environmental science & policy 1920 (2012) 169177

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Adaptive basin governance and the prospects for meeting

Indigenous water claims
Rosalind H. Bark a,*, Dustin E. Garrick b, Catherine J. Robinson a, Sue Jackson a
a
b

CES CSIRO, Australia

Oxford Water Futures Programme, The University of Oxford, England, United Kingdom

article info
Published on line 21 April 2012
Keywords:
Indigenous water requirements
Adaptive governance

abstract
The United States and Australia confront the challenge of meeting multi-faceted Indigenous
water requirements within the wider context of intensified competition for freshwater
supplies and expiation of historic inequality of access. Fulfilment of Indigenous water
claims requires acceptance of currently unrecognised uses that may be in conflict with
water planning in irrigation-dominated basins. Adaptive governance regimes have been
applied to deal with uncertainly and change in water planning and allocation decisions,
including changes related to the recognition of Indigenous water claims, values, and
knowledge. This paper examines the prospects of adaptive governance regimes to combine:
(a) insights into decision-making and policy learning in contexts of high levels of uncertainty over the information base and legal and policy arrangements; with (b) institutional
arrangements to coordinate decision-making and accountability across multiple decisionmaking units, values and jurisdictions, to accommodate Indigenous water claims. In both
countries, efforts have involved (re)allocation of water entitlements and greater participation in multi-stakeholder basin planning. In this paper we find that a mix of these adaptive
governance mechanisms shows greatest promise for overcoming resistance to the recognition of Indigenous water claims.
# 2012 Elsevier Ltd. All rights reserved.

1.

Introduction

Efforts to effectively manage water resources are often

frustrated by the absence of planning mechanisms to enable
water decision-makers to work across jurisdictions, and the
need to consider a range of environmental and social values
(Connell et al., 2007; Robinson et al., 2011). This challenge has
led to conditions that create wicked planning problems
(Freeman, 2000) and planning regimes that are vulnerable to
surprise and crisis because management institutions become
rigid (Folke et al., 2005; Olsson et al., 2006).
A growing scholarship promotes the development of
adaptive governance regimes to enhance institutional capacity and improve water management policies and practices

(Robinson et al., 2009; Pahl-Wostl, 2007, 2009; Akamani and

Wilson, 2011). Adaptive basin governance regimes can deal
with uncertainty and change through planning mechanisms
that integrate science and other types of knowledge and
institutions that have the capacity to facilitate institutional,
technical and social learning (Lynch, 2009).
A significant new challenge to water governance in many
countries is Indigenous peoples contemporary claims to
access water (Rangan and Lane, 2001) and participate
effectively in water use decisions (Jackson et al., 2012; Getches,
2005). While water planning now places a greater reliance on
decentralised arrangements and processes, these regimes
have struggled to reflect that water claims are vested with
religious, cultural, and economic significance for Indigenous
societies (Weir, 2009; Osborn, 2009; Bark and Jacobs, 2009) and

* Corresponding author at: CSIRO CES, PMB 2, Glen Osmond, SA 5064, Australia. Tel.: +64 8 83038453; fax: +64 8 83038601.
E-mail address: Rosalind.bark@csiro.au (R.H. Bark).
1462-9011/$ see front matter # 2012 Elsevier Ltd. All rights reserved.
doi:10.1016/j.envsci.2012.03.005

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environmental science & policy 1920 (2012) 169177

