Hydroelectricity and Contol of Water: where property, inddeigenous and environmental rights collide

1. Hydroelectricity and Contol of Water: where property, inddeigenous and environmental rights collide Bradford w. morse Professor & dean of law Unuiversityof Waikato, Hamilton, aotearoa new Zealand Academy of Environmental Law, Tarragona, Spain July 2014

2. overview • Forms of Hydropower; Pros & Cons • Indigenous Peoples’ spiritual connections to water • Aboriginal title to water • Treaty confirmation of water rights in US & NZ • Recent Canadian & NZ developments re Indigenous water rights • International law human right to water • UNDRIP • Conclusion

3. Hydropower • Solar energy evaporates water that form clouds that transported by wind & eventually condenses into rain & snow creating natural flow of freshwater • Hydroelectricity is specific form of hydropower that converts the kinetic energy of water flow into electrical energy via: • Gravity or natural energy of large waterbody (often dam & reservoir) with controlled release down steep pipe (penstock) to drive turbine that generate electricity • Run-of-the-river (RoR) scheme using natural rise & flow of river to spin turbines [usually small & erratic production dependent upon natural sources of water supply] • Pros – minimal fuel cost for operation & energy generation, for transport & for storage; limited negative environmental impacts post construction • Cons – conventional hydro often involves largescale flooding that generates release of significant carbon from trees & plants + later decomposition can cause algal blooms, dissolved methane release, release of toxic chemicals naturally in rock (arsenic, mercury, etc); negative impact on aquatic life; intro of exotic & invasive species; block migratory species spawning; flooding to create reservoir displaces Indigenous & local communities with loss of cemeteries, sacred sites & disrupt religious obligations

4. Indigenous spiritual connection to water • While huge differences exist among the 375+ million Indigenous peoples globally, it is relatively usual to find certain key common denominators: • World view does not distinguish between land & water as a matter of their own traditional law or governance jurisdiction • Cultural & religious beliefs see animate & inanimate beings as possessing own spirits such that a rock is as much alive with its own spirit as is a bird, deer or tree – or water – especially in its collective form as rivers, lakes & seas • Certain waterbodies are especially sacred and must be protected and left unharmed • Freshwater is seen itself as important & not to be wasted; for some (like Maori) certain waterways are seen as direct ancestors (tupunaawa) such that there is a strong legal obligation for the people to serve as guardians of the waterway’s health & survival [kaitiakitanga] as the waterways themselves have great mana [status or importance] • Water itself is to be shared as it is essential for all living things

5. ‘Western’ law & values • Euro derived values emphasize notions of private rights in relation to tangible & intangible things that is protected by the state as this is viewed as the most productive use of human intelligence and natural resources. The state’s role is as governor, justice provider, wealth redistributor via public services & also ‘owner’ of certain natural resources. • Euro derived law separates water from land in several ways: public right of travel over navigable waters; private rights of waters surrounded by private landowner; private rights of beds of non-navigable waters to midpoint; private rights to groundwater immediately under private land • Euro derived law generally not see water itself as ownable except when captured [bottled] or it is converted to ice • Except for waters made holy via religious blessing, no water or waterways seen to carry spiritual significance outside human intervention

6. Clash of values • Euro derived values favour private but also endorse state exploitation of natural resources & especially for energy generation. • Hydropower is ongoing low cost generation [post construction] & relatively sustainable [depending upon rain & snowfall] & green so attractive to government, investors, operators and environmentalists • Hydropower often disrupts or destroys local aquatic species on which Indigenous peoples depend for food & spiritual sustenance [eels in NZ, salmon in BC, etc] • Large hydropower dams commonly flood Indigenous communities • The only Indigenous response that can be understood by the state is to assert property rights to waterways & to water itself OR rights to control its use even though these concepts may be ‘foreign’ to traditional legal system & values

7. Asserting indigenous rights to & Control of water • Western USA – Winters Doctrine of USSC confirm Indian reservations included rights to sufficient water quantity to meet needs of all Practically Irrigable Acreage [PIA] at time of creation, whether used for farming or not, that expand over time as population grows & can be leased or sold. Early creation of reservations means Tribes get high priority allocations of available water; this enables hydropower development by tribal governments under tribal law on waterways wholly within reservation & ability to demand flow from upsteam hydropower schemes. • Australia – High Court in Blue Mud Bay [NT v Arnhem Land Aboriginal Trust 2008] has recognized exclusive Aboriginal ownership of coastal sea including right to approve commercial fishing but exist simultaneously along with public right of navigation. Decision tied to Cwth Aboriginal Land Rights (NT) Act. Native Title Act not seen as providing similar rights nationally to prevent hydropower or to have own systems.

