1. Introduction
Indigenous and ethnic communities in Latin America are increasingly adopting activist strategies to confront the ongoing dispossession of, and encroachment into, their lands and resources.Footnote 1 By ‘activism’, we refer to the various forms of relational engagement and action that actors undertake within social movements and networks to pursue their goals through collective action, contentious politics, and mobilization of resources, often in the context of political, cultural or environmental conflict.Footnote 2 Community activism comprises a range of practices and strategies led by communities, their leaders, and organizations in response to external actions that disempower community authorities, undermine local autonomy, and facilitate the dispossession of traditional territories.Footnote 3 As explained by Di Giminiani, it is difficult to ‘pin down the intrinsic features’ of Indigenous community activism in Latin America.Footnote 4 Indigenous activists in Latin America adopt a wide range of strategies from open confrontations with police or military forces to alliances with state actors and even participation in development projects as a platform for advancing community development agendas. Their commonly used strategies in pursuance of their goals include grassroots organizing, protests and blockades, and efforts to empower local communities to influence the policies and institutions affecting their lives.
As in other parts of Latin America,Footnote 5 community activism in Ecuador and Colombia has intensified in recent years as a response to more frequent encroachments into local territories, and to increasingly powerful private actors who extract from, and use, community lands and resources.Footnote 6 The rise of community activism also stems from repeated failures by the state to protect communities and the resources on which they depend from extraction.Footnote 7 Governments may even facilitate private encroachment into community territories in line with their own economic and political agendas, and turn a blind eye to the actions of illegal or armed groups who seek to control these territories.Footnote 8 In response, community activism may target both state policies that justify and prioritize the interests of external actors over Indigenous and community rights, as well as the proliferation of illegal activities made possible by the state’s absent or negligent oversight.Footnote 9
Although there is increasing pressure from private actors to extract from and use lands and resources of Indigenous peoples and ethnic communities in Latin America, state and non-state actors are also increasingly cognisant of the legal rights of Indigenous and ethnic communities, and the obligations that state and non-state actors owe to the communities and their territories.Footnote 10 This is apparent, specifically, in the proliferating decisions of courts and tribunals recognizing the legal rights of rivers, together with the rights of the people who live with and depend on rivers, their resources, and connected territories.Footnote 11 These ‘river rights’ have typically been recognized by courts and tribunals alongside other human rights, such as the rights to a healthy environment, water, health, food sovereignty or security, communal life, culture, territory, and consent or consultation.Footnote 12 In some jurisdictions, such as Ecuador, courts have recognized and protected the rights of rivers (to flow and the maintenance of their ecological cycles) as an application of broader constitutional protection of the rights of nature.Footnote 13 In others, as is the case in Colombia, courts have recognized rivers as being ‘legal subjects’ with their own rights to maintenance and conservation. The courts have done so by inferring legal rights for rivers from a combination of environmental and Indigenous human rights protections, sometimes referring to the ‘biocultural rights’ of Indigenous and ethnic communities.Footnote 14 In both countries, as we explore in detail below, river rights have been devised by the courts through creative judicial reasoning, drawing on a combination of individual and collective human rights together with transversal constitutional principles like human dignity, the social welfare state, rule of law, and buen vivir (living well).
Legal rights for rivers, and broader legal mechanisms recognizing the rights of nature, are routinely put forward as a potentially groundbreaking approach to environmental protection and governance.Footnote 15 Some legal commentators and scholars argue that the recognition of river rights, together with associated communal rights such as Indigenous territorial rights,Footnote 16 may offer enhanced opportunities for communities to exercise territorial autonomy,Footnote 17 providing an opportunity for them to lead or collaborate in the maintenance, protection, and restoration of their lands and resources.Footnote 18 However, even when river rights have been recognized, commentators have observed that, in some cases, powerful external actors continued to undermine community autonomy over river and broader territorial governance.Footnote 19 They emphasize that despite the recognition of legal rights for rivers, state law and state institutions in Latin America have routinely failed to guarantee communities’ territorial rights and, in some cases, have even perpetuated community rights violations by favouring the interests of external actors in furtherance of their own political and economic agendas.Footnote 20 This has called into question the utility of river rights as a legal strategy, both for environmental purposes and for communities to resist external territorial encroachment.Footnote 21
In this article, we ask whether river rights cases brought by Indigenous and ethnic communities might offer new legal avenues for protecting and enhancing their territorial autonomy, both within and beyond the courtroom. We consider this question by examining two Latin American appellate decisions in which the court recognized the rights of rivers alongside other individual and collective human rights (including environmental and Indigenous rights).Footnote 22 These cases are examples of strategic litigation led by Indigenous and ethnic communities as part of broader activist agendas for the protection and enhancement of their territorial autonomy.Footnote 23 In both cases, the rulings acknowledge the spiritual and cultural connections of the communities with their river territories, which they see as living systems with which they are deeply connected and owe obligations of care.Footnote 24
The first case we examine is the 2019 decision of the Multi-Competency Court of the Province of Pastaza (Provincial Court) of Ecuador.Footnote 25 This case was brought by the Kichwa Indigenous communities of Santa Clara to halt the construction of a hydroelectric dam on the Piatúa River.Footnote 26 The second case is the 2016 decision of the Colombian Constitutional Court concerning the Atrato River in the department of Chocó, in response to demands by Afrodescendent and Indigenous Emberá Katio ethnic communities that the Colombian government take steps to address illegal mining in their territories.Footnote 27
Our author team is a mixture of experienced and early-career legal scholars of Indigenous and non-Indigenous ancestry, one from Latin America and the other with Latin American kinship ties and significant doctrinal and fieldwork experience.Footnote 28 We acknowledge that our positionality is located outside the Indigenous and ethnic communities driving the court cases that we study, and that we have been trained in and practised law within Western legal traditions and institutions in Latin America and Australasia; this inevitably affects our analysis of the cases. We have engaged in a conscious effort to decentre (or avoid privileging) Western law and knowledge over Indigenous or ethnic knowledge systems in our evaluation of the cases, although we acknowledge that our study focuses on legal and rights frameworks existing within settler-colonial legal traditions.Footnote 29 Our relationships with Indigenous peoples in comparative contexts over our combined 50 years of legal research and practice experience have fostered a strong desire for us to challenge dominant, settler, and Western legal frameworks in order to seek out ways to better accommodate Indigenous authority and autonomy. For this reason, our methods go beyond traditional doctrinal legal analysis to contemplate the role and influence of the social movements and activism of Indigenous communities in legal processes.
