Topic: Use and regulation of water resources in indigenous territory

Abstract
The Indigenous indigenous people, since time immemorial, have been subjected to
marginalisation by non-native societies. A case in point being is the indigenous civilizations
that developed where rivers had their presence. The water in these territories, which was once
meant for traditional purposes like farming or fishing, now battles for breath owing to
pollution beyond imagination thanks to the ‘making of the modern world,’ fuelled by
processes such as industrialization and urbanisation. The way these groups treated water in a
caring and respectful way has been destroyed by the modern idea of treating it as ‘a
commodity.’ These changes have been extremely harsh on South Asian groups and
communities in countries like Bangladesh, India, the Philippines, Cambodia, Pakistan, and
Indonesia, which constitute the focal point of this paper.

The researchers would focus on those regions where the rights of these communities are in
grey or are not formally recognized. The lack of a global framework on this pressing issue
has resulted in a multitude of problems faced by these communities and the fact that
exploitation by multinational corporations in the name of development still continues, which
disregards the indigenous people’s right to these rivers. By purposefully morphing the idea of
rivers being a “life-giver” to nothing more than a means to be profited upon, the urban
civilization is systematically rooting out the untapped reserves which are left for the means of
maximum profit. This unleashed chimera chimaera can only be restrained if there are rights
made or recognized for sustainable and adaptive water governance, that which are ubiquitous
and support future ratificationsramifications, if necessary. This will be elucidated as the paper
progresses by taking cognizance of successful water treaties such as The Indus Water Treaty,
1960.

Key Words: Indigenous communities, rights, identity, climatic effects, water resources
 I. Introduction

“We do not inherit the Earth from our ancestors, we borrow it from our children.” This
Native American saying finds its apt use in contemporary times, especially after the concept
of sustainability cropped up in the 1990s1. Addressing social, environmental, and economic
causes has become the need of the hour in order to have a proper resource management
system combining various world governments.

Water, being the elixir of life, needs to be managed in a streamlined way, and the stepping
stones for the same were reflected in Integrated Water Resource Management (IWRM),
which aims at the sustainable use and distribution of water resources 2. At a time when the
population is booming and expected to reach the mark of 8 billion soon 3, water is becoming
an increasingly scarce resource even in the countries with adequate resources.

This ‘practical oxymoron’ could be due to a large number of reasons ranging from improper
distribution to contamination and geo-political reasons, but one thing is for sure, no one is
spared of this evil of water scarcity; it affects all from the richest to the poorest alike though
the extent may vary; the effect is common. Basic hygiene becomes a luxury, as does drinking
water, making this resource even more expensive and inaccessible.4

According to the Water, Sanitation and Hygiene(WASH) initiative of UNICEF(United

Nations Children's Fund), “Four billion people — almost two-thirds of the world’s
population experience severe water scarcity for at least one month each year. While, over two
billion people live in countries where water supply is inadequate.” 5 Future statistics also state
that this could just be the beginning of a long episode of a ‘water crisis.’

1
United Nations Conference on Environment and Development, Rio Declaration (1992) https://documents-dds-
ny.un.org/doc/UNDOC/LTD/N92/153/91/pdf/N9215391.pdf?OpenElement accessed 11 December 2022.
2
United Nations Environment Programme, 'What is Integrated Water Resources Management?'
https://www.unep.org/explore-topics/disasters-conflicts/where-we-work/sudan/what-integrated-water-resources-
management. accessed 11 December 2022.
3
United Nations Department of Economic and Social Affairs, 'World population to reach 8 billion on 15
November 2022' https://www.un.org/en/desa/world-population-reach-8-billion-15-november-2022 accessed 11
December 2022.
4
UNICEF, 'Water scarcity: Addressing the growing lack of available water to meet children's needs'
https://www.unicef.org/wash/water-scarcity accessed 11 December 2022.
5
Ibid 3.
Though these problems exist at a macro level, one often points out the hardships faced by the
groups on the mainland but tends to forget the marginalized communities of indigenous
people who are at a low point in the ‘social hierarchy.’

