: Australian National University.

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