The recognition of indigenous customary law in water resource management

Water Law: Craig, Gachenga: indigenous customary law in water resource management.The journal of water law published by lawtext publishing limited.The role and place of customary law in `modern' statutory legal systems has been the subject of academic discourse, particularly in nations which had traditional legal systems in existence before the subsequent super-imposition of statutory systems. The resilience of the traditional systems in some cases results in implementation challenges for the modern systems, thus necessitating the recognition of customary law by the subsequent statutory legal systems. `Law' means a body of rules recognised by a society as binding. When a society accepts as legitimate more than one system of rules having different sources, and in some cases in contradiction with each other, the society is said to have a polycentric, pluralistic legal system. Customary law comprises those sets of rules, established through the process of socialisation, that enable members of a community to distinguish accept-able from unacceptable behaviour and includes con-ventions and usages adhered to and followed by people through generations. The primary emphasis in most Anglo-American jur-isdictions has been on research, policy and laws relating to the recognition of customary law in the context of property rights and the criminal justice systems. In nations such as Australia, where there are no treaty rights or legal recognition of Indigenous sovereignty, recognising customary law in the sustain-able use and management of resources, including water, provides some important strategies for Indigen-ous peoples. Much more research and discussion is required on this aspect of environmental law and the rights of local communities, Indigenous and tribal peoples. This article seeks to contribute to this discourse by considering customary law in the context of international and domestic law with a particular focus on its potential role in natural resource management (NRM) (and particularly water resource management) based sustainable livelihoods. Drawing from the experience in Australia, the article reflects on some features of Indigenous customary law for NRM and forms of recognition of customary law proposed and used in Australia. It makes a case for legal pluralism as a more effective context for the recognition of customary law in NRMThe role and place of customary law in `modern' statutory legal systems has been the subject of academic discourse, particularly in nations which had traditional legal systems in existence before the subsequent super-imposition of statutory systems. The resilience of the traditional systems in some cases results in implementation challenges for the modern systems, thus necessitating the recognition of customary law by the subsequent statutory legal systems. `Law' means a body of rules recognised by a society as binding. When a society accepts as legitimate more than one system of rules having different sources, and in some cases in contradiction with each other, the society is said to have a polycentric, pluralistic legal system. Customary law comprises those sets of rules, established through the process of socialisation, that enable members of a community to distinguish accept-able from unacceptable behaviour and includes con-ventions and usages adhered to and followed by people through generations. The primary emphasis in most Anglo-American jur-isdictions has been on research, policy and laws relating to the recognition of customary law in the context of property rights and the criminal justice systems. In nations such as Australia, where there are no treaty rights or legal recognition of Indigenous sovereignty, recognising customary law in the sustain-able use and management of resources, including water, provides some important strategies for Indigen-ous peoples. Much more research and discussion is required on this aspect of environmental law and the rights of local communities, Indigenous and tribal peoples. This article seeks to contribute to this discourse by considering customary law in the context of international and domestic law with a particular focus on its potential role in natural resource management (NRM) (and particularly water resource management) based sustainable livelihoods. Drawing from the experience in Australia, the article reflects on some features of Indigenous customary law for NRM and forms of recognition of customary law proposed and used in Australia. It makes a case for legal pluralism as a more effective context for the recognition of customary law in NR