Indigenous communities, as defined by Amnesty International, have distinct social, cultural,

and political beliefs which are different from the ‘dominant societies.’ 6 These communities,
believed to be the original inhabitants when various civilizations arrived, have somehow
retained the ancient knowledge and characteristics whilst not bowing down to the modern
ideas of industrialization and globalization even though they have been subjected to being
marginalized by the non-native communities.

Whilst the struggles for having a recognized identity for South Asian indigenous
communities have seen stagnation7, depriving them of rights has been increasingly prevalent
in contemporary times. This includes less control over water that flows through these
territories. Fuelling rapid changes in climatic conditions like the El Nino effect(discussed
later) may also directly or indirectly affect the inhabitant communities directly or indirectly
by disrupting the food chain in these areas.

Hence, in order to control the augmenting rise in health problems and destitute conditions of
these communities, which is directly related to problems associated with water distribution,
having a sustainable solution for the availability of water becomes even more imperative. 8

II. Arguments Framed

1) The recognition of indigenous communities and the struggle for having separate
identitiesidentity. (Referred to as IDENTITY STRUGGLES)

2) Climatic changes, environmental factors, and the resulting problem problems on in

these communities. (Referred to as CLIMATIC EFFECTS)

6
Amnesty International, 'Indigenous People' https://www.amnesty.org/en/what-we-do/indigenous-peoples/
accessed 11 December 2022.
7
International Work Group for Indigenous Affairs(IWGIA), ‘ASEANs INDIGENOUS PEOPLES’ ([2010).]
8
Elke Herrfahrdt-Phle, ‘Sustainable and Adaptive Governance of Water Resources’ ([2011) ] Research Gate.
 III. Water Governance to achieve sustainability

According to the Stockholm International Water Institute (SIWI), “Water governance refers
to the political, social, economic, and administrative systems that influence the use and
management of water. It is essentially about who gets what water, when and how, and who
has the right to water, its related services, and their benefits.”9

SIWI aims to achieve water security and fair allocation so as to avoid disputes. It believes
that the way societies choose to govern water resources directly affects the livelihood of the
concerned people, and in some cases, it can help break in breaking off the vicious cycle of
poverty. Another corollary to the same ideology is that a good water governance system may
help in attaining sustainable development goals for the sake of having good sanitation and
socio-economic development.10

So, one can now acknowledge that water governance is one of the central atriums of
sustainable use of water resources. Hence, the foundation of IWRM is to curb the needs of
both native and non-native societies.

The prevalent features of IWRM are: “participation, equity, and integration (social
sustainability), efficiency and coherence (economic sustainability), accountability and
transparency (political sustainability) and ecological sustainability and responsiveness in the
ecological context.”11

3.1 The various dimensions of IWRM

This organization also aims at reacting to the climatic changes caused by ill water
management and thus has various aspects of dealing with the same.

Social dimension: Stakeholder participation and equity ensure that the interests of all
societies are carefully looked upon before executing a policy. Participation can give an
opportunity to the underrepresented groups to raise a voice, assert their problems and
requirements, and finally make a claim for their rights. This also includes reaching reach to
and owning ownership of these water resources (Saravaran et al. 2009). The result of this

9
SIWI., ‘Water Governance’ (2022), https://siwi.org/why-water/water-governance/ [2022].
10
Ibid 9.
11
Supra 8.
may be more productive than one can believe. The labour of fetching water from long
distances could be utilised as a means of sustaining one’s livelihood.

Economic and political dimension: This sub-header includes having efficient use of natural,
human, and financial resources, especially in those countries with non-adequateinadequate
amounts of the same. Coherence and consistency in political regimes also find their mention
under the economic dimension.

“Water governance organisations are bound by the rules which have been formulated by
legislatures for the governance and management of water resources and their actions should
be authorised by law.”12

Accountability and transparency, both towards superior authorities and users, should be
ensured to achieve the actual sustainability one yearns for, leading to a balanced ecological
system and, at the macro level, a balanced biosphere.13

Lastly comes the ecological dimension: The ecological dimension dwells on the very need of
havingfor sustainability in resources that are limited. Sustainable water governance focuses
on the needs of not only the present but the future generations as well. 14 The use is expected
to be in such a way that exploitation and pollution are minimised while making water
available to people even in the remotest of areas. Inculcation of adequate measures to react to
these changes is given utmost importance.

