Archive for June, 2018

Countdown to the Guarani Aquifer Agreement coming into force: will it be effective in promoting transboundary groundwater governance?

Monday, June 18th, 2018

The following essay is by Pilar Carolina Villar, Professor of Environmental Law at Federal University of São Paulo. She can be reached at pcvillar [at] gmail.com.

The signing of the Guarani Aquifer Agreement (Portuguese / Spanish / English [unofficial]) on August 2, 2010, by Argentina, Brazil, Paraguay and Uruguay was received by the water community with excitement due to the few number of treaties dedicated to transboundary aquifer cooperation, the absence of a water conflict, and the short time it took to secure the signatures after the end of the Guarani Aquifer System Project. In 2012, Argentina and Uruguay ratified the treaty with the promulgation of Law n° 26.780/2012 and Law n° 18.913/2012, respectively. Thereafter, the Agreement faced a period of stagnation until May 2017 when Brazil ratified it with Legislative Decree n° 52/2017. Almost a year later, in April 2018, Paraguay ratified the Agreement when it approved Law nº 6037/2018.

After almost 8 years, the Agreement is in the final stage of coming into force, although Paraguay has yet to deposit its instrument of ratification with Brazil, which is the official depository for the Agreement. According to Article 21, the Agreement will officially enter into force on the thirtieth day after that deposit occurs.

Schematic hydrogeological map of the Guarani Aquifer System. Source: The Guarani Aquifer Initiative – Towards Realistic Groundwater Management in a Transboundary Context, Case Profile Collection Number 9. Sustainable Groundwater Management: Lessons from Practice (Nov. 2009)

The Agreement’s ratification by the four countries represents a new phase in the process of cooperation among the Guarani countries. It allows implementation of the Guarani Aquifer Commission, and the possibility of restarting cooperative projects that will promote the development of knowledge and management of the Guarani Aquifer System. However, considering the long ratification process of the Agreement and the role of other transboundary water organizations in the La Plata Basin, should we be optimistic in the context of transboundary aquifer cooperation?

In view of the lack of international agreements for the joint management of transboundary aquifers, the ratification of the Agreement represents a milestone to encourage more countries in South American to include groundwater cooperation in their practice of international affairs. Moreover, the ratification opens a path for the establishment of a common institutional arrangement dedicated exclusively to groundwater issues among the four countries. The existence of an international agreement could also be used as a positive force for attracting international funds from organizations like the Global Environment Fund, World Bank, Organization of American States, UN Environmental Programme, and UN Development Programme, which may be interested in supporting the operationalization of the only international groundwater cooperative arrangement in South America. Finally, the Guarani Aquifer States could become more interested in promoting cooperative projects and actions regarding the aquifer since the Agreement will soon be binding on all of them.

The future of the Guarani Aquifer Agreement is dependent especially on the will of the countries to enforce the agreement’s institutional framework. On this point, the projections are not necessarily encouraging. While the Guarani Aquifer Commission is the pillar of the Agreement, it is unclear what its powers will be or whether it will have legal personality under international law. Moreover, it is impossible to foresee when the countries will establish the Statute of the Commission. Regardless, it does not seem to be a priority in the short term, especially considering the current political and economic conditions of the Guarani countries.

Even with the Guarani Aquifer Commission, cooperation should not be taken for granted. The La Plata Basin has a complex institutional system made up of fourteen organizations that have legal personality under international law and four technical committees. All of them face difficulties in consolidating themselves as leading players in cooperation over the La Plata basin. In fact, the amount of institutions contrasts with the relatively low number of joint actions and products resulting from their work. Even the Intergovernmental Coordinating Committee of the Countries of the Plata Basin, which is the oldest water-related organization in the La Plata Basin area, still has problems receiving financial support from its member countries, and largely depends on international funds to conduct studies in the basin. As a result, the Guarani Aquifer Commission runs the risk of becoming another water-related organization with very limited influence.

Implementation of the Agreement and creation of the Guarani Aquifer Commission could benefit from the existence of CeReGAS – Centro Regional para la Gestion de Aguas Subterráneas (Regional Center for the Management of Groundwater), an international center located in Montevideo, Uruguay, that is dedicated to promoting groundwater management and cooperation in the regional context. While CeReGAS and the Guarani Aquifer Commission have different mandates, since the first is a regional center supported by UNESCO and the other is an organization established by an international treaty restricted to the Guarani Aquifer countries, they might build an alliance to optimize funding and technical resources. Their scope is closely related since both focus their efforts on the promotion of groundwater cooperation, one in the South American context while the other in the Guarani Aquifer region. CeReGAS has also developed a case study on the Guarani Aquifer, and has produced documents on and disseminated the results of the Guarani Aquifer System Project.

