|“WATER LAW AND INDIGENOUS RIGHTS. Towards recognition of indigenous and local water rights and management rules in national legislation.”
By: Rutgerd Boelens,
Coordinator WALIR – Water Law and Indigenous Rights Program
The obstruction of indigenous and peasant communities’ customary water management systems (e.g. by national legislation), their exclusion from the water policy and planning process, their lack of representation in national and international decision-making organs, and the massive withdrawal of their water rights (e.g., by commercial enterprises, mining companies, power generation) must be reversed. Dinamically securing and recognizing local and indigenous water rights and management rules, for example through collective water rights, will importantly contribute to more stabile and sustainable water management practices and to alleviating not just rural but also urban poverty. It will strengthen local and national economies and enhance security of local livelihoods and national food security. Therefore, governments should structurally recognize local and indigenous water management rules and water access rights in national legislation, water policies and intervention programs. Together with public and private institutions of civil society they should actively contribute to the understanding of indigenous and peasant customary water rights and management systems; to including their representatives in planning and decision-making bodies; and to counteracting the process of the legal and material discrimination and destruction of their water access rights and management systems.
In Andean countries, peasant and indigenous water management systems constitute the fundamental basis for sustaining thousands of local livelihoods, just as they sustain national food security. But, as in other regions, local and indigenous water rights and management rules are under growing pressure. Water scarcity, local rights encroachment and undemocratic representation and decision-making contribute to a situation of increasing inequality, poverty, conflict and ecological destruction that affects particularly the poorest groups of society. Increasing demographic pressure, and the processes of migration, transnationalization and urbanization of rural areas, among others, lead to profound changes in the agrarian structure, local cultures and forms of natural resource management. Newcomers enter the territories of local peasant and indigenous communities, generally claiming a substantive share of the existing water rights and often neglecting local rules and agreements. As a consequence, millions of indigenous water users are being marginalized.
At the same time there appear to be opportunities for customary and indigenous cultures and rights systems. Most Andean countries have accepted international agreements and work towards constitutional recognition of ethnic plurality and multi-culturalism. At a general level ‘indigenous rights’ are associated to or considered to be ‘human rights’. However, when it comes to materializing such general agreements in practice or in concrete legislative fields, such as Water Laws and policies, particular local and indigenous forms of water management (water control rights) tend to be denied, forbidden or undermined.
In the last decade, in many Andean places the traditional struggle for a more equal land distribution has been accompanied or replaced by collective claims for a more equal water distribution, and for the legitimization of local authorities and normative frameworks for water management. This does not come as a surprise. In these times of growing scarcity and competition regarding the access to water resources, water rights become a pivotal issue in the effort of local indigenous and peasant organizations to defend their livelihoods and secure their future.
Based on this issue the program Water Law and Indigenous Rights (WALIR) was formulated: a collaborative program coordinated by Wageningen University and the United Nations Economic Commission for Latin America and the Caribbean (UN/ECLAC), and implemented in co-operation with counterpart institutions in Bolivia, Chile, Ecuador, Peru, Mexico, France, The Netherlands and the USA.1
In collaboration with existing networks and counterpart-initiatives, WALIR analyzes water rights and customary management modes of indigenous and peasant communities, comparing them with the contents of current national legislation and policy. Thereby, it sheds light on how the first are legally and materially discriminated against and destructed. The aim is to contribute to a process of change that structurally recognizes indigenous and customary water management rules and rights in national legislation, and to make a concrete contribution to the implementation of better water policies. As part of its strategy WALIR contributes to and presents concepts, methodologies and contextual proposals and tries to sensitize decision-makers regarding the changes needed for appropriate legislation and water policies. The strategy builds upon academic investigation, action-research, capacity-building and advocacy, together with local, regional and international platforms - both indigenous and non-indigenous. WALIR attempts to be a kind of think-tank to critically inform debates on indigenous and customary rights in water legislation and water policy. Equitable rights distribution and democratic decision-making and therefore, support for empowerment of discriminated and oppressed water user groups, are major concerns. While it also covers (comparative) cases of Mexico and the United States, its main focus of action is in the Andean countries: Peru, Bolivia, Chile and Ecuador. The project aims to have an effect beyond this Andean focus, by providing an example and tool for similar action research to be pursued in other regions.
The program, therefore, is not just academic but also action-based. While especially the indigenous populations are being confronted with increasing water scarcity and a traditionally strong neglect of their water management rules and rights, the current political climate seems to be changing. However, actual legal changes are still empty of contents, and there is a lack of clear research results and proposals in this area. The program aims to help bridge these gaps, facing the challenge to take into account the dynamics of customary and indigenous rules, without falling into the trap of decontextualizing and ‘freezing’ such local normative systems. Fundamentally, the WALIR program is directed towards activities and conclusions that facilitate local, national and international platforms and networks of grassroots organizations and policymakers.
