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Page 1: Water and Indigenous Peoples

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Local and Indigenous Knowledge Systems

water andindigenous peoples

Indigenous peoples from all corners of the globecontinue to struggle for acknowledgement andrecognition of their unique visions of water,both at home and in national, regional andinternational forums. But almost withoutexception, their voices remain obscured by amainstream discourse rooted in the conceptionof water as a mere commodity. Water andIndigenous Peoples is based on the papersdelivered on the occasion of the Second and theThird World Water Forums (The Hague in 2000and Kyoto in 2003). It brings to the fore some ofthe most incisive indigenous critics of interna-tional debates on water access, use and man-agement, as well as indigenous expressions ofgenerosity that share community knowledgeand insight in order to propose remedies forthe global water crisis.

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water and indigenous peoples

UNESCO – LINKS

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This book should be cited as:UNESCO, 2006, Water and Indigenous Peoples. Edited by R. Boelens, M. Chiba and D. Nakashima.Knowledges of Nature 2, UNESCO: Paris, 177 pp.

Co-editorsRutgerd BoelensCoordinator, Water Law and Indigenous Rights Programme (WALIR), Wageningen University(Nieuwe Kanaal 11, 6709 PA, Wageningen, the Netherlands)

Moe ChibaLocal and Indigenous Knowledge Systems (LINKS), UNESCO

Douglas NakashimaLeader, Local and Indigenous Knowledge Systems (LINKS), UNESCO

English ReviserPeter Coles

Graphics and Cover DesignStéphane Rébillon www.stephanerebillon.com

Acknowledgements (alphabetical order)Ken-ichi Abe (Japan Centre for Area Studies, Osaka, Japan)Teresa Callihoo Samuel DuboisMailin Fauchon (Secretariat of the Third World Water Forum)Noriko Iizuka and team (Japan Centre for Area Studies, Osaka, Japan) Melisande MiddletonOuri Scott

Central America Global Water PartnershipCentre for Research on Life and Environment (CRLE) (USA)Fundación Solón (Bolivia)Japanese Funds-in-Trust for the Promotion of International Cooperation and Mutual UnderstandingNetherlands Ministry of Foreign AffairsTebtebba Foundation (Philippines)United Nations – Economic Commission for Latin America and the Caribbean (ECLAC)Water Law and Indigenous Rights Programme (WALIR) Wageningen University (Netherlands)

Printed in 2006 by the United Nations Educational Scientific and Cultural Organization, 7 Place du Fontenoy, 73752 Paris 07 SP, France

The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or its authorities, or concerning the delineation of its frontiers or boundaries.

The authors are responsible for the choice and the presentation of the facts contained in this text and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization.

The Local and Indigenous Knowledge Systems (LINKS) project was launched by UNESCO in 2002.Website: www.unesco.org/links

For further information, please contact:Douglas Nakashima/Moe ChibaUNESCO-LINKS1, rue Miollis 75732 Paris Cedex 15 FranceE-mail: [email protected] /[email protected]

(SC-2006/WS/3)

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Foreword

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ForewordBy adopting the UNESCO Universal Declaration on Cultural Diversity in 2001, the international community hasdemonstrated its commitment to recognise the “contribution of traditional knowledge, particularly withregard to environmental protection and the management of natural resources, and fostering synergiesbetween modern science and local knowledge” (Action Plan No14 of the UNESCO Universal Declaration onCultural Diversity). Yet in the domain of water, a large gap remains between policy and practice. Indigenouspeoples from all corners of the globe continue to struggle for acknowledgement and recognition of their ownvisions of water, both at home and in national, regional and international forums. Almost without exception,their voices remain obscured by a mainstream discourse rooted in a conception of water as a mere commodity.

This publication brings some of those indigenous voices to the fore. It includes words from some of themost incisive indigenous critics participating in current international debates on water access, use andmanagement, as well as expressions of indigenous knowledge and transdisciplinary insights with a viewto proposing remedies for the global water crisis. It also benefits from the contributions of numerousspecialists who share expertise and experience in the fields of anthropology, political science and law.

Water and Indigenous Peoples is the second volume in the Knowledges of Nature series of UNESCO’sLocal and Indigenous Knowledge Systems (LINKS) project. This cross-cutting project brings togetherUNESCO’s Sectors for Culture, Natural Sciences, Social and Human Sciences, Education, andCommunication and Information. Launched in 2002, the LINKS project works with local knowledge hold-ers to promote recognition of their expertise about the natural environment and to reinforce their con-tribution to a more equitable governance policy for natural resources.