The Agreement soon will come into force and become a binding instrument for the Guarani Aquifer States. However, the questions of when and how it will be implemented remain unanswered. The challenges to applying the Agreement are some of the same facing other water agreements in the region: overcoming the tendency of building fragile water-related institutions, improving cooperation between institutions or between States, expanding transparency in actions of cooperation, and guaranteeing financial support. In this sense, the first step for the countries involved is to establish the Commission and define its capacity, a mission that could be facilitated by the presence of CeReGAS. Then, the States involved must overcome the traditional challenges related to political will, institutional capacity and efficiency, as well as the provision of funds to support the Commission and the execution of cooperative projects. Only time will tell if the Guarani Aquifer States will cooperate successfully over the joint management of the Guarani Aquifer.

Posted in Latin America, South America, Transboundary Aquifers | 1 Comment »

The Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic), the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Indigenous Rights and River Rights

Monday, June 4th, 2018

The following essay is the sixth in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay / third essay / fourth essay / fifth essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Katie O’Bryan, a Lecturer at Monash University in Melbourne, Australia. She can be reached at Katie.OBryan [at] monash.edu.

Introduction

Historically, Victoria’s water laws have not recognised Aboriginal people as having a role in managing and protecting Victoria’s waterways. That has now changed with the enactment of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic). This Act is significant because not only does it recognise a role for Aboriginal people in the management and protection of the Yarra, it is also said to give an independent voice to the river.

The Independent Voice of the River and International Developments

This idea of nature being given an independent voice has come to prominence recently, the most well-known example being the granting of legal personhood to the Whanganui River, Te Awa Tupua, with an entity called Te Pou Tupua to be the human face of the river and to represent its interests.

The Yarra River. Photo courtesy of Katie O’Bryan.

Giving legal personhood to a natural object with a guardian to protect its interests is an idea that has existed in theory since 1972 when Christopher Stone wrote his famous article ‘Should Trees Have Standing? ‒ Toward Legal Rights for Natural Objects’. Stone’s idea has been gaining momentum over the last few years, including several recent court rulings which have recognised the rights of rivers, namely the Atrato River in Columbia, and the Ganges and Yamuna Rivers in India. However, with the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Aotearoa New Zealand was the first country to enact legislation giving legal personhood and an independent voice to a river.

But how similar are the Victorian and New Zealand Acts, and what do they mean for the role of Indigenous people in river management?

Key features of the Yarra River Protection (Wilip-gin Birrarung murron) Act

Before outlining the Act’s key features, it is important to note that the Wurundjeri people, the traditional owners of much of the country through which the Yarra River flows, were involved in the development of the proposal for the Act. And, in a first for Victoria, Wurundjeri elders were present and spoke in support of the bill when it was introduced into Parliament.

Against that backdrop, the features of relevance for Aboriginal Victorians in the Yarra River Protection (Wilip-gin Birrarung murron) Act are outlined as follows.

The first is that the Act treats the Yarra River as one living and integrated natural entity. This holistic approach to the protection of the Yarra reflects Aboriginal conceptions of the Yarra; the Act’s preamble noting that it (the Yarra) is alive, has a heart and a spirit, and is part of their Dreaming. This is also evident from the Aboriginal language used in the title, ‘Wilip-gin Birrarung murron’, which means ‘keep the Birrarung [Yarra] alive’ in Woi-wurrung, the language of the Wurundjeri.

Secondly, to reflect the Yarra as a single entity, the Act provides for the development and implementation of an overarching strategic plan to guide the future use and development of the Yarra. The strategic plan will be developed by a lead agency appointed by the Minister (Melbourne Water) and will be informed by a long-term (50 year) community vision. Both the strategic plan and community vision require active public participation in their development.

The strategic plan will also be informed by the Yarra protection principles. These principles include general, environmental, social, cultural, recreational and management principles. Statutory decision-makers along the Yarra must have regard to these principles when performing their functions or exercising their powers in relation to the Yarra. Importantly, the cultural principles highlight Aboriginal cultural values, heritage and knowledge, and the importance of involving traditional owners in policy planning and decision-making.