that participation in water management is a form of

Indigenous attachment to land under Indigenous customary
law and governance (Hill et al., 2012; Morgan et al., 2004). In the
United States (U.S.) governance regimes have started to adapt
to spiritual, cultural, stewardship, and commercial values that
underlie water rights settlements (Osborn, 2009). Beyond
access to water, water quality at sacred sites is an emerging
water planning issue (Royster and Blumm, 2008).
In Australia and U.S. non-Indigenous settlement, water
use and development changed the quantity and flow patterns
of rivers in all but a small number of remote drainage basins
(Jackson, 2011; Glennon, 2002). Combined with early disenfranchisement from lands and resources, this constrained
opportunities for Indigenous communities to benefit from
water development (Schelhas, 2002; Smith and Colby, 2007).
Meeting post-colonial native title claims and participation in
basin planning presents a window for a transformative
planning response that can enable recognition of Indigenous
water-related interests and values (Lane and Hibbard, 2005).
However, there is a substantial gap between theoretical
prescriptions and practical experience gained by Indigenous
participants in adaptive basin governance. This paper
examines this gap by reviewing policy and planning evolution
in relation to the major objectives of adaptive basin governance.
Adaptive basin governance combines two streams of
literature: uncertainty and change that requires governance
regimes to adapt through ongoing learning within complex
social-ecological systems (Gunderson et al., 1995; Olsson et al.,
2006); and institutional integration and its emphasis on
collaboration and co-management partnerships between
structural and process-oriented institutions (Huitema et al.,
2009; Lane and Robinson, 2009) and institutional reforms
(Berkes, 2009). This distinction proves useful in tracking the
application of legislative instruments and court decisions and
non-binding, planning and participatory processes.
In Section 2 the analytic framework to assess the efficacy of
these pathways is presented. Section 3 introduces the three
case studies the Colorado and Columbia in the Western U.S.
and the Murray-Darling in south-eastern Australia. Although
collectively they represent a spectrum in the resolution of
Indigenous claims, the substantial differences between
responses in Australia and the U.S. heighten the value of
comparative analysis. Section 4 links the interactions between
the mechanisms of adaptive governance. The framework and
analysis provides opportunities to learn the limits and
strengths of adaptive basin governance to meet Indigenous
water needs in each basin.

2.

Analytical framework

Equitable access to water and effective participation in water

decisions can be achieved through legal entitlements and
deliberative and collaborative water planning processes that
enable non-state actors, including Indigenous people, to
participate in decision-making (Ferreyra and Beard, 2007).
Reviews of institutional responses designed to tackle complex
natural resource management (NRM) issues highlight the
variety of strategies that currently exist across the world, all of

which have had only partial success in practice (Castro and

Nielson, 2001; Lane and Robinson, 2009).
To structure the analysis, we compare case studies
according to three objectives of adaptive basin governance
arrangements expected to improve Indigenous access to water
and participation in decision-making: reduced uncertainty,
enhanced flexibility and increased integration across multiple
jurisdictions, values and scales of decision-making.
Adaptive governance regimes are advocated where there
are significant gaps in knowledge, and where considerable
uncertainty exists (Eberhard et al., 2009; Huitema et al., 2009;
Olsson et al., 2006). While there are many different types of
uncertainty in environmental planning (Wallington et al.,
2012), this paper focuses on uncertainty in the planning logic
used to allocate water entitlements.
Flexibility is capacity to avoid maladaptive institutional
arrangements that impede periodic changes to water allocation and planning in response to new information. Water
entitlement frameworks currently provide users with flexibility through proportional sharing (Australia) and water
markets (Australia and U.S.). Indigenous access to these
mechanisms determines the degree to which they can build
institutional capacity to adjust or create fundamentally new
governance systems that facilitate Indigenous water claims
(Olsson et al., 2006).
Effective adaptive governance regimes rely on polycentric
institutional arrangements that nest multiple centres of
decision-making and enable integration of roles and activities
between state and non-state actors and institutions (Dietz
et al., 2003; Hajer, 2003; Pahl-Wostl, 2007). The integration
agenda in NRM informs the design of governance regimes that
seek to enhance the co-ordination of decision-making activities and responsibilities and promote more efficient and
responsive management approaches (Lane et al., 2009).
Integration also seeks to enable different types of knowledge
(scientific, local, Indigenous) to be used to inform and support
collaborative water management decisions (Kroon et al., 2009).
The inclusion of Indigenous claims, knowledge and
preferred planning processes into adaptive governance
regimes has not been the focus of previous theoretical
research and the inclusion of this perspective affects the
way each element of adaptive governance is assessed and
framed.

3.