This volume is based upon the papers delivered during the official sessions on water and indigenous peo-ples organized on the occasion of the Third World Water Forum held in Kyoto in 2003, with additionalcontributions from the Second Water Forum in The Hague in 2000. The official session on indigenouspeoples at the Second World Forum was convened by UNESCO’s cross-cutting LINKS project. At the ThirdWorld Water Forum, under the overall theme of Water and Cultural Diversity, UNESCO-LINKS coordi-nated two official sessions on indigenous peoples in close partnership with: Central America-GlobalWater Partnership (Costa Rica), Centre for Respect of Life and Environment (CRLE, USA), ECLAC (UnitedNations Economic Commission for Latin America), Fundación Solón (Bolivia), Tebtebba Foundation(Philippines) and the WALIR program, (coordinated by Wageningen University, the Netherlands andECLAC). In addition to the official sessions, indigenous participants at the Third World Water Forumorganized an indigenous caucus that brought together participants throughout the Forum. They heldpreparatory meetings and formulated a collective message to decision makers that became theIndigenous Peoples Kyoto Water Declaration, which is presented in the final chapter of this publication.

UNESCO warmly thanks the indigenous participants, advocates and experts from the Second and ThirdWorld Water Forums whose contributions have made this publication possible. The Ministry of ForeignAffairs of the Netherlands, the Government of Japan and the Secretariat of the Second and Third WorldWater Forums generously supported the participants for the water and indigenous peoples sessions.Rutgerd Boelens of Wageningen University deserves special recognition for coordinating the major con-tribution to this volume from the WALIR (Water Law and Indigenous Rights) Project, for his valued effortsin co-organizing the Kyoto sessions and his advice as co-editor.

Respecting cultural diversity requires us to constantly learn from others and to revise our own paradigmswith a degree of humility and objectivity. We hope that this publication will provide food for thoughtand enrich the on-going debate on cultural pluralism, good governance and sustainable development.

Mounir BOUCHENAKI, Assistant Director-General for Culture, UNESCO

Walter ERDELEN, Assistant Director-General for Natural Sciences, UNESCO

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Contents

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OpeningDouglas Nakashima and Moe ChibaIntroduction 12

Jeanette Armstrong Water is Siwlkw 18

Section 1. Struggles for RecognitionEvo MoralesMessage on behalf of the Indigenous Peoples at the Third World Water Forum 22

Victoria Tauli CorpuzIndigenous Peoples and International Debates on Water: Reflections and Challenges 24

Pablo SolónCultural Diversity and Privatisation of Water 36

Leonidas IzaWater belongs to Everyone and to No One 40

Rutgerd BoelensLocal Rights and Legal Recognition: the Struggle for Indigenous Water Rights and the Cultural Politics of Participation 46

Section 2. Worldviews and Water ManagementEllen P. Dictaan Bang-OaTraditional Water Management among the Kankanaeys of Besao, Mountain Province, Philippines 64

Debabrata Roy Laifungbam and Anna PintoSanãmahi – Pãkhangba: a Living Relationship of the Meitei with Water 76

Corinne WackerThe Flow of Water and the Continuity of Culture: Water Imagery in the Landscape and Rituals of a Mountain Desert Oasis in Ladakh (Indian Himalaya) 82

Tshepo Khumbane“We All Care”: the Water for Food Movement in Rural South Africa 96

Joram/UsebA History of Water Resource Access in the Southern Kalahari: San Perspectives on the Role of Modern Technology in Dispossession and Poverty 100

Nigel Crawhall!Haa – Water: Some Reflections on Water in the Southern Kalahari 102

Santos Augusto NoratoThe Guardians of Trees and Water (E chajinel rech le che’ ruk le ja’) 106

David GroenfeldtWater Development and Spiritual Values in Western and Indigenous Societies 108

Section 3. Water Rights and National LegislationRocio Renee BustamantePluri-, Multi- Issues in the Reform Process: towards New Water Legislation in Bolivia 118

Armando Guevara-GilOfficial Water Law versus Indigenous and Peasant Rights in Peru 130