So, it can be comprehended that IWRM has taken measures to improve the sustainable water
governance, but still, it has a long way to go. Providing this basic resource to people who are
not present on the mainland is being bettered; however organizational framework and
combing combining various governments of the world to prepare for the expected ‘water
scarcity’ still lack in the policies of IWRM.

12
Monica Garca-Salmones, ‘Taking Uncertainty Seriously: Adaptive Governance and International Trade:
A Reply to Rosie Cooney and Andrew Lang’(2009), 20 European Journal of International Law 167-186
(2009).
13
Supra 8.
14
P Rogers and A W Hall, ‘Effective Water Governance’ ([2003)] Global Water Partnership.
 IV. The impact on South-Asian indigenous communities (IDENTITY STRUGGLES)

In Asia particularlymainly, there are estimates that around two-thirds of the world’s
indigenous peoples are estimated to live, which accounts for numbers over a million people
representing 2,000 distinct civilizations and languages.15

With such a large number of communities in countries including but not limited to
Bangladesh, Cambodia, India, Indonesia, Malaysia, Nepal, Philippines, Thailand, and
Vietnam, the debate on the rights and identities of these communities, which consists of many
socio-economically backward groups, continue.

Where nations like Nepal, Philippines, and India have had some great measures for
recognition of these inhabitant groups, the journey for identification and recognition has a
long way to go in countries like Malaysia and Indonesia16

One of the best examples in this regard is of Bangladesh, where there have been numerous
policies for the betterment of the concerned indigenous groups. (elucidated at later stages.)

When it comes to contribution and consultation in the decision-making processes, one

can find varying levels of struggle. While in India, and the Philippines, and Cambodia, the
indigenous and Statestate institutions coexist17, countries like Pakistan do not even officially
recognize indigenous communities18

Water in territories belonging to the indigenous people has been exploited 19 to the extent that,
what was previously considered as ‘sacred’ water is now being treated as a ‘commodity’ and
being extensively exploited and contaminated by the governments of the respected
countries.20

This depletes the use of water that rightfully is in the communities’ territories to be carried
out for vocational purposes like farming or fishing and even those spiritual practices that
which require this precious resource.

15
Stefania Errico, ‘The Rights of Indigenous Peoples in Asia’(2017), International Labor Organization. (2017).
16
Ibid 15.
17
Ibid 15.
18
Waqar Ahmed Seyal & Taimoor Ul Hassan, ‘Representation of Indigenous People in Pakistan’ ([2017) ]
Research Gate .
19
David H Getches, ‘Indigenous Peoples' Rights to Water Under International Norms’ ([2005)] Hein Online .
20
Yolanda Lopez-Maldonado, ‘Indigenous Perspective on Sacred Natural Sites’ (1st edn 2019) 193-194.
Under the blanket term of “civilizing these native groups,” the colonizing groups “extracted,
developed, or despoiled local natural resources in their quest for riches. Often seen as
primitive, colonizers systematically imposed their cultural and political identities upon
indigenous populations, stripped them of many of their ancestral lands and resources, and
deprived them of their traditional ways of life.”21

In South Asia specifically, there can be various topographies where the indigenous
communities may inhabit, ranging which could range from rainforests to arid and semi-arid
regions where the need for clean and fresh water increases. It can be seen that there is no
unanimous international law for these groups to protect their free and uninterrupted access to
water22 , so the claims of having this rightful use could be neglected in countries that lack
giving the basic identity to of such communities.

V. The Personhood of the Whanganui River (IDENTITY STRUGGLES)

Around five years ago, a well-known news outlet, ‘The Guardian’ , reported that the
Whanganui River in New Zealand had received "personhood"23, i.e., the same legal rights as a
human being.

This was a significant step taken by the New Zealand Government as it ended a 140-year-
long ensuing legal pursuit by the Māori (indigenous people of New Zealand), which started
by filing petitions in the 1870s for the Whanganui River to gain personhood, which the
"iwi"24 referred to as "Te Awa Tupua".

The "Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 25 ", act effectively
gave legal rights to the Whanganui River and made it a living entity named "Te Awa Tupua".

