Matthew Stubbs

Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference, and the Limits of Law

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal systems regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Dredge Your Way to China? The Legal Significance of Chinese Reclamation and Construction in the South China Sea

This article examines five of the most important legal issues arising from Chinese reclamation and construction in disputed areas of the South China Sea. First, does the construction have any impact on competing territorial claims in the South China Sea? Second, does the construction affect rights to maritime zones? This involves consideration of the differing legal significance of islands, rocks, low tide elevations and artificial islands, the relevance of land reclamation and construction in this context, and the resulting implications for maritime zones including territorial seas, EEZs and safety zones. Third, are there other legal consequences arising from the Chinese activity (for example, on environmental grounds)? Fourth, does the construction bolster any potential ability of China to impose an Air Defence Identification Zone in the South China Sea? Fifth, what is the significance – legally and practically – of the award in the South China Sea Arbitration?