WALIRWater Law and Indigenous Rights 148

Francisco PeñaIndigenous Peoples and Water Resource Management in Mexico 150

Paulina PalaciosBetween Customs and the Establishment of Juridical Pluralism 160

Indigenous Peoples Kyoto Water Declaration 174

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drawback. First, indigenous peoples risk to beleft by the wayside despite their very real needsfor more secure and sustainable livelihoods.Second, and of greater concern, is that theimpoverishment and hardship of indigenouspeoples may in fact be exacerbated by this world-wide push to fulfil the MDGs. In response tointernational pressure, governments mayheighten their exploitation of indigenous landsand territories, thus further dispossessing indige-nous peoples of the natural resources that theyrely upon to fulfil basic needs. Large-scale hydro-electric development projects, for example, oftentarget indigenous lands because they are dis-missed as under-populated, under-utilised oreven ‘wastelands’. Similarly, indigenous commu-nities’ water sources that sustain their multipleuses and livelihood strategies are often takenaway in order to provide drinking water to urbanareas and metropoles. Thus a misguided pursuitof the MDGs could in fact worsen indigenouspeoples, matters for ever while national indica-tors of well-being may improve.

Accordingly, there is a real need to involveindigenous peoples directly in developmentprocesses, whether at local, national or globallevels. This publication on Water and IndigenousPeoples advocates a revision of internationaldevelopment efforts to fully embrace indigenouspeoples’ knowledge, values, land tenure, cus-tomary management, social arrangements andrights pertaining to water. Contributions cover awide array of approaches and issues, rangingfrom ‘worldviews’ to ‘rights-based struggles’.

Janet Armstrong, author and artist of theOkanagan Nation from western Canada, opensthe volume with a poem called “Water isSiwlkw”. Siwlkw is an Okanagan word meaningmedicine, the highest and greatest form of med-icine. As Janet herself declared when introducingher poem: “Water is a basic element of life and istherefore sacred, as sacred as life itself. We are allequal in that. Life belongs to all. Water belongsto all. We are water.”

Evo Morales, indigenous leader and recently-elected President of Bolivia, begins the publica-tion’s first section on ‘Struggles for Recognition’with a powerful statement that cuts to the heartof the water issue for many indigenous peoples.

Introduction

Douglas Nakashima and Moe ChibaLocal and Indigenous Knowledge Systems,UNESCO

Current efforts to rally international support forsustainable development, such as the MillenniumDevelopment Goals (MDGs) or the World WaterForums, have left indigenous peoples standingon the sidelines. Already at the Second WorldWater Forum held in The Hague in 2000, thereport from the session organized by UNESCO onWater and Indigenous Peoples concluded:

(…) It is clear that indigenous / tribal peoples,their unique systems of values, knowledge andpractices have been overlooked in the worldwater vision process. (…) there is an urgent needto correct the imbalance of mainstream-thinkingby actively integrating indigenous women andmen in the subsequent phases starting with theframework for action.Conference Report, Water Policy 3 (2001), S49-S51.

Yet three years later at the Third World WaterForum in Kyoto in 2003, there was little evidenceof change. The UN Permanent Forum onIndigenous Issues, at their Fourth Session held inNew York in May 2005, recently came to a similarconclusion with respect to the MDGs. They notedthe severe shortcomings of the MDGs, their tar-gets and indicators, as vehicles for addressing theneeds and aspirations of indigenous peoples.These shortcomings are multiple, and interveneat several levels.

This discouraging situation persists despiteample data making it clear that indigenous peo-ples figure prominently among the world’s mostimpoverished. In fact the Inter-Agency SupportGroup on Indigenous Issues observed thatindigenous peoples “rank at the bottom of thesocial indicators in virtually every respect” (IASG2005).

Yet the Goal of MDG 1 is to “Eradicate extremepoverty and hunger”, while the Target for Goal7 is to “Halve, by 2015, the proportion of peoplewithout sustainable access to safe drinkingwater”. The absence of indigenous peoples fromthese global development processes has a dual

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A single homogenising model that advocateswater privatisation and free trade has hijackedthe global water debate. Other visions of water– its spiritual value, its social meaning, its cus-tomary access – have been stifled. Indigenouspeoples and the poor, despite the enormity oftheir numbers and needs, have once more beenleft by the wayside.