To understand our two river rights cases, we are interested not just in the law but also in the social and physical context of the law.Footnote 30 Between 2017 and 2024, we collaborated on a research programme studying, in comparative context, the river rights cases emerging from the Colombian and Ecuadorian courts.Footnote 31 During this period, we used traditional doctrinal legal methods of case law analysis, statutory interpretation, and contextual policy evaluation to examine and understand the legal and constitutional relevance of the cases discussed in this article, in the comparative context of each jurisdiction’s legal system.Footnote 32 We complemented our doctrinal analysis with ‘law in context’ research methods,Footnote 33 including reviewing interdisciplinary literature about river rights, Indigenous rights, and the rights of nature from Latin America and beyond, across humanities and social science disciplines. We tested and triangulated our socio-legal analysis through semi-structured interviews and engagement with over 50 key actors and experts involved in river rights cases either directly or indirectly (lawyers, government officials, non-governmental organizations (NGOs), academics, and community members) conducted between 2017 and 2024.Footnote 34 The purpose of the interviews was not to produce a primary source of data for analysis using social science methods but to test and triangulate our findings via a law in context method, in order to minimize the chances of us misinterpreting the local legal context.Footnote 35 We also examined multiple community websites and publicly available community documents to understand the objectives and scope of community activism related to river rights.
The article is structured as follows. In Section 2, we review the scholarly literature relevant to Indigenous and ethnic community activism in Ecuador and Colombia, and discuss the relationship and tensions between (a) activist strategies focused on community autonomy and (b) the legal recognition of river rights. In Section 3, we introduce our two river rights cases from Ecuador and Colombia, showing how, in each case, the communities engaged the courts to recognize and protect river rights by drawing on a combination of individual and collective human rights protections together with transversal constitutional principles. In Section 4, we explore how local communities have leveraged these river rights cases as new legal avenues for resisting external encroachment into their territories, with potential practical significance far greater, and deeper, than environmental outcomes alone. In both cases, local communities have used a combination of activist strategies to leverage river rights legal frameworks inside and outside the courtroom, to compel governments, courts, and private actors to better respect their territorial autonomy and leadership.
Our analysis of these two river rights cases in Colombia and Ecuador confirms that viewing river rights purely as a legal strategy for environmental protection risks overlooking the central role of Indigenous rights, knowledge, and aspirations in the cases,Footnote 36 as well as the significance of their activism in driving the cases inside and outside the courtroom.Footnote 37 We conclude in Section 5 by arguing that, by strategically leveraging river rights as part of activist agendas, the communities are opening up new and incremental opportunities for more ‘pluralist’ river governance in which their particular cultural knowledge and perspectives inform river protection and governance alongside state and development perspectives.Footnote 38
2. Activism, Autonomy, and River Rights
It is well documented in the scholarly literature and in the decisions of the national courts of the respective countries that Indigenous peoples in Ecuador and Colombia (although they comprise a range of diverse cultures, language groups, and customs) have a physical, genealogical, and spiritual relationship with their ancestral territories, which they have maintained since pre-colonial times.Footnote 39 Afrodescendent peoples, brought forcibly to Latin America during the transatlantic slave trade, have similarly developed close relational ties with their territories.Footnote 40 These relationships can be characterized by their reciprocal nature, whereby the survival and well-being of the communities are closely linked to the health and stewardship of their lands and resources.Footnote 41 For these communities, the territory is more than just a physical, political, or economic space: it is fundamental to their collective identity.Footnote 42 In this context, it is unsurprising that the laws and practices of Indigenous and Afrodescendent communities are directed to protecting and maintaining their autonomy over land and resources.Footnote 43
It is also widely documented that, since the Spanish colonization of Latin America, local Indigenous and Afrodescendent communities have been largely dispossessed of their traditional territories. The Spanish initially justified the violence of dispossession through colonial laws such as the Papal Bulls, which sanctioned the doctrine of discovery.Footnote 44 This doctrine was relied upon by the Spanish Imperial Crown in Ecuador and Colombia to variously justify the colonization of Indigenous territories, the extraction of natural resources, slavery, and indoctrination to Catholicism – resulting in widespread human suffering.Footnote 45 Even after independence, the legal frameworks of Latin American nation-states have continued to dispossess Indigenous and ethnic communities of their lands and resources, often in the name of national unity, economic development or social progress.Footnote 46
In contemporary Latin American states like Colombia and Ecuador, governments influenced by neoliberal economic agendas encourage foreign investment in natural resource development, frequently within territories inhabited by Indigenous peoples.Footnote 47 Acosta refers to this as the maldición de la abundancia (the resource curse), which reflects the paradox of living in resource-rich territories but experiencing ongoing poverty and hardship as a result of resource extraction that benefits foreign actors.Footnote 48 The upward trajectory of economic growth and extraction in community territories in Latin America appears to be enduring and little constrained.Footnote 49 However, Indigenous and ethnic communities have had some success with resisting external encroachment into their territories.Footnote 50
Both Ecuador and Colombia have a long history of local community activism in resistance to state and private-sector encroachment into their lands, resources, and political life.Footnote 51 The purpose of this community activism is typically to oppose, overcome or abolish oppressive conditions within their territories, including challenging state-based agendas and practices that deny the laws, practices, and perspectives of community authorities.Footnote 52 However, as mentioned above, and depending on the circumstances, community activists may use a range, and combination, of available tools and strategies to protect their territories and related autonomy.Footnote 53 The strategies used in both countries include education, the promotion of social cohesion, legal action before courts and tribunals, and protests or blockades.Footnote 54
The purpose of this activism is not just to protest against or prevent development projects by external actors, but to encourage broader societal change by advocating for the inclusion of the diverse knowledge, concerns, and perspectives of local communities in decision-making about matters that affect them.Footnote 55 Activists may even align with state laws, policies, and institutions where strategically necessary to oppose private actions that undermine their autonomy, or to advance territorial autonomy in cooperation with government institutions.Footnote 56 Activism and resistance to outside influence may also be performed on a daily basis through communities continuing their way of life in the face of centuries of attempted assimilation by the state or settler population.Footnote 57
Pursuing activism against external developers may come at a significant cost to communities. Human rights and environmental defenders and activists in Latin America who use legal and extralegal activism to resist extractive development encroachment into their territories face significant and growing security risks.Footnote 58 In recent decades, states have increasingly resorted to criminalization of activism, as a strategy to suppress opposition to economic development projects.Footnote 59 In order to suppress opposition, private actors may make exaggerated or fabricated charges against community leaders and their advisers and advocates.Footnote 60 This continues despite being characterized by scholars and commentators as a misuse of legal and public institutions.Footnote 61 The criminalization of human rights and environmental defenders damages social cohesion by undermining societal relationships and values – such as the rule of law, administration of justice, equality, and human rightsFootnote 62 – and may incite public indifference or even hatred towards Indigenous and ethnic community struggles.Footnote 63
The rights of rivers are increasingly sought, and in many cases recognized, in a wide range of jurisdictions, through legislation, administrative decree, public policy, and judicial decision.Footnote 64 Both Ecuador and Colombia have been jurisprudential hotspotsFootnote 65 for river rights, although the legal source of and grounds for such rights are different in each country.
