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Rights and relationality: A review of the role of law in the human/water relationship

Erin O’Donnell
University of Melbourne, Melbourne, Australia; erin.odonnell@unimelb.edu.au

Cristy Clark
University of Canberra, Canberra, Australia; cristy.clark@csls.ox.ac.uk

Rachel Killean
University of Sydney, Sydney, Australia; rachel.killean@sydney.edu.au

ABSTRACT: In this review, we use legal scholarship to explore the way that the law constructs and maintains discourses on both water rights and water relationality. Water rights and water relationality can be constructed as opposite ends of a spectrum of legal modalities for defining and regulating the human/water relationship. However, when considered through the lens of law, rights and relationality can also be seen as intertwined. The legal instruments that create individual rights to take and use water situate those rights within frameworks that regulate the relationship between humans (both collectively and individually) and between humans and the water ecosystem. We begin with an identification and exploration of three water rights discourses in legal scholarship: water as a private right (to take and use), the human right to water, and the rights of rivers. We then consider emerging legal scholarship on the more complex reality of water relationality, focusing on the role of law in water commoning, Indigenous laws, and environmental restorative justice. In doing so, we identify points of intersection between these discourses as mediated through law. We also identify critiques of both water rights and water relationality discourses in law and the ways in which they shape our ability to respond to water crises.

KEYWORDS: Water law, water market, water rights, human right to water, rights of Nature, water commons, Indigenous water rights, relationality, environmental restorative justice, water justice