The Act also establishes the Birrarung Council, the ‘independent voice for the river’. The Council comprises 12 community and skill-based members, two of whom must be chosen by Wurundjeri people. This is the first time in Victoria that Aboriginal people have been given a legislatively mandated voice in river management. Significantly, the Council is precluded from having any government representatives as members.

The Council has two main roles. The first is to provide advice to the Minister generally on the administration of the Act, and more particularly on the protection of the Yarra and on the strategic plan.

Its second role is to advocate for the protection and preservation of the Yarra. This role, along with the prohibition on government representatives on the Council, forms the basis for it being described as the independent voice of the river.

The Whanganui River. Photo Courtesy of Katie O’Bryan.

The Yarra River Protection Act 2017 and the Te Awa Tupua Act 2017 compared.

So how does the New Zealand legislation differ from the Victorian legislation given that both are said to give an independent voice to the river, and both emphasise Indigenous relationships with the river?

A major difference lies in the status of the river itself. Although the Yarra River Protection Act provides for the declaration of the Yarra for the purpose of protecting it as one living and integrated natural entity, it does not give the Yarra independent legal status with all of the rights and liabilities that come with that status. Accordingly, the Birrarung Council, although able to advocate on behalf of the Yarra, is not its legal guardian. It is not given any legislative power to exercise the rights, or take responsibility for any liabilities, of the Yarra River. It is essentially an advisory body only. The Te Awa Tupua Act, on the other hand, specifically provides for the Whanganui River to have ‘all the rights, powers, duties, and liabilities of a legal person,’ which are exercised on behalf of the river by Te Pou Tupua, the human face of the Whanganui River. This means that unlike the Birrarung Council, Te Pou Tupua, can initiate legal proceedings to protect the Whanganui River if the River is damaged or if any of its values are compromised.

That leads to another distinction between the Yarra River Protection Act and the Te Awa Tupua Act. Both statutes recognise the river as single living and integrated natural entity requiring protection. However, the river values to be protected in the Te Awa Tupua Act (called Tupua te Kawa) are intrinsically Māori oriented in their conceptions of the River. On the other hand, the river values to be protected in the Yarra River Protection Act, as reflected in the Yarra protection principles, are more wide-ranging, encompassing not just Aboriginal cultural values, but also post-settlement cultural diversity and heritage, as well as the values embodied in the environmental, social, recreational, management and general protection principles.

Finally, the Birrarung Council was established to ensure that various different community interests are involved in protecting and promoting the Yarra River, hence the need for it to have 12 members. Te Pou Tupua, with only two members (one appointed by the government and one by iwi (referring to the Māori tribes) with interests in the Whanganui River), was established to represent the Whanganui River, not community interests – that role is given to a different entity, Te Kōpuka, which has 17 members including up to six Māori members.

What are the outcomes for Indigenous river management?

The granting of independent legal status to the Whanganui River as part of the Treaty settlement in the Te Awa Tupua Act does not give the Whanganui Iwi a direct say in the management of the Whanganui River, because the members of Te Pou Tupua act on behalf of the River, not on behalf of their respective appointees. In that regard, it is not necessarily of benefit to the Māori. However, this is tempered by the fact that the river values to be upheld by Te Pou Tupua are intrinsically Māori in orientation, and that other aspects of the settlement, such as Te Kōpuka, and the role of the Whanganui Iwi’s post-settlement governance entity, do provide for Māori participation in the river’s management.

The Yarra River Protection Act does not extend as far as the Te Awa Tupua Act in giving independent legal status to the Yarra. Nor does it create legal capacity in the Birrarung Council to seek redress in court for any damage done to the Yarra for failing to comply with the Yarra protection principles. It does, however, give an advisory voice to Aboriginal Victorians in the management of the Yarra. Although the strength of that voice has yet to be tested, it does signal a shift in the future of river management in Victoria towards one which is more inclusive of Aboriginal people.

Further reading:

Katie O’Bryan, ‘Giving a Voice to the River and the Role of Indigenous People: The Whanganui River Settlement and River Management in Victoria’ (2017) 20 Australian Indigenous Law Review (advance)

Katie O’Bryan ‘New law finally gives voice to the Yarra River’s traditional owners’ The Conversation, 25 September 2017

 

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