Although the program is still underway, there is a range of objectives and subjects that have been dealt with. So far, WALIR, has resulted in a number of outputs that can be summarized as follows:
In its initial phase, WALIR has set up an inter-institutional network of institutions, scholars and practitioners of various disciplines and backgrounds, involved in and committed to the issues of peasant and indigenous water rights. Preparatory studies conducted so far have focused on current legislation and legal attention to, or neglect and discrimination of, indigenous and customary water rights. The second phase departs from the same general concepts as phase one and continues to contribute to the understanding of indigenous and customary water rights and management systems and to the process of their legal and material undermining. Second phase studies of WALIR focus on indigenous water rights in international law and treaties, indigenous identity and water rights, current indigenous water management systems, field case studies, and several thematic, complementary research projects (on the relation between “WALIR” and gender, food security, water management and livelihood systems, land rights, water policy dialogue methods, international treaties on indigenous water rights, historical rights’ encroachment, among others). Short comparative studies in other countries further complement and strengthen the project and its thematic networks, and lay the foundation for a broader international framework. In a continuous effort, these studies facilitate conceptual ideas, methodologies, and key points of attention, for technical-juridical changes in national water laws, within the framework of a coherent analysis of national legislation and indigenous/customary water rights and management systems. The second phase also concentrates on dissemination of the results, awareness raising and debate on the position of indigenous normative systems and local water user groups (publications, exchange meetings, workshops, policy and advocacy platforms). A major activity is the interAndean WALIR-course, organized to train young Andean water professionals with respect to the analysis of water control from interdisciplinary perspectives. In the course the issue of peasant and indigenous water rights, national legislation, Andean and legal anthropology, interactive intervention strategies, and watershed- and platform collaboration are intertwined in a modular capacity-building program.
Currently, local and indigenous rights and water management practices in Andean countries are obstructed and/or neglected by national legislation and intervention policies, resulting in marginalization and loss of water access rights of peasant and indigenous water user groups.
Dynamically securing and recognizing local and indigenous water rights and management rules, and the creation of inter institutional spaces for democratic decision-making and negotiation, will importantly contribute to more stabile and sustainable water management practices and to alleviating poverty. It will strengthen local and national economies and enhance security of local livelihoods and national food security.
The discrimination and exclusion of indigenous peoples and local community representatives from decision-making leads to inappropriate water management models and inequitable allocation practices. This should be corrected by actively integrating indigenous women and men and allowing them to participate and share experiences, knowledge and concerns, without essentializing or ‘freezing’ their local or traditional management forms. This can be done through the support to local and regional users platforms and organizations, and democratic user representation.
An action-based research project sets its participatory and scientific research as a base for proposals, methodologies, and actions to improve water legislation and policies. National research teams in various countries realize academic and action-research activities on water legislation, local and indigenous water rights, and policy support opportunities; and exchange information for comparative analysis and mutual learning processes. In this way and together with national water debate and training platforms, the results of such studies can be translated into proposals, methodologies and actions to improve water legislation and policies. By making a concrete contribution to the implementation of better water management policies and legislation which effectively recognize local water management rules, rights and practices WALIR presents alternatives to current approaches to IWRM.
The issue of ‘collective water rights’ is a promising concept for defending public interests, strengthening marginalized groups’ water access, and securing collective and individual rights in local water control, (see results International WALIR Seminar on Collective Water Rights and National Legislation, October 2004, Quito, Ecuador).
Young water professionals will occupy important positions in the water management and policy frameworks of the near future. Their disciplinary education, however, tends to be legalistic, technocentric and male-biased, and does not allow for the understanding of dynamic local and indigenous water control frameworks, and the analysis of legal pluralism in water management. Bringing together a diversity of natural and social sciences disciplines and professionals in a modular interAndean training programme on Water law and Indigenous Rights provides a coherent basis for the interdisciplinary capacity-building of these young Andean water professionals, and contributes to changing this practice of technocentric and top-down water policy and intervention strategy formulation.
Websites and selection of some WALIR publications (see also WALIR web page)
Beccar, Lily, Rutgerd Boelens & Paul Hoogendam (2002) ´Water rights and collective action in community irrigation´, in R. Boelens & P. Hoogendam (eds), Water Rights and Empowerment, pp. 1-21. Assen: Van Gorcum.