21
Supra 19.
22
Supra 19.
23
. Eleanor Ainge Roy, 'New Zealand River granted same legal rights as human being' (2017) The Guardian
(Dunedin,16 March 2017) https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-
legal-rights-as-human-being accessed 12 December 2022.
24
Rāwiri Taonui, 'Tribal organisation', Te Ara - the Encyclopedia of New Zealand,
http://www.TeAra.govt.nz/en/tribal-organisation accessed 12 December 2022.
25
. Govt. of New Zealand, ‘Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (No. 7 of 2017)’
https://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html#DLM6830854 accessed 12 December
2022.
Section 14 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 declares
Whanganui River as a legal person. It thereby grants all the rights, powers, duties, and
liabilities of a legal person at their disposal.

It should be noted that since the Te Awa Tupua is a legal person and not a living person, A
body was enacted as the face of the former and act acted in its name. Citing Subpart-3 (Te
Pou Tupua) Section (18, 19)26, it states:

“Section 18 talks about establishing the establishment of an office for the representation of
Te Awa Tupua called as Te Pou Tupua. This office has all the rights, duties, powers, and
responsibilities for representing the Te Awa Tupua as its “human face” and has been provided
the means to achieve the same in accordance to with the provisions of this act.

Section 19: The Function of Te Pou Tupua is to act and speak for and on behalf of Te Awa
Tupua, to promote and protect the health and well-being of Te Awa Tupua,; and to perform,
for and on behalf of Te Awa Tupua, landowner functions etc.”

It can be conferred from the above mentionedabove-mentioned sections of the Te Awa

Tupua (Whanganui River Claims Settlement) Act 2017 , that Te Awa Tupua can engage in
business and protect itself from exploitation thorough through the Te Pou Tupua.

VI. Status Quo on rights related to water resources in other South Asian Countries
(IDENTITY STRUGGLES)

6.1 The Case case of Bangladesh

Bangladesh became the latest nation to acknowledge rivers as living things with legal rights
which happened in 2019. This was another instance of advocacy from the Bangladesh
Supreme Court in the Bangladesh Rivers case. The Court's ruling was based on a unique
interpretation of the Constitution that connected the rivers' legal rights to the public trust
theory and the right to a healthy environment. This foundation might be contentious in and of
itself, and the rivers' new legal standing could pit their interests against those of the
communities that depend on them. The Bangladesh Rivers case may be understood as a
component of the global effort to offer people legal rights by drawing analogies between it
and rulings made in India and Colombia that are comparable to this one.27

26
Ibid 3
6.2 The case Case of Indonesia
In official government papers and the Indonesian constitution, the word "masyarakat adat"
(customary people) is frequently used to refer to indigenous peoples. The State, NGOs, and
other activists that support the rights and interests of the masyarakat adat do not all have the
same understanding of what the term "masyarakat adat28" means. The constitutional texts
merely specify that, if the masyarakat adat does exist, the State would recognise the rights of
the masyarakat adat, unless doing so would be contrary to the national interests. Indonesia
has a constitution that recognises masyarakat adat, but there is no explicit administrative
legislation that recognises their existence and collective rights. The rights of the masyarakat
adat are enshrined in numerous articles of various sectoral legislation. This lack of an
administrative legislation causes lapses in the protection of the masyarakat adat and makes
them prone to exploitation by the companies.29

Here, we can see two alternating points of view: One wherein a particular sect of indigenous
people in their respective countries were so driven in their pursuit to protect their sacred river
and to prevent exploitation that they engaged in legal battles to prevent any harm to their
sacred river(New Zealand and Bangladesh).

On the other hand, we can see two rivers with inconceivable levels of importance in India
since generations and generations which have fallen into disarray since no one wants to hold
the responsibility to protect the rivers, and the indigenous people who might lack apt
education, could be less aware of about the severity of the situation at hand and due to this,
the indigenous people are less inculcated with the modern practices of preservation which
affect affects the overall quality of a water resource in an indigenous territory.