In Ecuador, courts have developed river rights, relying on a series of collective and individual human rights and key constitutional principles set out in the 2008 Constitution.Footnote 66 These include the rights of nature and a number of buen vivir rights informed by the Quechua concept of sumak kawsay, which is typically translated as ‘living well’.Footnote 67 The inclusion of buen vivir in the 2008 Constitution reflects the significant influence of Indigenous peoples in its drafting.Footnote 68 Article 71 of the Ecuadorian Constitution recognizes the ‘right of nature to have its existence respected holistically, and to the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes’. The rights of nature also include the right to restoration,Footnote 69 and the government is required to apply precautionary and restrictive measures to activities that may lead to the destruction of ecosystems or the permanent alteration of natural cycles.Footnote 70 The Constitution enables ‘all individuals, communities, peoples, and nations’ to call upon public authorities to enforce the rights of nature, amounting to a broad legal standing that allows any natural person to lodge a judicial claim to enforce nature’s rights.Footnote 71 This can be done through an acción de protección (a constitutional writ for the protection of rights) under Article 88 of the Constitution.Footnote 72
In Colombia, dozens of rivers have been recognized as living beings and subjects of rights, sometimes under the care or guardianship of Indigenous or Afrodescendent communities.Footnote 73 The cases have relied on Colombia’s ‘Green Constitution’,Footnote 74 which does not include an express recognition of the rights of nature, but does include more than 30 articles directed at environmental rights and obligations, and protects Indigenous and Afrodescendent rights, acknowledging their special relationships with territory based on their ethnic identity, difference, and culture.Footnote 75 The conceptual basis for Colombia’s 1991 Constitution is the Estado Social de Derecho, meaning a social welfare state based on the rule law, and accompanying guarantees of human dignity (vida digna) and common welfare (bienestar general).Footnote 76 Articles 79 and 80 recognize the collective right of all people to a healthy environment, and the state’s responsibility to protect the diversity and integrity of the environment; conserve areas of special ecological importance; plan the management and use of natural resources to guarantee their sustainable development, conservation, restoration or substitution; and prevent and control environmental deterioration.Footnote 77 Indigenous territories (resguardos) are protected under Article 329 of the Constitution, and Indigenous consejos (boards) have municipal-level management and decision-making powers over natural resources within their territories.Footnote 78 The Constitution requires that any exploitation of natural resources in Indigenous territories is ‘without prejudice to the cultural, social and economic development of [I]ndigenous communities’ and ‘in decisions that are adopted with respect to said exploitation, the Government will promote the participation of the representatives of the respective communities’. Where river rights have been recognized in Colombia, this is generally achieved by applying to the Court for a constitutional writ of tutela, to protect the rights of rivers and river communities.Footnote 79 Article 86 of the Constitution allows all Colombians to apply to any judge or the Constitutional Court for an order for protection of their fundamental rights when they are threatened by an act or omission of a public or private authority.Footnote 80
The diverse legal instruments that recognize river rights around the world sometimes acknowledge genealogical or spiritual relationships between Indigenous and ethnic communities and their territories.Footnote 81 As an example, in Aotearoa New Zealand, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 recognizes that the river is a living, related ancestor and legal person based on the relationship of the Whanganui Iwi (Tribe or First Nation) with the river.Footnote 82 Some argue that the legal recognition of these relationships can enhance the ‘autonomy’ of Indigenous communities, which we use to refer to the communities’ freedom to decide what to do with their lives, relationships, and territories.Footnote 83 This is because where this recognition occurs in alignment with the political, legal, and activist agendas of the communities, it may strengthen community authorities and their power to make or influence decisions about matters that affect them.Footnote 84 Others argue that by reflecting Indigenous laws, practices, and relationships in the governance arrangements associated with river rights, new forms of pluralistFootnote 85 territorial governance may emerge in which Indigenous knowledge, law, and authority are accorded power and authority alongside Western legal frameworks.Footnote 86 These new forms of governance, which recognize and accommodate the communities’ worldview, law, and associated authority to varying extents, may enable a range of consequential social, economic, and environmental benefits to emerge over time.
Despite their promise, river rights have increasingly been criticized in diverse cultural contexts around the world, including in Ecuador and Colombia.Footnote 87 The criticisms include that states may use river rights frameworks to subsume and subordinate the Indigenous or customary law of communities within formal legal hierarchies, allowing state institutions (courts, tribunals and administrative entities) to determine the conditions under and extent to which community laws, worldviews, perspectives, and aspirations will be accommodated, meanwhile reinforcing the legitimacy of the state as the source of legal and political power.Footnote 88 State law and institutions may recognize certain, limited or partial river rights where there is no inconsistency with the interest of state or private actors, while at the same time disregarding broader or more radical community interests or objectives.Footnote 89 As an example in the Colombian context, González-Serrano argues that the state is using river rights frameworks to prioritize the interests of private and external development actors, in ways that undermine the community’s autonomy,Footnote 90 while compromising radical community agendas for the recovery, protection, and control of their territories.Footnote 91 These criticisms highlight the fact that river rights may not necessarily be aligned with, or may even compete or conflict with, the interests of communities.Footnote 92
In the following section, we introduce our river rights cases from Colombia and Ecuador, showing how the communities strategically leveraged (and the courts recognized) river rights in conjunction with other forms of human rights protection and constitutional principles.