Vicki Tauli-Corpuz, recently elected chair of theUN Permanent Forum on Indigenous Issues,argues for a human rights-based approach towater. She demonstrates that the continuingemphasis at the Second and Third World WaterForums on profit-based water supply and man-agement clashes with the growing internationalrecognition of indigenous peoples and theirrights. Indeed, even the dualistic notion of ‘pub-lic or private’ that shapes so many debates aboutwater access, remains inadequate and simplisticin the face of the diversity of indigenous watermanagement forms.

For Pablo Solon, sociologist and indigenous peo-ples’ water advocate, indigenous systems fulfilwater needs through community-level socialarrangements that are rooted in respect for theinterdependence of people and nature. Neitherpublic nor private, they are at odds with the pre-dominant Eurocentric worldview, and merit con-sideration on their own terms.

Continuing this analysis, Leonidas Iza, Presidentof the Confederation of Indigenous Nationalitiesof Ecuador, contrasts the dynamic, humanisticand spiritual notions of water shared by theAndean peoples of South America, with the nar-rowly economic vision espoused by the WorldWater Vision. Proposals to ‘resolve’ the water cri-sis proned by the latter document fail to recog-nise the real needs and aspirations of the indige-nous and rural communities of the Andes, andwould place their economic, social and culturalwell-being in jeopardy.

Rutgerd Boelens, researcher at WageningenUniversity, the Netherlands, and coordinator ofthe international program on Water Law andIndigenous Rights (WALIR), aptly draws this firstsection to a close with an analysis of how policiesthat are believed to enhance inclusion can in factreinforce exclusion. Indigenous and peasant com-

munities may be the main providers of food inAndean countries, but they are the last to benefitfrom contemporary water development policies.This is doubly ironic given the current discourseon inclusion, equality and participatory manage-ment. But as Boelens reveals, the discourse onequality has little to do with equity, and is pro-foundly averse to sustaining diversity. FollowingFanon, he unveils how the western ideology ofequality is a thinly veiled vehicle for expressingsuperiority and imposing assimilation under theguise of advancement and inclusion. The argu-ments and outcomes are not unlike those prof-fered by scientists, whose claims to cognitivesuperiority serve to justify their hegemony overother knowledge systems. They also resonatewith the discourse of neo-liberal economists forwhom free market economies remain the onlyviable instrument for poverty eradication.

The book’s second section entitled “Worldviewsand Water Management” presents a series ofcase studies that contrasts sharply with the con-ventional discourse offered by internationalorganizations, governments and the private sec-tor. For indigenous peoples, the wise manage-ment of water is not just an economic matter, butone that is first and foremost spiritual and social.Inspired by the example of her own people, theKankanaeys of Besao in the Philippines, EllenBang-oa illustrates how water is a responsibilityattended to by all members of society, both indi-vidually and collectively. This includes showingrespect to the nakinbaey spirits who inhabitwater sources and ensure their continued replen-ishment. Things associated with human or animaldeath must be kept away from water sources, aswell as grazing animals such as the water buffalowhose breath and excreta are considered partic-ularly offensive. Recognising the relationshipbetween forest and water, the iBesao alsoobserve rules and regulations governing the useand regeneration of forested lands. Finally, Bang-oa describes the complex water management sys-tem itself, demonstrating that water is truly acommunal resource with complex rights andresponsibilities ensuring its continued flow andequitable distribution.

Titling their paper after two ancestral deities ofthe Metei people of Manipur in northeast India,Roy Laifungbam and Anna Pinto outline the cen-

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tral role played by water, and its harnessingthrough an ingenious system of canals, dykes andreservoirs, in the emergence of the Metei Nation.Managing water in the Imphal Valley was morethan just an engineering tour de force. The wet-lands and waterways that were created becamechannels of exchange and communicationbetween clans and tribes, as well as betweenhuman and spirit worlds. With the demise of thissystem, due to the abolition of the labour systemthat maintained it, the entire landscape is nowunder threat from growing population pressuresand land reclamation for urban expansion.