8. Asserting indigenous rights to & Control of water - canada • Canada – Indian Treaties not yet seen to create similar water rights priorities as in US re Winters Doctrine. Cdn courts yet to embrace continued sovereignty of First Nations (FNs) as USSC did in 1831. Most reserves of FNs are along waterways but few expressly include any of those waterways within reserve boundaries. Aboriginal title remains outstanding in much of country but still unclear if that includes ownership or property rights in water & waterways. Modern treaties over past 39 years usually include some ownership interests in beds of waters within confirmed exclusive Indigenous lands & some over past 20 years include right to water quantity & quality. Some FNs are now involved in small RoR hydro systems. These rights also include some ability to block or influence external p.roposedhydro systems

9. Asserting indigenous rights to & Control of water – Aotearoanz • Maori leaders issue Declaration of Independence in 1835 to protect own shipping fleet; recognized by Great Britain Crown but inability to control settlers lead Maori to negotiate Treaty of Waitangi (ToW) 1840 in 2 languages; TeTiriti o Waitangi had 512 Maori chiefs’ signatures; 39 signatures in Englishwith fundamental differences intended by British representatives as direct translation of English version would have been rejected • “sovereignty” vs “kawanatanga” (Art 1); • “full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties” vs “tetinorangatiratangao oratouwenua o ratoukainga me o ratoutaongakatoa” (Art 2) • Crown implement English NOT te reo versions, causing huge conflicts, then wars, then confiscations/raupatu, then individualization of land title by Native Land Court, then massive land loss; only being reversed since 1992 thru new treaty settlements

10. Asserting indigenous rights to & Control of water – Aotearoanz #2 • Waitangi Tribunal in TeIka Whenua Rivers (1998) & in Whanganui River (1999) Reports reaffirm that Maori had full possession and jurisdiction over rivers prior to ToW which had not been validly extinguished by legislation nor by gift, sale or Crown seizure of adjacent lands. Even English version of “full exclusive and undisturbed possession” included Maori ownership & control of waters to which hapu or iwi had major territorial and unifying spiritual interests [might not include small waterbodies]. This was different from & larger than general kaitiaki duties re environment. While Maori have always shared water with pakehaneighbours, their rights included the right to develop water resources or benefit from any external development like hydropower. • Crown has negotiated binding co-management regime over Waikato River with iwi that include local government & iwi to work together to manage river clean-up. Others are coming. • While Crown assert no one owns water, it recognises that Maori can own beds of specified waters outright and that Crown & SCNZ in 2013 confirm Maori had proprietary interests in water that Crown promised to address in further negotiations. This was not enough to stop Crown from selling 49% shares of 3 Crown hydropower companies

11. UNDRIP • Reflect IP Worldview: Article 25 - “Indigenous peoples 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 seasand other resources and to uphold their responsibilities to future generations in this regard.” Article 26 (1) “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” - Past tense suggests re former territory only but means more than repeat of Art 25 or would be redundant (2) “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.” - Re current lands similar to ILO 169 & in accord with decisions of IACHR, ACHPR & UNHRC (3) “States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.” - apply re both (1) & (2)

12. Conclusions • International law has recognised a general human right of access to potable water as both a ‘hard law’ enforceable right & a ‘soft law’ Millenium Goal • UNDRIP deepens that respect specifically for Indigenous peoples to include right to own, develop & govern waterways within their traditional territories with state obligations to respect those rights & make them effective. Getting DRIP respected, however, is THE huge challenge in almost every nation. • Establishing FPIC as the norm also provides global recognition that they should be full participants in any plans affecting their waterbodies. • While interests of Indigenous peoples & environmentalists often coincide, this will not always be true re hydropower schemes. • Assertion of proprietary rights as the means to get leverage is not always a comfortable fit for Indigenous peoples yet there is little choice available currently to either be the proponent hydro developer or its opponent.