Method

The Western U.S. and Australia provide important case

studies to assess the role of adaptive basin governance. The
regions experience similar challenges relating to scarcity,
variability, multiple jurisdictions, and a commitment to
adaptation. Both have significant Indigenous populations
and have prompted international attention on the ability of
rich countries to ensure access and inclusion to water.
Comparisons of Indigenous water management are surprisingly limited and existing research has identified divergent
experiences (Tarlock, 2010). This case study comparison
applies the analytics of adaptive basin governance to understand these contrasting experiences and consider lessons
relevant across these two regions and internationally.

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environmental science & policy 1920 (2012) 169177

Table 1 Analytical framework: objectives and mechanisms of adaptive governance.

Attribute
Managing uncertainty

Enhancing flexibility

Integration

Description

Entitlement

Adaptive management of
complexity, non-linear
dynamics and surprises
Institutional mechanisms
that enable periodic and even
transformative changes to
water allocation and planning
in response to new knowledge,
values and entitlements
Planning mechanisms that
facilitate learning, sharing of
diverse information and
coordination between institutions

Quantification standards to define

Indigenous entitlements

Inclusion of Indigenous forms of

knowledge and resource sharing

Water marketing to allow

reallocation

Adjust planning targets and

include marginalised stakeholders

Provision of adequate
infrastructure and
institutional capacity

Inclusive planning with regular

opportunities to include diverse
sources of knowledge and
perspectives

The analytical framework of adaptive basin governance

illustrates the role of entitlements and basin planning
approaches (Table 1). In managing uncertainty, water entitlements quantify Indigenous claims; basin planning includes
Indigenous knowledge. In enhancing flexibility, entitlements
enable or constrain reallocation, including access to marketbased tools for all entitlement holders to reallocate water in
response to changing conditions and values; basin planning
provides periodic opportunities to review and update targets.
Integration occurs through entitlements that acknowledge
Indigenous claims and provide infrastructure and institutional capacity and, if necessary, transform water planning goals,
structures and processes based on Indigenous knowledge and
perspectives.
Two mutually consistent and reinforcing components are
used to test the efficacy of these approaches: are Indigenous
water rights met, and can Indigenous groups actively participate in basin planning? Next, we introduce national level
policy towards Indigenous claims before proceeding to specific
lessons learned in the evolution of institutional and collaborative approaches.

3.1.

The Western U.S.

Legal entitlements are the primary pathway for realising

Indigenous water requirements. First in the Columbia, and
latterly in the Colorado, the tribal water settlement process
has created opportunities for process-based responses including tribal capacity building, learning, and trust development as
well as basin-scale water planning. The result is a mix of
institutional responses to Indigenous claims to water and
management.
There is a 160 year history of Native American communities securing land title with the establishment of American
Indian Reservations.1 Water entitlements are attached to
land holdings in the Western U.S. (they are permanently
tradable with land and temporary water leases are permissible without changing title). However water rights for newly
created reservations were not explicitly granted. Indigenous
water aspirations had to wait for the 1908 Supreme Court
Winters v. United States decision that established implicit
1

The first were established in what is now Oklahoma under the

1851 Indian Appropriations Act.

Basin planning

federal reserved water rights for tribes.2 There are very few
restrictions on the use of Winters rights. Water can be used for
spiritual through commercial uses, but no individual water
rights are created (they are community rights) and they
cannot be sold. Winters rights are enforced on-Reservation
through mandatory water plans, metering and accounting,
and more recently off-Reservation with restrictions on nonIndian users who may infringe on these rights (Bark and
Jacobs, 2009). The quid pro quo is the release and extinguishment of all current claims against, and provision of waivers
for, federal and state parties.
The conversion of legislated federal reserved water rights
into rights to specific surface waters and/or groundwater
basins has been achieved in three ways: litigation, i.e. court
decisions; general stream adjudications (where all water
rights to a stream/river are catalogued and contested in a
court); and negotiated water rights settlements. Tribes often
pursue all strategies simultaneously (Colby et al., 2005).
Indigenous claims disrupt the status quo, and in response
settlements have emerged as the primary institutional
approach. Settlements are a negotiated process that brings
together the Indigenous claimant(s), federal government, state
government(s), and all other affected parties, e.g. water
utilities, irrigation districts, mining companies, and other
tribes.
A set of criteria underpin the federal settlement negotiation strategy (Fed Reg, 1990). Criteria 5a states that the federal
governments contribution to a settlement should not exceed
calculable legal exposure, i.e. costs of losing the case in a
court (McCool, 2006). That is the federal government should
only negotiate where its activities permitted either nonIndian surface or ground water development that affects the
water availability for the negotiating tribe. In practice the
settlement process has become institutionalised (McCool,
2006). Not all tribes are involved in negotiations, e.g. upstream
tribes because their access to water is secure (Lewis and
DeWeaver, 2011).