Corinne Wacker describes the multiple ways thatwater is woven into the landscape, ritual life andday-to-day existence of the Tagmachig peoples,who live in a remote mountain oasis in theLadakh region of the Indian Himalayas. In theircosmology that blends influences from the dis-tant cultural traditions of Iran, India, Tibet andMongolia, the spiritual forces of water manifestthemselves in a multitude of forms: throughsymbols that appear in the depths of the clearglacier lake, bushes and trees growing by the vil-lage springs, lizards emerging from the earth’sdepths after winter hibernation, and the darkand wild Indus River that carves an untamedcourse below and beyond the village’s perime-ter. As testimony to the intimacy of their rela-tionship to water, the Tagmachig declare that itis by maintaining a correct attitude and continu-ing their labour in the field that people ensure acontinuing flow of water from their desertspring to nourish crops and create the oasis uponwhich their lives depend.

Tshepo Kumbane recalls the autonomy of ruralcommunities that once were able to secure thegreater part of their food and water from the land.But under the apartheid government communitiesin South Africa suffered dispossession. People weredisplaced from their original settlements, creatingdependency and despondency. The Water for FoodMovement aims to break this cycle of apathy andhelplessness by empowering people to value them-selves as well as the nurturing capacity of the landand water of their homesteads.

Joram/Useb from the Hai//om community ofNamibia offers a very different perspective onthe dynamics of water and territory. For the San,

hunter-gatherer peoples of southern Africa, itwas the lack of water in the harsh Kalahari desertthat served to defend their territory from theincursions of those who did not possess theknowledge to seek out water and survive. Butwhen borehole technology made water easilyavailable from underground aquifers, livestockherders privatised waterholes and totally dispos-sessed the San of their lands. Nigel Crawhall fur-thers our understanding of these historicalevents based upon work being done by the SouthAfrican San Institute with Khomani San. Endingon a positive note, he describes the successfulland claim granted to the Southern Kalahari Sanand the gradual return to the land of elders andyouth alike.

Santos Augusto Norato from the Totonicapancommunity of western Guatemala provides uswith an overview of the Mayan communityorganizations that guide the use and protectionof forest and water resources. Through watercommittees, the communities define and enforcerights and obligations associated with water use.They coordinate collective labour and developstrategies to deal with the problems stemmingfrom population growth, the advance of theagricultural frontier and increasing pressures onnatural resources from trans-national corpora-tions.

Closing this section on Worldviews and Water,David Groenfeldt offers a thoughtful essay onspiritual values in Western and indigenous soci-eties. He notes that mainstream debates withrespect to water confront those who see it as aneconomic good with those who argue for itsrecognition as a social good or human right.Spiritual perspectives rarely, if ever, receive seri-ous consideration. While it is not uncommon forWestern environmental NGOs to abandonrationality in favour of a crusading discourse,such fervour is reserved for emblematic speciessuch as whales, or mythical places such as tropicalforests, rather than a substance as ubiquitous aswater1. The formidable challenge for indigenouspeoples is to resist pressures, from without andfrom within, to align with the Western modeland relegate spiritual values to a distant secondplace behind economic gain.

The final section of the book addresses the issue

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of Water Rights and National Legislations. Itincludes four contributions covering cases inBolivia, Ecuador, Mexico and Peru, provided byparticipants in the comparative research andaction programme called WALIR – Water Lawand Indigenous Rights.

Efforts to recognize indigenous peoples’ owner-ship of ancestral or other territorial lands and col-lective water resources are a challenge tonational legislations, which most often affirm theexclusive territorial right of the State. In theAndean region, despite the fact that most coun-try Constitutions recognize the pluri-ethnicity oftheir societies, domestic laws related to watergenerally ignore indigenous peoples’ rights infavour of those of the State. Critics observe thatduring the neo-liberal trend of the 1990’s, Stateauthority was often directed toward furtherstrengthening local elites and to enable (nationaland international) private enterprises to exploitpeasant and indigenous owned natural resourcesthrough water rights concessions. Given thisabsence of legal protection, indigenous advo-cates are increasingly involved in the law reformprocess in search of pathways to duly recognizeforms of legal pluralism.

In Bolivia, the on-going process of reformingwater legislation has made some headway butnot without conceptual dilemma. Any effort torecognize indigenous peoples’ rights in a legalsystem is confronted with the challenge of defin-ing customary law. The fluidity of the conceptmakes it difficult for lawyers to determine rightsand legitimate rights holders. In summarizingthe debates raised during the reform process,Rocio Bustamante presents a critical analysis ofthe challenges of this legal exercise and its possi-ble adverse consequences for indigenous com-munities. Bustamante concludes that the issue oflegal pluralism raises the challenge of recognis-ing diversity as the basis of development. Thesuccess of legal pluralism thus lies in the delicatebalance between the right to equity and theright to be different.