Boelens, Rutgerd, 2003. Local Rights and Legal Recognition: The struggle for indigenous water rights and the cultural politics of participation. Paper presented at The Third World Water Forum. Kyoto, Japan.
Boelens, Rutgerd & Paul Hoogendam, eds.
2002 Water Rights and Empowerment. Assen: Van Gorcum.
Legislación del Agua en Bolivia. WALIR: Centro AGUA / UMSS, CEPAL & Wageningen University, Cochabamba.
Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en Bolivia. WALIR: Centro AGUA / UMSS, CEPAL & Wageningen University, Cochabamba.
Cremers, Leontien, Marjolein Ooijevaar, Rutgerd Boelens, forthcoming. ‘Institutional reform in the Ecuadorian irrigation sector.’ Forthcoming in Natural Resources Forum, 2005.
Gelles, Paul H.
2002 Indigenous Peoples, Cultural Identity and Water Rights in the Andean Nations. WALIR: CEPAL & Wageningen University, Wageningen/ Riverside, California.
2002 Estudio de la Legislación Oficial Chilena y del Derecho Indígena a los Recursos Hídricos. WALIR: CEPAL & Wageningen University, Santiago de Chile.
2003 Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en Chile. WALIR: CEPAL & Wageningen University, Santiago.
2002 Indigenous Rights and Interests in Water under United States Law. WALIR: CEPAL & Wageningen University, Wageningen/ Boulder, Colorado.
2003 Indigenous Peoples’ Rights to Water and International Norms. WALIR: CEPAL & Wageningen University, Wageningen/ Boulder, Colorado.
2004 La legislación oficial de aguas frente a los derechos campesinos e indígenas en el Perú. Forthcoming in Water and Cultural Diversity, WALIR-UNESCO, Paris.
Guevara G., Armando, Iván Vera D., Patricia Urteaga C. and Gustavo Zambrano
2002 Estudio de la Legislación Oficial Peruana sobre la Gestión Indígena de los Recursos Hídricos. WALIR: CEPAL & Wageningen University, Lima.
2003 Estudio sobre marcos normativos indígenas y consuetudinarios referente a la gestión del agua en el Perú. WALIR: CEPAL & Wageningen University, Lima.
Hazeleger, Barend & Rutgerd Boelens
2003 The Right to be Different. The struggle for water and identity in the Andes. Documentary, Wageningen University and Agrapen, Wageningen.
1998 ‘Water as private property. Notes on the case of Chile’, en: Searching for Equity, R. Boelens & G. Dávila (eds), pp. 297-310. Assen: Van Gorcum.
2004 ‘Legislación de aguas y gestión de sistemas hídricos en países de la región andina’. Basic Document for the International WALIR Seminar on Colective Water Rights and National Legislation, October 2004, Quito, Ecuador
´Ecuadorian water legislation and policy analyzed from the indigenous-peasant point of view´. In:. R. Boelens & G. Dávila, eds, Searching for equity, pp. 279-287.Van Gorcum, Assen.
2002 Estudio nacional de la Legislación Oficial y los Marcos Normativos Consuetudinarios referente a la Gestón Indígena de los ecursos Hídricos. WALIR: CEPAL & Wageningen University, Quito.
2003 Estudio sobre marcos normativos indígenas y consuetudinarios en la gestión del agua en el Ecuador. WALIR: CEPAL & Wageningen University, Quito.
Peña, Francisco (ed.)
2004 Los pueblos indígenas y el agua. WALIR, El Colegio de San Luis, IMTA. Mexico, Bogotá : Obranegra Editores.
Roth, Dik, Rutgerd Boelens and Margreet Zwarteveen
2005 (forthcoming). Liquid Relations. Legal Pluralism and Water Rights: from global perspectives to local struggles. New Brunswick, New Jersey: Rutgers University Press.
Vera Delgado, Juana
2004 "Cuanto mas doy, mas soy…" Discursos , normas y género : la institucionalidad de las organizaciones de riego tradicionales. In : F. Peña (ed.) Los pueblos indígenas y el agua. WALIR, El Colegio de San Luis, IMTA. Mexico, Bogotá : Obranegra Editores.
2002. Indigenous Water Rights, Local Water Management, and National Legislation. WALIR Studies Volume 2 Research and seminar results of the programme. Wageningen University/IWE and United Nations /CEPAL.
2003 Análisis de la situación del riego en la República del Ecuador. Misión de Consultoría (Hendriks, Mejía, Olazával, Cremers, Ooijevaar, Palacios), Quito : CONAM-BID.
2005 (fortcoming). Water and Indigenous Peoples. WALIR- UNESCO, Series LINKS, Paris: UNESCO.