2
The federal reserved water rights doctrine established that
water rights would be reserved in sufficient quantities to meet
the purposes of Indian reservations created by the federal government. These rights have a priority date equal to the date the
reservation was created.

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environmental science & policy 1920 (2012) 169177

Settlements are adaptive; settlement water has evolved

from reallocation of entitlements and allocation of unallocated water to include conserved water and creative water
exchanges (Bark and Jacobs, 2009). In early settlements, water
and infrastructure was provided without cost to the tribe, but
more recent settlements share some of the costs with other
settling parties and the recipient tribe and incorporate
arrangements with irrigator and utility settling parties for
access to their conveyance infrastructure (Bark and Jacobs,
2009).
Using case study material from the Colorado River Basin,
with an emphasis on the State of Arizona, and the U.S. portion
of the Columbia Basin, we illustrate how entitlements and
basin planning have created opportunities for integration,
flexibility, and channels to address uncertainty. These case
studies demonstrate progress in meeting Indigenous water
claims and exhibit increasing commitment to adaptive basin
governance.

3.1.1.

The Colorado River Basin

The basin is multi-jurisdictional covering seven states in the

U.S. and two in Mexico. It is the homeland of dozens of Indian
Reservations. Three phases of institutional evolution to
resolving Indigenous water claims are: litigation about
competing states claims; integration of tribal claims into a
states entitlements framework via settlement; and more
flexible settlement negotiations and basin planning that
acknowledges future uncertainty of water resources in the
basin.
The cornerstone 1963 quantification decision Arizona v.
California centred on the need to resolve inter-state uncertainty on the apportionment of entitlements to the Colorado River.
In resolving these state-level claims, it was recognised that it
was necessary to integrate the unquantified rights of federally
recognised reservations on either side of the rivers mainstem3
(Arizona v. California pp. 373 U.S. 595597). A decision was made
to reserve sufficient water to irrigate all Practicably Irrigable
Acreage on the reservations (Arizona v. California pp. 373 U.S.
600601). This quantification standard provided certainty for
tribal water users.
In the 15-year hiatus that followed this decision, negotiated
settlements gained favour. In this second phase, a number of
Arizona tribes received high security and unallocated Colorado River entitlements, a portion of which they leased to
Phoenix area cities (Colby et al., 2005). The 1980s was a time of
perceived plenty in water resource allocation in Arizona: there
was little regard to the uncertainty of future basin water
resources, the build out of entitlements in the upper basin,4 or
to the zero sum aspects of settlements on late entrants to the
settlement process.
The third and current phase is one where negotiated
settlements are integrated into a wider water resource
management framework as exemplified by the omnibus
Arizona Water Settlement Act of 2004. The settlement water
3
The Chemehuevi, CA; Cocopah, AZ; Yuma, CA/AZ; Colorado
River, CA/AZ; and Fort Mohave, CA/AZ/NV Indian Reservations.
4
The Upper Basin States do not currently fully utilise their legal
entitlements, however, to meet future demands these states are
funding infrastructure to increase their take from the river.

portfolio incorporated water of different reliability and quality

ensuring that the tribes share climate change impacts on
water resources and have incentives for creative exchanges
with non-tribal parties (Bark and Jacobs, 2009).
This basin is noted for its reliance on court decisions and
settlements; however there is more recent history of collaborative basin planning. The 2009 Secure Water Act established
the Colorado Basin Study to assess long-range demand and
supply trends and management alternatives to address water
imbalances. Engagement with tribal (and state) stakeholder
communities has focused on technical aspects of long-range
planning tools (including training in model and scenario
development), which have been used to define and select
future management options.

