Locating Indigenous Peoples in Transboundary Water Law Jennifer Lynne Archer

Western University Scholarship@Western Aboriginal Policy Research Consortium International (APRCi) 1-2012 Transcending Sovereignty: Locating Indigenous Peoples in Transboundary Water Law Jennifer Lynne Archer Follow this and additional works at: https://ir.lib.uwo.ca/aprci Part of the Place and Environment Commons Citation of this paper: Archer, Jennifer Lynne, "Transcending Sovereignty: Locating Indigenous Peoples in Transboundary Water Law" (2012). Aboriginal Policy Research Consortium International (APRCi). 198. https://ir.lib.uwo.ca/aprci/198 TRANSCENDING SOVEREIGNTY: LOCATING INDIGENOUS PEOPLES IN TRANSBOUNDARY WATER LAW by JENNIFER LYNNE ARCHER LL.B., University of British Columbia, 1996 B.A., University of Alberta, 1993 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) January 2012 © Jennifer Lynne Archer, 2012 Electronic copy available at: http://ssrn.com/abstract=1997539 Abstract 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. ii Electronic copy available at: http://ssrn.com/abstract=1997539 Table of Contents Abstract.............................................................................................................................. ii Table of Contents .............................................................................................................iii List of Figures................................................................................................................... iv Acknowledgements ........................................................................................................... v Dedication ........................................................................................................................ vii Chapter 1: Introduction............................................................................................... 1 1.1 Anticipating Water Conflict................................................................................ 1 1.2 Transboundary Water Law, Indigenous Peoples and Sovereignty ..................... 3 1.3 Theoretical Framework and Methodology........................................................ 11 1.4 Deconstructing My Settler Self: On Becoming an Ally in Water Law ............ 17 1.5 Conclusion ........................................................................................................ 21 Chapter 2: International Water Law: A Deconstruction ....................................... 22 2.1 International Water Law and the Doctrine of Sovereignty............................... 23 2.2 Locating Indigenous Peoples in International Water Law................................ 37 2.3 Case Studies: Indigenous Peoples’ Interests in Two Transboundary Rivers.... 46 2.4. Conclusions: The Problem With Sovereignty................................................... 75 Chapter 3: Sovereignty as a Social Construct: Indigenous Perspectives .............. 82 3.1 Providing Context: Sovereignty in Western Traditions.................................... 84 3.2 Indigenous Sovereignty .................................................................................... 93 3.3 Conclusion ...................................................................................................... 121 Chapter 4: Transcending Sovereignty: Reconstructing the International Law of Transboundary Rivers.................................................................................................. 125 4.1 Asserting International Indigenous Rights: Methodology for Reform.......... 127 4.2 Recognizing International Indigenous Rights: Precedents for Reform .......... 137 4.3 Implications for International Water Law: Proposals for Reconstruction...... 148 4.4 River Basin Organizations as “Ethical Spaces”.............................................. 158 4.5 Conclusion ...................................................................................................... 166 Chapter 5: Conclusion: A Return to Ethics........................................................... 172 Bibliography .................................................................................................................. 184 Appendix........................................................................................................................ 204 Appendix A: Indigenous Water Declarations & Recommendations ......................... 204 iii List of Figures Figure 2.1: Map of the Columbia River Basin . ………………………………………182 Figure 2.2: Map of Tsangpo-Brahmaputra Basin………..………..………..………....183 iv Acknowledgements I have been supported and guided by many people on this journey. I extend my gratitude to my supervisor, Professor June McCue, for writing the article that inspired me to undertake this project, for providing invaluable advice throughout the drafting process and for always speaking to me in a way that my heart understands. I am also grateful to Professor Benjamin Richardson for his role as second reader on my committee. My thesis has benefited from the guidance of many UBC Professors, who provided invaluable comments that helped me develop my thesis in its early stages. I especially wish to extend my appreciation to Professors Natasha Affolder, Richard Paisley, Karen Bakker and Wesley Pue. I am also grateful for the unwavering support of Professor Douglas Harris, Associate Dean Graduate Studies & Research, Faculty of Law and Joanne Chung, Graduate Program Advisor, Faculty of Law. My thesis also benefited greatly from my conversations with fellow students who inspired me in their commitment to social justice. In particular, I wish to extend my appreciation to Lynda Collins, Pooja Parmar, Derek Christ and special thanks to Tashi Tsering, who was the first to introduce me to the beauty and wonder of the Yarlung Tsangpo River. I am grateful for the many conversations that I have shared with my mentor and friend, D. Anthony Knox, who challenges me to think deeply about the meaning and process of reconciliation. I also am grateful to Kindy Gosal, Director, Water & Environment, Columbia Basin Trust, who allowed me to participate in formative meetings of the Canadian Columbia Basin Forum and who inspired me in his commitment to grassroots initiatives within the Columbia River Basin. v Finally, I have been blessed with tremendous support and encouragement from my extended family. I especially wish to thank: ~ Sandy Umpleby, my mother, coach, mentor and role model - who read every word and whose faith in me gave me the momentum to see this through. ~ My father, Dennis Umpleby, for his unwavering commitment to integrity in all matters, which has become the foundation for my own life and work. ~ My brothers, Loki and James, for always challenging me to think critically and act creatively. ~ My sister, Jane Henderson, for feeding my family and nourishing my heart. Your gifts are immense. ~ My sons, Gavin & Fraser, for helping me to keep everything in perspective. Finally, I wish to extend my enduring and heartfelt gratitude to my partner, Viv, for never having any

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