3. Exploring River Rights Cases in Ecuador and Colombia
3.1. Ecuador: The Piatúa River Case
The Piatúa River runs for 41.5 kilometres (km) through the Ecuadorian provinces of Napo and Pastaza.Footnote 93 The river is of significant spiritual value to local Indigenous communities, including the Kichwa peoples of the Ecuadorian Amazon, with 22 Kichwa communities living in close connection to the Piatúa River in the Pastaza Province.Footnote 94 Houart and co-authors draw on their ethnographic fieldwork with the Kichwa communities of Santa Clara to explain that the Piatúa is, to them, a living, conscious, sacred being.Footnote 95
Kichwa communities have experienced widespread dispossession of their traditional territories and continue to struggle with encroachment into their remaining landholdings, including by government-sanctioned, private projects involving resource-extraction.Footnote 96 As an example, the Kichwa people of Sarayaku initiated proceedings in the Inter-American Court of Human Rights (IACtHR) in opposition to the government’s authorization of oil exploration and exploitation activities in their territories. In the landmark case Kichwa People of Sarayaku (Tayjasaruta) v. Ecuador, in 2012, the IACtHR upheld the communities’ application and found the Ecuadorian state responsible for violating the Kichwa communities’ rights to consultation, to Indigenous communal property, and to cultural identity.Footnote 97
The Piatúa River case of 2019, which we analyze in greater depth, is emblematic of the challenges faced by local communities as a result of resource extraction, as well as the ways in which they are leveraging river rights as an act of resistance.Footnote 98 In these proceedings, the Kichwa Indigenous communities of Santa Clara, together with the Defensoria del Pueblo (Public Defender’s Office) and multiple environmental and Indigenous NGOs, brought an acción de protección Footnote 99 to challenge a 40-year resource concession granted by the Ministry for Energy to the electricity company GENEFRANFootnote 100 for the ‘design, funding, construction, installation, operation, maintenance and administration’ of the Piatúa hydroelectric dam.Footnote 101 The Kichwa communities objected to the dam concession on the basis that it violated their constitutional rights to a healthy environment,Footnote 102 water, health, food sovereignty,Footnote 103 communal territory,Footnote 104 cultural identity,Footnote 105 employment,Footnote 106 and free, prior and informed environmental consultation.Footnote 107 The communities also strategically invoked the rights of nature in their claims, arguing that the concession would infringe transversal protections of the rights of nature, Indigenous collective rights, and human dignity in the Ecuadorian Constitution.Footnote 108 The court of first instance failed to uphold the community’s rightsFootnote 109 and declined to grant the constitutional writs sought.Footnote 110 The claimants appealed to the Provincial Court of Pastaza.
The evidence and legal submissions provided by the Kichwa communities to the Provincial Court emphasized that the Piatúa River is sacred to them, describing how the river’s stones have medicinal properties, that there are sacred places along the river, and there is a strong connection between their cultural identity and the river, which is essential for their livelihoods.Footnote 111 The Kichwa communities made a number of specific claims about the authorization of the dam against the defendants, who included GENEFRAN, the Ministerio de Ambiente (Ministry for the Environment); the Secretaría del Agua (Water Secretariat); the Ministerio de Energía y Recursos Naturales No Renovables (Ministry of Energy and Non-renewable Resources); the Agencia de Regulación y Control de Electricidad (Electricity Regulation and Control Agency), and the Subsecretaría de la Demarcación Hidrográfica Napo (Napo Hydrographic Basin Subsecretariat).
The first series of claims concerned the amount of water authorized to be taken for the dam. The Kichwa communities claimed that the Water Secretariat had inappropriately authorized the taking of 12.6 cubic meters (m3) per second (later reduced to 10.5 m3 per second)Footnote 112 of water from the river, based on hydrological flow data for rainy season flows, and without taking into account cumulative impacts from other river users.Footnote 113 In reality, the communities’ argued, the dam would significantly reduce (and effectively obstruct) the flow of water along 6 km of the Piatúa River, having a negative impact on community livelihoods, flora and fauna, and sacred places.Footnote 114 They argued that altering the river’s vital cycles, structure, function, and evolutionary processes in this way would violate a combination of individual and collective constitutional rights, including the rights of nature pertaining to the river. They further argued that this amounted to a contravention of the Ley Orgánica de Recursos Hídricos Usos y Aprovecimento del Agua (Water Resource Use Law), which prioritizes the use of water for human consumption and livelihoods.Footnote 115
The Kichwa communities also took issue with the Ministry for the Environment’s approval of the environmental impact assessment (EIA) and management plan for the dam project prepared by GENEFRAN.Footnote 116 They argued that the information supporting the Ministry’s environmental approval (and the authorization granted by the Water Secretariat) was more than ten years old and relied on data from a different river system.Footnote 117 The communities also noted that GENEFRAN’s plan to divert water from the Piatúa River and return it to a different hydrological system contradicted their stated intention to restore any water taken for the dam to its natural flow.Footnote 118 Further, the Kichwa communities claimed that the dam project would pose a risk to protected threatened species living in the 6 km stretch of river affected by the water take,Footnote 119 some of which were listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),Footnote 120 and yet there were no measures in the management plan to address impacts on such species.
In terms of the consultation process,Footnote 121 the Kichwa communities argued that they had not been properly consulted,Footnote 122 despite the dam affecting downstream tourism employment opportunities for the communities, violating their right to employment.Footnote 123 They claimed that community consultation meetings convened by GENEFRAN excluded the communities who would be most severely affected by the dam’s construction, and that those members of the Kichwa community of Santa Clara who managed to attend had expressed their strong opposition.Footnote 124 However, the Ministry for the Environment, the Water Secretariat and GENEFRAN had effectively ignored the communities’ concerns, including their requested input to the management plan, ultimately granting authorization for construction works in the communities’ territories without proper consultation.Footnote 125
The Provincial Court handed down its decision in the Piatúa River case in 2019,Footnote 126 overturning the first instance judgment and granting a range of remedies to the Kichwa communities. The Court found that both the Water Secretariat and the Ministry for the Environment had violated a series of rights held by the Kichwa peoples and, by extension of the constitutional protection of the rights of nature, had contravened the rights of the river as a ‘legal interest in and of itself’.Footnote 127 The judgment began with an analysis of the rights of nature in Article 71 of the Constitution of Ecuador.Footnote 128 The Court discussed the connection of the rights of nature with other collective and individual human rights (including the right to a healthy and ecologically balanced environment),Footnote 129 which place a range of environmental obligations on the state. The Court emphasized the value of nature in and of itself, and that natural resources can be used for the benefit of society, subject always to a need to respect nature’s vital cycles and not act in ways that undermine nature’s existence.Footnote 130
The Court held that the Ministry for the Environment and the Water Secretariat had infringed the rights of nature by not ‘respecting the integral existence, maintenance and regeneration’ of the river, and the listed endangered species dependent on it.Footnote 131 It found that both government authorities had extended permissions to GENEFRAN without taking precautionary and urgent measures to restore the affected ecosystems and prevent future impacts.Footnote 132 In this respect it found that the management plan prepared by GENEFRAN was defective. Noting that some initial site preparation works like blasting, road clearance, and the transportation of machinery had started before the Kichwa initiated court proceedings, the Court held that both the Ministry and the Secretariat had failed to act appropriately when they became aware of the destruction of natural habitat caused by those works after technical site inspections.Footnote 133 The Court also found that the Water Secretariat had relied on inaccurate information and provided insufficient justification in granting the authorization, and that the obstruction of 6 km of the river’s flow would violate the transversal constitutional principle of buen vivir (living well) in conjunction with the human right to water under the Constitution.Footnote 134 According to the Provincial Court, the Water Secretariat was under an obligation to maintain the river’s flow and the natural dynamics of the hydrological system.Footnote 135