3.1.2.

Columbia Basin

This basin has a track record for meeting indigenous water

claims by including tribes and confederations in collaborative
basin planning and water settlements. The Basin traverses
multiple state jurisdictions, including seven states in the U.S.
and a province in Canada.
The basins institutional evolution to meet indigenous
water claims can be divided into three broad phases:
uncertainty about competing property claims for water and
freshwater fisheries; integration of Indigenous knowledge and
values through collaborative water planning; and institutional
flexibility to accommodate tribal property rights over salmon
fisheries.
Declines in salmon migration due to river development
catalysed intense conflict in the 1970s and, in response,
efforts to restore habitat and assert tribal harvesting rights.
Salmon fisheries are an iconic feature of the cultural and
ecological landscape and the tribal economy. The 1974 court
decision in the U.S. v Washington (384 F. Supp. 312) upheld
property rights to salmon fisheries established under the 1855
Stevens Treaties, which granted signatory tribes half of the
harvest from usual and accustomed places. A subsequent
court case, resolved in 1980, held that harvesting rights
implied rights to adequate fishery habitat. This first phase
addressed the uncertainty about competing competing
property claims by establishing strong reserved tribal rights
to salmon harvests, including the water needed to sustain
salmon habitat.
In the aftermath of the court cases of the 1970s, the second
phase of institutional evolution featured Tribal involvement in
watershed planning. This phase began in the late 1980s and
1990s; it focused on habitat restoration and related water
management issues (Benson, 1996). Collaborative watershed
planning has been institutionalised through financing directed to tribal partners in federal and state programs. A range of
scientific advisory and technical capacity building efforts have
been designed to include tribal representation in decisionmaking about salmon fisheries and wider water management
activities.
The need to restore salmon fisheries and associated habitat
spurred two decades of reform to address Indigenous water
claims through negotiated water rights settlements (e.g. the
Nez Perce of Idaho), restoration projects and incentive-based
mechansisms to reallocate irrigation water rights for salmon
habitat restoration. This third phase of reforms enhance

environmental science & policy 1920 (2012) 169177

flexibility to shift water across competing values. An alignment of interests between salmon restoration priorities and
tribal water needs culminated with the 2008 Fish Accords
between the federal hydropower utilities responsible for
salmon mitigation and a number of tribes. Meeting tribal
water claims has evolved from contentious court cases to
resolve Treaty Rights for fish harvests, through collaborative
basin planning to implementation of court decisions and
planning targets through innovative negotiated settlements
and incentive-based institutional mechanisms.

3.2.

Australia

Australian institutional responses to Indigenous water claims

differ substantially from those of the U.S. A direct comparison
finds greater recognition in the U.S. of the relationship between
land, water and livelihood (Behrendt and Thompson, 2004;
Getches, 2005). The absence of Australian treaties and judicial
decisions that recognise and affirm commercial development
rights as a basis of Indigenous claims to water has resulted in
limited institutional structures to enhance Indigenous participation in water governance (Durette, 2008). Institutional
processes have emerged, and tentative steps towards establishing water entitlements for customary (and non-commercial)
Indigenous purposes are occurring in a small number of
Australian jurisdictions (Jackson and Langton, 2012).
The year 1993 was a turning point with the High Courts Mabo
decision and Native Title Act 1993. The Mabo decision recognised
the entitlements of Indigenous people to their traditional lands
under their traditional laws. The Native Title Act defined the
scope to include rights over waters located within traditional
estate boundaries. It confirms governmental ownership of
water and minerals, while guaranteeing rights to customary use
of resources for sustenance (hunting, gathering and fishing). A
right to protect sites or areas of significance that include waters
has been recognised as a native title right (Bartlett, 2004). Such
rights are subject to existing laws and grants and are more
limited than rights attached to land. Legal specialists such as
McFarlane (2004) and Bartlett (2004) expect that native title
rights to water will continue to be interpreted as non-exclusive
and non-commercial in nature, but uncertainty about their
extent and nature remains high and the process has few
achievements (Strelein, 2004).
Customary uses protected by the Act are often dependent
on the quality and quantity of freshwater (Finn and Jackson,
2011). Unlike the U.S. practice of weighing up calculable legal
exposure, Australian water managers are taking a narrow
view of their obligation to protect native title from impairment
by over-allocation upstream (Behrendt and Thompson, 2004;
McAvoy, 2006).
Another important phase of institutional evolution was the
2004 National Water Initiative (NWI). Among many other
objectives to adapt water governance regimes across the
continent, the NWI negotiators intended to address Aboriginal
rights and interests (Connell et al., 2007). It explicitly
recognises the special character of Aboriginal interests in
water and notes that access is to be achieved principally
through planning processes (clauses 5254). Jackson et al.
(2012) note impediments specific to the treatment of Aboriginal interests, including the neglect of commercial interests in

