Chapter 2 explores the tensions in debates about indigenous water rights in legal and political theory, setting up the key propositions for this book.I argue that legal and policy mechanisms that seek to recognise cultural relationships with water and involve indigenous peoples in water governance should strive towards recognising indigenous water relationships but, more importantly, indigenous water jurisdiction. This argument is central to the consideration of the four country studies included in this book, in which law and policy is sometimes able to provide a space for indigenous groups to exercise jurisdiction in planning and governing their water resources. I also contend that the reason states should provide for indigenous water rights is an imperative of distribution. Such rights are needed not only to remedy the historical injustice of non-recognition but because indigenous exclusion from water law frameworks is ongoing.

In chapter 3 I introduce the two key regulatory tendencies relevant to the consideration of indigenous water rights in comparative law in this book. One of these developments is the idea that governments should ‘commoditise’ the natural environment and use private property rights and market mechanisms in water regulation and allocation; an approach typically counterposed with the idea of treating access to water as a fundamental human right, entitled to all. The other is the tendency to devise new legal mechanisms like ‘legal personality’ to protect the ‘rights of nature’ and address social or community concerns around water governance and quality. Both trajectories play out repeatedly in debates about indigenous rights to water in comparative law, and resulting legal and policy frameworks in the country studies considered in this book. I argue that most regulatory frameworks are in fact a combination of public and private interests, and suggest that both private and public mechanisms may have a place in debates about how best to provide for indigenous water rights.