Together with, and reinforced by, its recognition of the rights of nature, the Provincial Court held that the Water Secretariat had breached a range of constitutional rights held by the Kichwa communities. The Secretariat had violated the Kichwa peoples’ constitutional right to cultural identity,Footnote 136 and failed to comply with consultation mandates under the Water Resource Use Law,Footnote 137 when it ignored their concerns and perspectives.Footnote 138 The Court observed that by authorizing the water take, the amount of water left for human consumption would be less than the 7.5 litres per person per day mandated by international law,Footnote 139 yet the management plan and EIA process did not address impacts on downstream communities.Footnote 140 The Court upheld the Kichwa communities’ claims relating to rights to water and food sovereignty,Footnote 141 noting that the Secretariat had prioritized energy production over the constitutionally protected rights of the communities dependent on the river to use water for consumption, food sovereignty, and irrigation.Footnote 142 This was despite the priority accorded to human consumption, followed by food sovereignty and ecological flow, before productive uses, under the Water Resource Use Law.Footnote 143 Even when looking at productive use, the Court confirmed that the hierarchy of uses should prioritize irrigation, followed by tourism, energy generation, and other uses.Footnote 144 The Court similarly upheld the Kichwa claimants’ right to health, and ordered the Secretariat to act immediately to mitigate any health impacts caused by pollution of the river.Footnote 145
The Court found that the Ministry and the Secretariat had violated the Kichwa communities’ collective territorial rights which are protected by the Constitution.Footnote 146 GENEFRAN had argued before the Court that the dam project would not have an impact on Kichwa property rights because the construction was taking place on private property owned by GENEFRAN.Footnote 147 However, the Provincial Court confirmed that collective territorial rights could be maintained through possession of the land, without any need for a formal title.Footnote 148 Further, the Court observed, as noted in the EIA,Footnote 149 that the modification of the river’s flow would negatively affect those collective lands, even if there was no infrastructure located there.Footnote 150 However, the Court declined to recognize a violation of the right to employment, on the basis that the dam itself would provide new employment opportunities for the communities.Footnote 151
The Court concluded that the ‘state must have an active role’ in providing for, respecting, and implementing the cultural and spiritual relationships of the communities with the river.Footnote 152 It emphasized that consultation required taking into consideration the communities’ opposition to the project,Footnote 153 but that GENEFRAN’s management plan had ignored the communities’ views,Footnote 154 violating their rights to free, prior and informed environmental consultation.Footnote 155 Consequently, the plan was unable to effectively manage the social and environmental impacts of the project, as required by law.Footnote 156 Accepting the acción de protección brought by the Kichwa communities, the Court ordered a range of relief, including compensation for the infringement of rights, suspension of the water and environmental authorizations, and all construction works to cease until a number of more detailed orders were complied with.Footnote 157 Those orders include steps related to consultation, technical studies, developing an effective management plan and EIA, an environmental audit applying the precautionary principle, training for Water Secretariat and Environment Ministry officials, and that GENEFRAN issue a public apology to the Kichwa community of Santa Clara.
3.2. Colombia: The Atrato River Case
The Atrato River runs through the Chocó region of Pacific Colombia, one of the most biodiverse regions in the world, characterized by high rainfall and a wide variety of plant and animal species.Footnote 158 Chocó is home to the largest population of African descendants in Colombia, along with Indigenous Emberá Katio communities.Footnote 159 Emberá Katio were living in the Chocó when the Spanish colonized the areas known today as Panama and Colombia, dispossessing them of the bulk of their lands and reducing their territories to reservations where they have continued their ways of living.Footnote 160 Africans were brought forcibly to Colombia during the slave trade in the 17th century to work in the mines and plantations, and in servitude to wealthy colonial families. Since their emancipation in 1865, Afrodescendent peoples have remained living alongside Indigenous peoples in Chocó.Footnote 161
In 2014, the Defensoria del Pueblo de Colombia (Colombian Public Defender’s Office, similar to the Ombudsman in comparative experience) published a report on the humanitarian crisis facing the people living in the Chocó.Footnote 162 According to the Office, the key cause of the crisis was high levels of violence in Chocó because of the presence of armed groups and criminal gangs seeking to control the territory for illegal activities, such as land clearance and gold mining.Footnote 163 The Office also highlighted poverty and lack of employment opportunities, access to education, sanitation services, and adequate health services as key challenges in the region.Footnote 164 It concluded that this crisis was exacerbated by the government’s failure to protect local rights to territorial autonomy.Footnote 165
Emboldened by the recognition of their concerns in an official government report, the ethnic communities of Chocó (both Indigenous and Afrodescendent) aligned with Indigenous rights NGO Tierra Digna to take their concerns to the Constitutional Court of Colombia in the landmark case of Centro de Estudios para la Justicia Social ‘Tierra Digna’ and Others v. Presidente de la Republica and Others as an acción de tutela (constitutional writ for the protection of rights).Footnote 166 They argued that illegal mining practices, including the use of toxic chemicals (cyanide and mercury) and deforestation, had polluted and degraded the Atrato River.Footnote 167 The communities also claimed that the extraction and transportation of gold had reduced the flow of certain river tributaries, making them no longer navigable.Footnote 168 These impacts, they alleged, had undermined their livelihoods and harmed their cultural and spiritual relationships with the Atrato River and its territories.Footnote 169 The communities gave significant evidence about their connection to the Atrato, which they see as a living and life-giving entity.Footnote 170 The ethnic communities sought protection of their constitutional rights to life, health, water, food security, a healthy environment, culture, and territory, and sought to force the Colombian government to address the humanitarian and environmental crisis.Footnote 171
In its 2016 decision, the Constitutional Court held that a range of Colombian government entitiesFootnote 172 – across national, regional, and municipal levels – had violated the communities’ fundamental rights, through failing to effectively control illegal mining and safeguard the communities.Footnote 173 It found that the government had not provided a coordinated and effective response to the numerous historical, socio-cultural, environmental, and humanitarian challenges in the Chocó.Footnote 174