173

policy definitions of water property, lack of mandatory

measures, and insufficient attention to genuine community
partnerships in water planning.
Although federal and state governments reformed their
water statutes to implement the NWI, there is no easily
identifiable Australian model of water resource legislation.
Approaches to allocating water to Indigenous uses and
meeting Indigenous values in water quality and river
management are inconsistent, ad hoc, and underdeveloped.
Only the State of New South Wales (NSW) gives substantial
legislative attention to Indigenous benefits and aspirations.
The NSW Water Management Act 2000 permits specific purpose
licences to be accessed by Aboriginal people or communities
for cultural or commercial purposes. Unlike U.S. Winters rights,
there are numerous restrictions limiting the flexibility of these
Aboriginal-specific entitlements both in use and volume
(cultural access licences are capped at 10 ML and community
development licences at 500 ML per licence annually). They
cannot be traded and must be purchased annually unlike tribal
communities in the U.S. which are granted rights, funding and
infrastructure access to put water to use. To date, only one
cultural licence and no commercial licences have been
approved (Jackson and Langton, 2012).
Collaborative information sharing and communication
processes have suffered from a number of constraints,
including the lack of a right to participation in Australian
water laws (Durette, 2008). Recent studies observe that
Indigenous expectations to directly participate in water
management institutions are not being met (National Water
Commission, 2011; Jackson et al., 2012). The Australian
experience lags behind that in the U.S. with little access to
water, except for customary uses, and only recent participation in collaborative planning.

3.2.1.

The Murray-Darling Basin

The Murray-Darling Basin (MDB) spans four states and

Australias Capital Territory. Basin water resources are
managed by a federal entity, the MDB Authority (MDBA).
There are 35 discrete Indigenous groups with varied rights and
interests in the MDB (Weir, 2009). Aboriginal land ownership in
the basin is negligible (Taylor and Biddle, 2004). Statutory land
rights regimes introduced in NSW in 1983 (Morgan et al., 2004)
provided a window for NSW Aboriginal groups to claim land
and water before the first MDB Cap5 (cap on water extractions)
came into effect in 1994, however, in many parts of NSW
embargoes on new water licences were already in place
(Jackson, 2011).
Native title legislation has not brought further recognition of
land and water entitlements. By May 2005, there were more
than 30 registered and unregistered applications for native title
in progress, but only three had reached conclusion stage. Native
title was found to have been extinguished without the need to
compensate claimants in all three cases (Venn and Quiggin,
2007). The weak legal standing of Aboriginal people in Australia
has affected the capacity of Aboriginal people to retain
customary connection and attain legal rights to water bodies.
5
The cap limits the total extraction amount to the 1994 level of
development, effectively preventing the issuing of any new water
licences on inland rivers.

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environmental science & policy 1920 (2012) 169177