Indigenous peoples, peasants, rural communi-ties… many terms have been used to describeAndean reality with varying connotations, eachproviding justification for diverging political pur-poses and agendas. For Armando Guevara, trans-

forming the current legislation system callsabove all for a dialogue between governmentand indigenous / rural organizations to bridgethe conceptual gap that separates the officialview of indigenous issues from local realities.Contributing to this dialogue, Guevara presents athoughtful review of key concepts such as“indigenous peoples”, “rural community”,“peasant”, “identity” and “multiculturalism”and the meanings attributed to each of theseconcepts by various stakeholders. Guevara addsthat the revision of legislative policy needs totake into account the “social life” of governmentlegislation. As he rightly observes, law is not arational and immutable system that regulatessociety impartially. On the contrary, it is a culturalphenomenon and social product that acquiresdifferent meanings according to historical andlocal context. Thus, the important question is notwhether laws have been enforced as intended bylawyers, but understanding how they have beenenacted within the indigenous / rural community.

The gap between official discourse and realityhas indeed often turned out to be dramatic.Francisco Peña offers an overview of the chal-lenge of water management in Mexico by con-trasting indigenous management with the cur-rent water regulation framework. Between 1920and 1970, the Mexican federal governmentachieved the expansion of irrigated land andincrease of electric power supply for urban areas.Behind this “success” story, however, lakes andwetlands disappeared, water sources were con-taminated and indigenous communities weremassively relocated by the creation of reservoirs.Nor have watershed councils, established by thefederal government during the 90’s to supportlocal water consumers, been successful inresponding to indigenous peoples’ concerns.Dominated by the federal administration andcorporations, the bureaucratic approach takenby these Councils compartmentalizes water man-agement in sectors and fails to take into accountthe indigenous view of water as an integral partof land and ecosystem management.

To conclude the section, Paulina Palacios profilesseveral legal texts drafted by the Ecuadorianindigenous movement, thereby providing anoverview of the indigenous normative vision.

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While customary law is specific to its locality,indigenous communities have been collectivelyexploring the possibility of drawing up a positivelaw by identifying their common values, ethicsand norms. Palacios stresses that such exercise of“codifying” customary law does not necessarilygenerate a “static law” that would betray thenature of indigenous peoples’ visions. As shedemonstrates, the five proposed laws do not dis-sociate water management from the overallquestion of land and ecosystem management.Participation in the decision-making process andprior informed consent on matters affecting theirterritory are also core elements of such laws. ForPalacios, this endeavour for common lawmakingby the indigenous community is the key toachieving a pluri-national State.

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REFERENCE LISTInter-Agency Support Group on Indigenous Issues, 2005,Technical Position paper on the Millennium DevelopmentGoals and indigenous peoples. Annex to the “Report of theInter-Agency Support Group on Indigenous Issues on its2004 session”. Permanent Forum on Indigenous Issues,Fourth Session. (E/C.19/2005/2 of 14 February 2005).

ENDNOTES (1) M. Roué (ed advisor), 2003, NGOs in the Governance ofBiodiversity, International Social Science Journal, No 178, pp 126.

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Water is Siwlkwsiwlkw she murmured is an emergence the subsequence of all else