The Constitutional Court concluded that illegal, large-scale mining and deforestation had harmed ethnic communities and damaged their territories, and that in failing to control these activities the government had violated the communities’ fundamental human rights to life, health, water, food security, healthy environment, culture, and territory under the Constitution. The Court relied on the concept of ‘biocultural rights’ as a transversal concept tying together the human rights of the communities and the rights of the river, the basis of which is the ‘profound unity between nature and the human species’.Footnote 175 The Constitutional Court’s discussion of biocultural rights is extensive,Footnote 176 extending to ‘the ethnic communities’ rights to administer and exercise autonomía (autonomy) over their territories, following their laws and customs’.Footnote 177 It declared that the Atrato River is a legal entity (entidad sujeto de derechos) and the subject of rights to ‘protection, conservation, maintenance and restoration’.Footnote 178 The Constitutional Court made this declaration of its own accord, without being asked by the communities or their advocates to grant rights to the river or for the declaration that it is a legal subject.Footnote 179 Although the communities did not expect the declaration of river rights, they saw it as a strategic opportunity to influence the governance arrangements arising out of the Court’s judgment, especially through the recognition of specific governance roles for river guardians (discussed below).Footnote 180
The Constitutional Court in the Atrato decision ordered the establishment of governance arrangements comprising representatives of the claimant communities, on the basis that they have the right to decide on issues that affect them.Footnote 181 These arrangements included collaborative preparation of three plans involving the communities, government departments and entities (including the police and military), NGOs, and universities: one to eradicate illegal mining; another to decontaminate the river; and the third to recover traditional livelihoods.Footnote 182 The Constitutional Court ordered the establishment of a legal entity, the Comisión de Guardianes (Commission of Guardians) to represent the rights of the Atrato River, consisting of 14 community representatives and the Minister for the Environment (as the President’s representative).Footnote 183 The Constitutional Court also ordered the government to establish, within three months of the judgment, a Follow-Up Committee of experts, to include representatives from the Atrato communities, NGOs, and scientists.Footnote 184 The Follow-up Committee would be required to report back to the Court semi-annually on the progress of implementing the Court’s orders.Footnote 185 This can be seen as recognition by the Court of the ongoing and systemic ineffective communication and coordination of public entities, across multiple levels of government, in response to the humanitarian crisis.
In the following section we extend our river rights analysis beyond the courtroom, where the Indigenous and ethnic communities continue to mobilize for recognition of their territorial autonomy in conjunction with river rights.
4. Leveraging River Rights Through Community Activism Inside and Outside the Courtroom
4.1. Ecuador: Kichwa Activism and River Rights
Indigenous peoples in Ecuador have regularly used activist strategies to protect their communities from the ongoing dispossession of their territories and resist externally imposed restrictions on the exercise of their territorial autonomy.Footnote 186 From the moment that GENEFRAN began construction works for the dam in 2018, the Kichwa communities began activism to stop the works, including marching on the construction site and setting up road blocks.Footnote 187 When the authorities ignored their opposition to the construction of the Piatúa dam, the Kichwa communities of Santa Clara forged new alliances to defend the Piatúa River directly.Footnote 188
These new alliances included the movement Piatúa Resiste (Resist Piatúa), established by the Kichwa communities in 2018 to oppose the dam in parallel with taking action in the courts.Footnote 189 Other activist groups joined the Piatúa Resiste movement to protect the river and its surrounding territories from the proposed dam construction, including the Confederación de Nacionalidades Indígenas del Ecuador (CONAIE) (Confederation of Indigenous Nationalities of Ecuador), Aguanta Pastaza, Sinchi Warmi, Fundación Rio Napo, and Fundación Pachamama.Footnote 190 The Kichwa communities also set up the Campamento Juvenil por la Vida y la Resistencia (Youth Camp for Life and Resistance), a youth education programme intended to bring young people together to promote resistance, social action, and solidarity on human rights issues, through recreational and personal development activities.Footnote 191 Environmental not-for-profit organizations such as Earth Advocacy, Youth for Our Planet, and Coalition Wild also supported the movement.Footnote 192 Through Piatúa Resiste, the communities continue to engage allies, educate youth, and organize and expand the movement.Footnote 193
The activism of the Kichwa communities, within and beyond the courts, also entailed significant personal risks to community members. For example, GENEFRAN representatives made allegations against community representative, Christian Aguinda, based on which the Fiscalía de Pastaza (Prosecutor’s Office of the Pastaza Province) found Aguinda guilty of intimidation. The Kichwa communities asked the Provincial Court to investigate the process by which Aguinda had been convicted,Footnote 194 claiming that the information on which the conviction was based was not made available to the public.Footnote 195 A press release by CONAIE alleges that Aguinda was wrongly criminalized in ‘a clear act of political persecution, intimidation, and scare tactics against social activists and nature defenders, promoted by the private interests of Genefran SA, to prevent the implementation of the rights of communities and of nature’, in a process implicating a network of judges, prosecutors, and the police.Footnote 196 Houart and co-authors explain that the judge of the first instance decision was arrested for attempted bribery of another judge in 2019.Footnote 197 The Provincial Court referred the criminal matter to the criminal courts as it lacked the appropriate jurisdiction. However, in doing so the Provincial Court recommended that the criminal courts apply the Normas para la Promoción y Protección de Defensoras y Defensores de Derechos Humanos y de la NaturalezaFootnote 198 (Standards for the Promotion and Protection of Human Rights and Nature Defenders).Footnote 199 These standards establish a range of principles and measures that seek to protect the human rights of environmental defenders, including to prevent the ‘use of criminal law to obstruct community dissent and defenders’ aims’ and promote guarantees of fair trials.Footnote 200 The Provincial Court noted that human rights and nature defenders are ‘agents of change’ and play an important role in seeking ‘a democratic transformation that incorporates the opinion of the population in the construction of their own life’.Footnote 201
The activist networks developed by the Indigenous Kichwa communities and environmental NGOs ended up being instrumental for their legal strategy. The NGOs supported the Kichwa to leverage the constitutional recognition of the rights of nature, and constitutional mechanisms for their enforcement, which reinforced that their human rights had been breached and ultimately strengthened their case against the dam. Houart and co-authors explain how, through contact with an environmental NGO, the president of Piatúa Resiste heard about the rights of nature, and the concept was communicated to those concerned about the dam and eventually embraced as part of the Kichwa community’s struggle to defend the Piatúa.Footnote 202 The combination of legal strategies and activist alliances also had the effect, according to Houart and co-authors, of reinforcing the cultural identity of the Kichwa communities, including knowledge and practice related to their system of law.Footnote 203 As at October 2025, the case is being appealed to the Constitutional Court of Ecuador, and the communities continue to prepare for their next hearing, while the hydroelectric dam construction works remain suspended.Footnote 204 The connections between river rights and Indigenous rights in the Piatúa River case are reflected in the Constitutional Court of Ecuador’s selection of the case for appeal, which it considered to be ‘novel’:
The case subject to this selection order is novel in that the Constitutional Court, while it has selected cases on prior consultation for the development of jurisprudence, has not chosen a topic in the context of Case No. 1754-19-JP, in which, at first glance, it would appear that a public works project threatens to cause the extinction of a river with economic, cultural, and symbolic value for an indigenous community. In this regard, the Court could analyze the interaction and interdependence between the rights of nature and the rights of indigenous communities, whose relationship with the territory and the ecosystem is organic. Moreover, the case has national relevance or significance because this Court could rule on the possibility of certain ecosystems or territories being subject to special protection due to the cultural and symbolic value that indigenous communities accord them.Footnote 205