Each state and territory within the basin has their own
approach to the inclusion and integration of Aboriginal water
interests in water management. In some cases, Aboriginal
participation in stakeholder reference groups has enabled the
inclusion of Indigenous knowledge to set water standards and
inform adaptive water decisions, for instance the Yorta Yorta
in the Barmah-Millewa forest environmental watering (MDBC,
2005).
The Water Act 2007 provides impetus for integration; it
requires that the MDBA prepare a Basin Plan to set a new lower
cap on extractions for the health of the basins ecosystems. In
fulfilling its obligations to assess the socioeconomic impacts of
reform, it must develop a description of the water resources
and the uses to which those resources are put, including by
Aboriginal people (Sec 22(1)). There is a legislative requirement
for Aboriginal representation on the Basin Community
Committee and an Indigenous Water Sub-Committee. There
is also opportunity to align some Aboriginal flow preferences
with environmental watering goals (Jackson et al., 2012).
Despite an emerging political discourse around Aboriginal
specific water allocations (e.g. a cultural flow), in the absence
of entitlements established by either common law or statute,
there is little flexibility to accommodate Aboriginal water
claims without reallocation. Uncertainty about the knowledge
base and delivery environment continues to be a highly
contentious issue. Indigenous groups have advanced proposals to recognise their interests in water allocation and
management decisions (Weir, 2009), but the concept and
techniques required to specify and manage Indigenous water
requirements remain undeveloped (Jackson and Langton,
2012). Aboriginal groups are working within existing processes
to enhance their input and participation in water use decisions
(Jackson et al., 2012). Indigenous advocacy has achieved
iterative and local success in water allocations and decision-making, for instance a very small number are utilising
water licences obtained as part of their property entitlement to
water culturally and environmentally important wetlands on
their lands in partnership with conservation agencies.

4.

Discussion

The three-part analytic (Table 1) provides a simple scheme to

combine two theoretical traditions and examine the effectiveness of alternative institutional pathways to meet Indigenous
water needs through adaptive basin governance. Uncertainty
underpins adaptive management and prompts development
of flexible institutional arrangements to allow social learning
and avoid maladaptive lock-in (Eberhard et al., 2009). Integration is a hallmark of basin governance and seeks to foster
inclusion and coordination across geographical, political and

socioeconomic differences (Robinson et al., 2011; Wallington

et al., 2012).
The case studies illuminated the legacy effects of the legal
and institutional history of each basin on the relative
predominance of entitlement versus planning pathways. In
the absence of legal entitlements in Australia, recent attempts
to establish licenses, properties, or co-management agreements, have been necessarily flexible and local. Without a
process to access legal entitlements and without significant
government funding for capacity building in Aboriginal
communities and water planning, planning mechanisms will
prove less effective. In the MDB the virtual absence of
Aboriginal land holdings translates into scant influence over
water policy and access water (Jackson and Langton, 2012).
In contrast, tribal reservations are vast in our U.S. case
studies and national decrees and treaty legislation have
codified expectations and pathways for tribal engagement
in water allocations and basin planning. The relative balance
between the mechanisms differs with collaborative
approaches over-laying treaty rights in the Columbia. In the
Colorado, the zero-sum feature of satisfying tribal claims has
motivated affected parties to negotiate omnibus settlements.
These settlements seek to resolve multiple tribal water claims
and outstanding water conflicts, while promoting flexibility in
water sources and infrastructure and the sharing of future
supply uncertainty.
Future supply uncertainty and outstanding Indigenous
claims has again shifted the focus to basin planning. This
collaborative process facilitates the sharing of information,
such as river and climate modelling, and provides opportunity
for the inclusion of Indigenous knowledge. In the Colorado,
this has included updating projections of the rate of build-out
of future tribal water use as communities rapidly adapt to the
flexibility afforded to them with entitlements, e.g. leasing
water and water banking. In the MDB and in the Columbia
Basin, planning is a more bottom-up approach that recognises
the legitimacy of local decision-making. However, in the MDB
the lack of entitlements means that comprehensive integration remains a goal rather than a reality; institutionalised
discussions between the MDBA and the Murray Lower Darling
Rivers Indigenous Nations and the Northern Murray-Darling
Basin Aboriginal Nations groups are building trust and
knowledge sharing between the parties. The Colorado is again
an exception with top-down federally mandated basin-wide
planning and participation. Although this may now be pro
forma, it might gain predominance as a pathway for resolving
what are likely to be highly contentious settlements for late
tribal entrants.
Table 2 highlights the security of water rights (rated
according to the presence or absence of a legal settlement),
durability of the reform (whether recent or long-established),

Table 2 Pathways for meeting Indigenous water requirements.