27
Mohammad Sohidul Islam & Erin O’Donnell, ‘Legal rights for the Turag: rivers as living entities in
Bangladesh’([2020) ] Research Gate.
https://www.researchgate.net/publication/
346952658_Legal_rights_for_the_Turag_rivers_as_living_entities_in_Bangladesh accessed 13 December 2022.
28
Mainly by AMAN (Aliansi Masyarakat Adat Nusantara, Indonesian Indigenous Peoples' Alliance of the
Archipelago). AMAN, was established 1999 at a national congress of Indonesian indigenous peoples attended
by more than 200 adat community representatives from 121 indigenous peoples. Among the objectives of
AMAN is to restore adat communities’ sovereignty over their customary laws and cultures and control over
their customary lands, natural resources, and livelihoods. In 2012, AMAN claimed 1,922 affiliated customary
community groups at districts and provinces level.
29
Directorate General of Water Resources, ‘Indonesia: Emergency Assistance for Rehabilitation and
Reconstruction (Component 1: Public Works Infrastructure) Pasigala Raw Water Supply System Subproject’
Asian Development Bank [2021] https://www.adb.org/sites/default/files/project-documents/52316/52316-001-
ipp-en.pdf accessed 13 December 2022.
A diverse country like India can take precedence from its past treaties with other nations
which were signed after its independence, like the Indus Water Treaty, which is explained
below: -

VII. Indus Water Treaty (“IWT”) (CLIMATIC EFFECTS)

The Indus river River has been a point of dispute between the four nations that it passes
through, namely India, Pakistan, China, and Afghanistan, ever since the partition of India in
1947. Tibet is the river's source country.

In 1948, India temporarily cut off Pakistan's access to water, but once the war ended, it was
reopened. Pakistan reported the incident to the UN in 1951 and accused India of interrupting
the water supply to several Pakistani areas.

Jawaharlal Nehru, the then Indianthen-Indian Prime Minister, and Ayub Khan, the President
of Pakistan at the time, both signed the IWT. The discussions for the agreement lasted nine
years and were mediated by the World Bank (then known as the International Bank for
Reconstruction and Development).

This agreement was developed by the World Bank in 1954 based on suggestions from the
UN. Finally, on September 19, 1960, it was signed.

The terms of the agreement specify how the Indus River and its five tributaries would be
shared.

The three eastern rivers that India now controls are:

 Ravi
 Beas
 Sutlej

India shall have unlimited access to all of the waters of the Eastern Rivers (until the
occurrence of any undesirable condition)

The three western rivers that Pakistan now controls are:

 Indus
 Chenab
 Jhelum
The UN established the Permanent Indus Commission, which has a system for arbitration to
settle disputes peacefully, to handle any potential water-sharing concerns. The pact permits
India to use the water from the western rivers for storage, agriculture, and the production of
power, among other domestic, non-consumptive requirements.30

Currently, Indo-Pak ties are tainted by the Kashmir conflict, which includes the water
concerning the affected areas. During a conflict between the two countries, there have been
instances of violation of IWT wherein one of the countries alleged the plausible disruption in
water flow due to continuing projects on the rivers31 . This might have an impact on the
communities living in these bordering areas and to on the common man who uses the river
water for a variety of purposes. The water issue is critical since anthropogenic and
environmental factors impact water availability. Two big populations, India and Pakistan,
consume enormous quantities of water, which cannot be replaced unless it is replenished
through the hydrological cycle. However, climate change is significantly altering the water
cycle. There will be conflicts over water as climate change progresses.

Climate change is a stressor, and "although the possibility for outright conflict between
countries over water is minimal, collaboration is frequently lacking in disputes over
transboundary resources." 32

The glaciers of the western Himalayas are vital to the Indus Basin. Mountains serve as
reservoirs, storing water and releasing it throughout time. During dry seasons, the ice
reservoirs serve as the principal source of river flow. Climate change is affecting the
Himalayan glaciers, which does not bode well for the Indus Basin. The basin, which spans
1.12 million square kilometres, is home to 300 million people from India, Pakistan,
Afghanistan, and China which may be impacted from these widespread phenomena. Glacial
melt from the western Himalayas accounts for more than 40% of the basin's yearly water
flow. The depletion of glacial supplies would result in a 30-40% reduction in water flow in
the Indus River, the primary river of the Indus Basin.33