The Kichwa communities continue with their activism, including producing an independent documentary, Piatúa Resists, in 2019.Footnote 206 The communities convened a series of river festivals in 2024 and, in 2023, declared the Piatúa River and its territories to be patrimonio cultural e inmaterial (intangible cultural heritage), strategically alluding to the protection of intangible cultural heritage by the United Nations Educational, Scientific and Cultural Organization (UNESCO).Footnote 207 These activities emphasize the communities’ commitment to keep the Piatúa River dam-free and their willingness to employ a range of legal and extralegal arguments and strategies within and beyond the courts to achieve their goal.Footnote 208
4.2. Colombia: Atrato Activism and River Rights
Afrodescendent and Indigenous peoples in the Chocó have been organizing themselves into networks of communities since the 1980s,Footnote 209 and their collective activism was key to the recognition of their territorial and collective rights in the Colombian Constitution.Footnote 210 Activists in Chocó have deployed wide-ranging strategies, from sending telegrams to institutions with messages like ‘los negros existimos’ (black people exist) to protests, road blockades, and social mobilizations intended to draw public attention to the needs and concerns of Afrodescendent communities.Footnote 211 Afrodescendent activism was the catalyst for Ley 70 de 1993 (Law 70 of 1993), which regulates the collective territories of Afrodescendent communities and establishes requirements to consult the communities about matters that affect them.Footnote 212 At times the communities have collaborated with the Colombian government, including implementing judicial decisions, cooperating in the peace process, and creating their Plan de Vida (Life Plan) or Plan de Etnodesarrollo (Ethno-development Plan).Footnote 213 These plans are policy instruments that emerge from the social consensus of the communities, and inform governments about their needs and aspirations.Footnote 214
The ethnic communities involved in the Atrato River case have used activism to push for greater autonomy both within and in parallel with the implementation of the Constitutional Court’s orders in the case.Footnote 215 Outside the governance arrangements established by the Court, the Atrato communities established the Cuerpo Colegiado de Guardianes (Community Collegiate Body) made up of various community organizations, including those involved with the court proceedings.Footnote 216 The Collegiate works in parallel with the Comisión de Guardianes (Commission of Guardians), the governance body mandated by the Constitutional Court to represent the rights of the river (discussed above).Footnote 217 As part of the Collegiate, the communities build relationships with government institutions and reach internal consensus on collective decisions for the 14 community representatives to advance in the Commission of Guardians.Footnote 218 The Collegiate also provides ongoing community education around the importance of protecting the river’s rights and safeguarding the communities’ territorial autonomy.Footnote 219 It organizes festivals, promotes unity among community organizations, and pushes for their specific needs and aspirations to be reflected in the implementation of the Constitutional Court’s orders.Footnote 220
The Atrato Indigenous and ethnic communities have embraced the concept of ‘biocultural rights’ adopted in the Atrato River caseFootnote 221 as a cross-cutting theme, to advance their aspirations for territorial autonomy as part of relationship-building with government institutions and other entities implementing the Court’s orders.Footnote 222 During the design of the three implementation plans ordered by the Constitutional Court (discussed above), the communities leveraged the biocultural rights concept to emphasize their aspirations for development in accordance with their traditional knowledge.Footnote 223 In the Plan to Recover Traditional Livelihoods, the ethnic communities gave their own definition of biocultural rights as:
Long-established rights for a community, in accordance with its customary laws, including the right of the community to administer those collective rights in accordance with its customary law and perform traditional roles following Indigenous worldview.Footnote 224
The recognition of biocultural rights, as defined by the communities, has wide-ranging implications. The communities conceive of biocultural rights broadly, to safeguard cultural practices and places, and enable customary conflict resolution procedures. Ceremonies, traditional medicine and plants, and significant sites and geographic areas are all accorded ‘biocultural’ importance in the communities’ definition.Footnote 225 The communities have proposed the establishment of Comisiones de Solución de Conflictos Intra e Interétnicos (Committees for Inter and Intra Ethnic Conflict Resolution) to manage territorial and social conflicts between and among Afrodescendants, Indigenous peoples, and outsiders (non-members of the communities), which would be governed by Indigenous and customary law.Footnote 226 Although these committees have not yet been formally established, community organizations have prepared and engaged on a ‘guideline for education, conflict prevention, and resolution processes’ as a first step.Footnote 227
The communities have also continued to exercise their activism through the Follow-Up Committee, the body tasked with overseeing the implementation of the Constitutional Court’s orders.Footnote 228 The Follow-Up Committee includes representatives from the communities, not-for profit organizations, universities, and government entities,Footnote 229 working together to coordinate and monitor the implementation of the orders.Footnote 230 Through this Committee, the communities have underscored the root causes of the government’s historical inaction and poor coordination in safeguarding Indigenous and ethic community rights and attending to environmental and societal threats, including bureaucratic obstacles and a lack of political will.Footnote 231 The Follow-Up Committee has even initiated contempt proceedings against government officials, which has accelerated the design and implementation of plans and the designation of critical public funding.Footnote 232 More generally, the Follow-Up Committee facilitates dialogue, negotiation, and action directed to advancing the rights of the Atrato River and protecting the ethnic communities’ autonomy.Footnote 233 Its terms of reference require diverse participation, and that community voices, perspectives, worldviews, concerns, and aspirations are ‘meaningfully considered’ in the implementation of the orders to protect and uphold the river’s rights.Footnote 234
Although the practical impact of the Atrato River case is often questioned by researchers and commentators on the basis that the problems of illegal mining and social and economic deprivation have not been resolved,Footnote 235 the activism accompanying the case and its implementation has had ripple effects throughout the Colombian legal system, which will take many decades to realize.Footnote 236 From 2023, in parallel with the implementation of the Atrato orders, Indigenous and Afrodescendent communities secured the legal recognition of their right to autonomy on matters related to mining activities and environmental management more broadly, given effect to in the enactment of Decrees 1396 of 2023, 1384 of 2023, and 1275 of 2024.Footnote 237 Decrees 1396 and 1384 recognize community authorities as the highest authority with powers to decide on mining activities in collective Afrodescendent territories.Footnote 238 Decree 1396 also recognizes the communities’ right to prioritize their own development interests over those of external actors.Footnote 239 Decree 1275 empowers Indigenous authorities to participate in matters concerning environmental management within their territories in coordination and communication with government institutions, applying the principle of legal pluralism, defined in the decree as:
the dialogue between environmental authorities … giving preference to community normative systems, constitutional principles, and jurisprudential rules arising from national and international jurisprudence related to Indigenous peoples’ rights and their roles as political, administrative, environmental and jurisdictional authorities.Footnote 240
These legal developments, emerging alongside the recognition of river rights in Colombia, suggest future strategic opportunities for Indigenous and Afrodescendent peoples to leverage river rights in order to consolidate and enhance their autonomy over the lands and resources in their territories in accordance with their laws, knowledge, and worldview.
