Querying water co-governance: Yukon First Nations and water governance in the context of modern land claim agreements
ABSTRACT: There exist few examples of functioning water co-governance systems where Indigenous and settler colonial governments work together to share authority for water on a nation-to-nation basis. In this paper I examine the multiple barriers to achieving water co-governance, highlighted by a multidimensional framework including distributional, procedural and recognitional (in)justices. I apply this framework to a case study in the Yukon, Canada, which is based on research conducted in partnership with four out of fourteen Yukon First Nations (Carcross/Tagish, Kluane, Tr'ondëk Hwëch'in and White River First Nations); all are in areas where the water governance system is shaped by Indigenous water rights and authorities that are acknowledged in modern land claim and self-government agreements. Despite the many substantive and positive changes resulting from the explicit acknowledgement of Yukon First Nation water rights, I find that this system falls short of achieving co-governance. In particular, Yukon First Nations critiques highlight the limitations imposed by the continued assertion of 'Crown' jurisdiction over water and by the marginalisation of Indigenous legal orders that follows from the privileging of settler worldviews and forms of governance. Thus, co-governance arrangements depend not only on the distributional justice of shared jurisdiction; Indigenous legal orders and relationships to water must also be reflected in the procedural and recognitional justices of the decision-making processes and institutions that are developed.
KEYWORDS: Co-governance, environmental justice, Indigenous law, Indigenous water governance, modern land claims, Yukon, Canada