30
Pat Bauer, ‘Indus Water Treaty’, Encyclopedia Britannica (2022) www.britannica.com/event/Indus-Waters-
Treaty accessed 13 December 2022.
31
| Press Trust of India, ‘Pakistan Raises India's 'Violation' of Indus Waters Treaty With World Bank’
(Economic Times, 22 May 2018) https://economictimes.indiatimes.com/news/politics-and-nation/pakistan-
raises-indias-violation-of-indus-waters-treaty-with-world-bank/articleshow/64271901.cms?from=mdr accessed
13 December 2022.
32
Aaron T Wolf, ‘“Shared Waters: Conflict and Cooperation”’, Annual Review of Environment and Resources
(2007).
33
(Mahe Zehra Husain, ‘The Indus Waters Treaty in Light of Climate Change’(2010),
http://www.caee.utexas.edu // http://environmentportal.in ). (2010)
 VIII. The El-Niño effect (CLIMATIC EFFECTS)

So far, the researchers have talked about the hardships that the communities have to face due
to the lack of regulation of water resources but now, a practical example of how a complex
natural phenomenon could worsen the situation would be dealt upon. A phenomenon known
as El-Niño and El Niño-Southern Oscillation (ENSO) influences the monsoon cycle in
Southern parts of Asia.34 “The El Niño phase is characterized by a warming or above-
average sea surface temperatures (SST) in the tropical central and eastern Pacific Ocean
surface.”35

It is due to these reasons that rainfall over parts of South and Southeast Asia tends to decline,
while the result is the opposite in tropical parts of the Pacific Ocean. The winds at this time
flow towards the Western side, and this phase is known as the warm phase of El-Niño.

During the years of this warm phase, widespread droughts that which result from deficient
rainfall are observed in parts of South Asia that which includes the drying up of natural water
reservoirs, while floods due to widespread rainfall are common in parts of South America.

During the cold phase of El-Niño, the effect is the opposite, and excessive rainfall is reported
in Asia.

While this phenomenon has a widespread effect on the world due to its ability to change the
global atmospheric circulation, which influences temperature and precipitation across the
globe, the impact on indigenous communities is also quite visible.

“During strong El Niño events, tropical species arrive from the north while native fish species
either migrate southwards or collapse” 36. This has a direct impact on the fishers and those
native communities, which wholly depend on marine species for food and livelihood.

In the year 2015-16, a record-breaking episode of El-Niño showed its presence in surpassing
previous Surface Area Temperatures (SAT), caused causing widespread agricultural
disruptions and human discomfort even in island nations.37

34
Kaustubh Thirumalai et al., ‘Extreme Temperatures in Southeast Asia Caused by El Nino and Worsened
by Global Warming, Nature Communications’ (2017).
35
Shouraseni Sen Roy, ‘Role of ENSO on Conflicts in Global South’, 4 Frontiers in Climate (2022).
36
Arnaud Bertrand et al., ‘El Nio Southern Oscillation (ENSO) Effects on Fisheries and Aquaculture’ ,
Food and Agriculture Organization of the United Nations (2020).
37
Supra 23.
It can be acknowledged that a Non-Governmental Organization(NGO), Greenpeace Media,
highlighted the impact of El-Niño on indigenous communities in Mindanao, Philippines.38

It was asserted that due to the climatic changes, the fields dried up, pushing which pushed a
number of families into serious financial conditions, which led to some of the families being
restricted towards higher education and the females being confined to household chores.

IX. The case of Ganga and Yamuna (CLIMATIC EFFECTS)

Moving on with yet another example of similar legislation, which was passed by the
Uttarakhand High Court but, was stayed by the Supreme Court of India.

The state government of Uttarakhand in 2017 petitioned the Supreme Court, claiming that it
was really tough to comply with the order given in the case of Lalit Miglani Vs vs. State of
Uttarakhand & Others39 as the rivers in question pass through a plethora of states over
which it has no jurisdiction. The state government had refused to take the responsibility of
acting as their legal guardian (i.e., Ganga and Yamuna) as directed by the Uttarakhand High
Court to preserve and conserve the holy rivers. In a landmark decision intended to protect and
maintain the rivers, the High Court recognised the Ganga, Yamuna, and all of their tributaries
to be living individuals with the status of a legal persons and all the associated rights, duties,
and liabilities of a living person. The director of NAMAMI Gange, the Chief Secretary of
Uttarakhand, and the Attorney General of the State as loco parentis (in the place of a parent )
of rivers who were entrusted with the task of protecting the rivers and their tributaries. The
High Court high court had stated that "these officers are required to protect the status of
rivers Ganges and Yamuna and to promote the health and well-being of these rivers."
Because it was challenging to execute and comply with the order, the state administration
contested the legality of the ruling.