5. Conclusion: River Rights and Pluralist Territorial Governance
As discussed at the beginning of this article, the growing body of interdisciplinary scholarship on judicial cases recognizing the legal rights of rivers in Ecuador and Colombia increasingly observes that these cases have failed to ‘solve’ the social and ecological problems surrounding the rivers. However, evaluating the success or otherwise of these cases is inherently subjective and empirically complicated. Those evaluating river rights cases may apply different criteria of success: from ecological outcomes to political or legal efficacy. Moreover, it is difficult to measure biophysical or social outcomes, and to attribute them to judicial decisions recognizing river rights or the governance arrangements that flow from them – a task that is further complicated by the short timescales since river rights governance frameworks have been established.
In this article, we have considered whether river rights cases brought by Indigenous and ethnic communities in Ecuador and Colombia might offer new legal avenues for protecting and enhancing the communities’ territorial autonomy. We found, in both cases, that communities are strategically leveraging river rights frameworks, alongside constitutional and human rights protections, to assert and enhance their territorial autonomy, and these cases are enabling more pluralist territorial governance to emerge over time.
The Piatúa and Atrato River cases were argued and adjudicated in different cultural and constitutional contexts and were framed on distinct legal grounds. In both cases, the autonomy of Indigenous and ethnic communities over their territories has not been fully realized even after the court decisions.Footnote 241 However, in both cases, the constitutional value accorded to the river as a rights-bearer added strategic weight and momentum to the communities’ constitutional human rights advocacy. In the Piatúa River case, by leveraging the rights of nature in conjunction with human rights protection and transversal constitutional principles, the communities obtained judicial orders requiring the government to engage meaningfully with Kichwa community knowledge and perspectives in processes to manage social and environmental impacts on the river – something that otherwise would not have not occurred. In the Atrato River case, the Court used the concept of biocultural rights to conceptually align the river’s rights as a legal subject with those of the Atrato communities and, on that basis, ordered the Colombian government to finally take action in response to the humanitarian and environmental crisis in the Chocó.
The strategic weight and momentum of river rights in both cases extend beyond the judgments, through the implementation of governance arrangements, consequential law reform, other related legal proceedings, and broader social, cultural, and educational movements. The Atrato communities continue to leverage the concept of biocultural rights as a cross-cutting theme in their engagement with central government institutions and local authorities in implementing the Constitutional Court’s orders. The Piatúa Resiste movement (Ecuador) and the Collegiate (Colombia) work in parallel with formal legal and governance processes to reinforce territorial autonomy in resistance to external encroachment. They do so through education, community consolidation, and consensus-building, advancing community agendas outside the courtroom in line with place-based worldviews and aspirations.
Our analysis of the cases also confirms that the rights of rivers need neither compete nor conflict with the rights of the human communities connected to the rivers. In these cases, the rights of the communities and the river were mutually reinforcing. Houart and co-authors refer to the alliance of interests in the Piatúa River case as a ‘multispecies imaginary’, in which local Kichwa River defenders converged around the river, acting in representation not only of their own human interests but also of the interests of the non-human co-inhabitants of the Piatúa river territory.Footnote 242
Our analysis of the Piatúa and Atrato River cases also highlights opportunities for river rights frameworks to support legal processes and pluralist governance arrangements that engage Indigenous and ethnic communities’ knowledge and law. In Ecuador and Colombia, state law has routinely subsumed, disciplined, and limited the potential for communities to exercise their autonomy pursuant to their own knowledge and legal systems.Footnote 243 However, the recognition of river rights with reference to Indigenous or ethnic knowledge and law – framed around cultural, genealogical, and spiritual relatedness of communities to their rivers – has a reinforcing effect on territorial autonomy; it enhances the communities’ power to govern their territories according to their laws, worldviews, and aspirations.Footnote 244
This leads us to an important caveat. Our cases show that river rights can be strategically leveraged in furtherance of Indigenous or ethnic community agendas for territorial autonomy, provided that the recognition of the rivers as rights-holders aligns in some way with the worldview and law of the Indigenous or ethnic peoples who are attempting to do the leveraging.Footnote 245 We would not expect exact or complete alignment between rights in the settler-state legal framework and the legal framework of the Indigenous or ethnic communities, but the communities should be able to ‘see themselves’ in the notion of river rights. This is important to emphasize, because environmental or Indigenous NGOs advocating the rights of rivers (or nature more broadly) should not expect that river rights can be used interchangeably, everywhere, to resolve social, cultural, and ecological injustices. Rather, where river rights are a community-driven and culturally appropriate strategy, communities themselves have opportunities to leverage river rights frameworks in furtherance of their strategic goals. Whether and how those opportunities are realized is a matter for further research. We encourage others to continue this research agenda, through studies that track the legal and extralegal consequences of river rights cases – not just for the rivers, but for the related autonomy of Indigenous and ethnic communities.
Acknowledgements
We would like to thank Karen Grant for her helpful research assistance.
Funding statement
The authors received funding from the New Zealand Law Foundation, Research Council of Norway (grant number 301916), University of Canterbury, and Te Apārangi The Royal Society of New Zealand (Rutherford Discovery Fellowship).
Competing interests
The authors declare none.
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