Colorado
Columbia
Murray-Darling

Entitlements (water or fishery)

Basin planning

Secure (water), long established (19602000)

Secure (fishery), long established (1970s);
secure (water), very recent (2000s)
Insecure (water), very recent (1990s2000s)

Technical, very recent (2000s)

Comprehensive, long established
(1980s)
Ad hoc, very recent

Pathway (effectiveness)
Structural (moderate)
Hybrid (high)
Process-oriented (low)

environmental science & policy 1920 (2012) 169177

and sustained versus ad hoc integration of Indigenous

participation in water planning. The effectiveness of the
resulting pathways are ranked with high a reflection of
longstanding, secure entitlements and sustained planning to
meet Indigenous water needs (Columbia) and low effectiveness a function of insecure, ad hoc arrangements for water
rights and planning (Murray-Darling).
Adaptive governance regimes rely on structural and
process-oriented institutions that have the capacity to learn,
change and transform management responses into more
desired configurations (Olsson et al., 2006). The case studies
highlight the advantages of negotiated, collaborative settlements for creating a new governance regime that can adapt to
Indigenous claims to water in over-allocated, contested
basins. Settlements are built on detailed hydrologic data,
comprehensive planning and capacity building. Agreements
negotiated by Indigenous parties from a position of relative
strength have the potential for greater integration (OFaircheallaigh and Corbett, 2005).
The MDB case reveals another lesson: although there is
little compulsion on water managers to re-allocate water for
Aboriginal uses, the protection and enhancement of cultural
values is central to arguments for recognition of Aboriginal
claims. This is an opportunity for integrating Aboriginal values
in entitlements and planning. In the Colorado, tribal communities have not relied on subsistence rights and cultural
heritage to gain access to water, but on court-mandated
quantification standards (Practically Irrigable Acreage or
Tribal Homelands), with the Zuni tribes settlement a stark
exception.6 In the Columbia the basis for tribal water
entitlements are treaty rights for fish harvest.
A limitation in our approach is other indicators of tribal
access and participation are needed to quantify progress and
examine trends within and across the cases. This analysis
thus provides a preliminary assessment of enabling conditions as a precursor to more in-depth analysis of available
metrics of water access, use and planning activity.

5.

Conclusions

The case studies examined evidence for the theoretical

proposition that Indigenous water needs and participation
opportunities are best realised through hybrid pathways.
Instructive to water managers and Indigenous communities in
other basins and countries is the prerequisite of land holdings
that set up conditions to attain water entitlements and thence
for positive feedbacks with planning pathways. In the longterm adaptive water governance regimes are likely best
achieved through a combination of scientific, institutional
and social processes, such as those exemplified by settlements
and bottom-up basin planning. These mechanisms bring
together stakeholders in new institutional arrangements and
iterative learning processes.
6
This settlement relied not on Practicably Irrigable Acreage
(defined under Section 3.1), but a second quantification standard,
the Homeland Test (Salt River Project et al., 2001). It provides tribes
with more flexibility in quantifying entitlements for cultural and
commercial uses.

175

The benefits of the adaptive governance framework (as

compared to conventional planning approaches) lie in the
potential to develop new institutions and transform planning
paradigms by introducing new components and ways of
governing water planning. The case studies and matrix of
pathways and their effectiveness provide a guide to other
nations and Indigenous communities. Although the diversity
of economic, social and cultural values that permeate water
decisions in a specific basin means that adaptive governance
regimes face challenging reform issues that are further
complicated by questions of what criteria to apply to inform
this review, the processes used to undertake this assessment,
how to determine what has been learned from past experiences, and how Indigenous groups and water planners should
respond to these lessons. For instance, without legal or
statutory processes to obtain land and water entitlements, a
nation may be limited to collaborative approaches that may
not provide relatively weak stakeholders with the standing to
negotiate. However, these processes, if designed for iterative
stakeholder learning, capacity- and trust-building, may
provide foundation for an alternative future pathway; one
that is preferable to the real risk of generating conflict by either
ignoring Indigenous claims or addressing them through fiat
that lacks widespread support.

Acknowledgements
The authors are grateful for the constructive advice of Dr. Onil
Banerjee and two anonymous reviewers.

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