A panel of Chief Justice J. S. Khehar and Justice D. Y. Chandrachud heard arguments from
senior attorneys Gopal Subramanium and Farrukh Rasheed on the contention that the High
Court had erred in issuing its ruling. They were accepted, and the court stayed the HC ruling.
The state authorities asserted that the two sacred rivers were crucial to sustaining the nation's

38
Greenpeace, El Nio Impacts on Indigenous Peoples in Mindanao
https://media.greenpeace.org/Detail/27MZIFJJM78FH.
39
Lalit Miglani vs State Of Uttarakhand And Others (2017) (Writ Petition (PIL) No.140 of 2015)
population's health and quality of life, yet that is not sufficient to proclaim them to be living
things. The state administration stated in their plea that the Ganga and Yamuna cannot be
recognised as legal persons "only to safeguard the religion of the public." 40

A case in point on similar lines being is the Narmada Bachao Andolan.41

X. Scope of Rights

Taking the above mentionedabove-mentioned cases into perspective, it can be seen that the
world is divided on the stance of providing protection to the water bodies flowing through
indigenous territories. While on the one hand, the government of New Zealand provided the
Whanganui River with personhood, thus, effectively protecting this historic water for
perpetuity and preventing any illegal usage or exploitation from any individual or
organisation. Other mentioned South Asian countries still lack a stringent law on this
prospect which could open doors for exploitation in the pursuit of making water to be used in
a profit generatingprofit-generating way. According to multiple studies by the National
Centre for Biotechnology Information, the Ganga River basin is getting contaminated with
arsenic due to excessive mining and exploitation by companies42. The same water is then used
to water crops and eventually cultivated and provided as food for the people.

This also epitomises the fact that the marginalisation marginalization to these groups might
be a factor for less information being provided to them, which can cause a multitude of health
relatedhealth-related issues.

Citing another study from the National Centre for Biotechnology Information, CaGB43 is a
significant public health problem along Indo- Gangetic Belt. Strong correlations exist
between those living near the Ganga River and those exposed to high soil arsenic levels for
the development of gallbladder cancer. Bihar’s Central and North Central districts have more

40
Amit Anand Choudhary, SC stays Uttarakhand HC order declaring Ganga, Yamuna as living entities: India
News - Times of India The Times of India, https://timesofindia.indiatimes.com/india/sc-stays-uttrakhand-hc-
order-declaring-ganga-yamuna-as-living-entities/articleshow/59494002.cms (2017).
41
https://narmadaandolan.org/compilation-of-documents-volume-i-till-2015/
42
Dipankar Chakraborti et al., ‘Groundwater arsenic contamination in the Ganga River Basin: A future
health danger International journal of environmental research and public health’ (2018) ,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5858255/. (2018).
43
CaGB here refers to carcinoma gallbladder.
CaGB cases reported. The district with the most instances recorded isin Patna, the state
capital.44

These studies are in direct correlations correlation with the fact that if the indigenous
populations are not adequately educated, they would be prone to the dangers that these
malpractices, like open-mining or dumping mine -waste in rivers, could cause.

XI. Conclusion and Recommendations

In conclusion, it is evident that the issues related to the El-Niño effect, climatic changes, and
exploitation by organizations are all real problems that are evident in the mentioned South
Asian regions and and cannot be ignored any further. Necessary actions are bound to be
taken in terms of strengthening the rights of indigenous communities which form an integral
part of any society, being the groups, which actually understand and strive to preserve the
natural resources. The identity Identity and natural rights of these communities should also be
given equal importance to. Robust and ratified laws protecting the water resources, starting
from indigenous people, should be discussed so as to prevent a calamity (scarcity) from
taking an irreversible course.

44
Richa Madhawi et al., ‘Geographical pattern of carcinoma gallbladder in Bihar and its association with
River Ganges and arsenic levels: Retrospective individual consecutive patient data from Regional Cancer
Centre South Asian journal of cancer’(2018) , https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6069329/ .
(2018).