a completeness of the design transforming to be lapped continuously

onto long pink tongues in that same breathing to be the sweet drink

coursing to become the body a welling spring eternally renewing

a sacred song of the mother vibrating outward from the first minute drop

formed of sky earth and light bursting out of the deep quietness

siwlkw is a song she breathed awakening cells toward this knowing

that you are the great River as is the abundant land it brings to carve

its banks then spread its fertile plains and deltas and open its basins

its great estuaries even to where it finally joins once again

the grandmother ocean’s vast and liquid peace as are the headwater glaciers

of the jagged mountains waiting for the yearly procession of thunder beings

bearing the dark cloud’s sweep upward as spirits released from green depths

cradling whale song dance on wind as are the cold ice springs feeding

rushing brooks and willow draped creeks meandering through teeming

wetlands to sparkling blue lakes as are the silent underground reservoirs

coursing gradually up toward roots reaching down to draw dew upward

through countless unfurling into the suns full light as much as the salmon

and sleek sturgeon sliding through strong currents even the tall straight

reeds cleaning stagnant pools equally are the marsh bogs swarming

multitudinous glistening flagella and wings in high country holding dampness

for the gradual descent through loam and luxuriant life to drink in silkw

she said is to remember this song is the way it is the storm’s way driving

new wet earth down slippery slopes to make fresh land the river’s way

heaving its full silt weight crushing solid rock the tide’s way smoothing

old plates of stone finally deciding for all the way of ice piled blue green

layer upon layer over eons sustaining this fragment of now so somewhere

on her voluptuous body the rain continues to fall in the right places

the mists unceasingly float upward to where they must and the fog forever

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Water is Siwlkw

ghosts across the land in the cool desert wind where no rain falls and each

drop is more precious than blood balancing time in the way of the silvery

hoar frost covering tundra where iridescent ice tinkles under the bellies of

caribou her song is the sky’s way holding the gossamer filaments

of rainbow together guarding the silent drift of perfect white flakes where

the moose stop momentarily to look upward her song in the forest insuring

a leaf shaped just so captures each glistening droplet to celebrate

the vast miles of liquid pumping through the veins of the lion parting

undulating savannah grasses lifting great Condor wings soaring last circles

in the mountains of Chile accumulating in the places it chooses to pool

in subterranean caverns moving through porous stone seeping and wetting

sand deep inside of her caressing thunder eggs and smooth

pebbles at her heart

This song is the way

Jeannette C. Armstrong, February 2003

Jeannette C. Armstrong is a Canadian author and artist. She is Traditional Science Council Memberof the Okanagan Nation, international observer to the Continental Coordinating Commission ofIndigenous Peoples and Organizations, and executive director of the En’owkin Internationalschool of Writing and Arts.

[email protected]

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Ladies and gentlemen, brothers and sisters of water,

I would like to congratulate the organizers of this thematic area for having included indigenousissues in this World Water Forum.

According to the United Nations, indigenous peoples have suffered from a situation ofcolonization or invasion and currently have a non-dominant status in society. It is true thatindigenous peoples have been and are continuing to be subjected to colonization, invasion andexile within our own territories. It is also true that we are not dominant in wielding political power.However, in social weight, in number, I assure you that the groups that are being colonized andsubjugated in our own countries comprise over half the world population.

There are two sessions on indigenous issues, among more than 350 sessions in the World WaterForum. And how many indigenous peoples are there? Do you suppose that we are actually onlyhalf of one percent of the world population?

World-wide, there are over one billion persons with insufficient or poor quality water. Most of thatbillion are indigenous. Therefore, I feel that the first action that the organizers of the Third WorldWater Forum should take is to recognize that indigenous peoples, small farmers and the poor arenot sufficiently represented here. We are not going to solve water problems without involving thetrue stakeholders. Similarly, how many societal, rural and indigenous organizations are on theWorld Water Council? None. So, if we are going to talk about actions and not just speeches, thatwill have to change.

I don’t know how many of you have read the World Water Vision document approved in TheHague at the second World Water Forum. Well, who approved that document? That vision? Thesocial movements, the participants in the Forum? Or the consultants hired by the World WaterCouncil? We have to abandon the practice of discussing among ourselves, and then havingconsultants and experts draft the final reports and conclusions.

Water is a human right. No one may be deprived of water. If we agree with this precept, why aremining, logging, electrical and municipal companies plundering the water resources belonging tothe rural and indigenous communities throughout this planet? This Forum has to approve a callto the major trans-nationals, companies and mega-farms, to stop looting water from theindigenous peoples. But that is not enough; it is necessary to take advantage of the time duringthese two sessions on indigenous rights, to discuss how we are going to concretely and effectively

Message on behalf of the Indigenous Peoples at the Third World Water Forum

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support indigenous movements in defending their water, fighting against pollution andpreventing privatisation of water.

We indigenous peoples do not want to be research subjects, but fellow combatants in the struggleagainst the privatisation and commoditisation of water.

Here, we are all in favour of cultural diversity and the preservation of all forms of watermanagement. But what do we see in practice? There is one model – of privatisation andgeneralization – that is spreading and pushing out the others. It is imposing itself because loans forthe water sector granted by the IMF and the World Bank stipulate that promoting privatisation ofthe water sector is a necessary condition. So we have to speak clearly: the IMF and the World Bankare against cultural diversity, and are opposing indigenous rights.

The other great danger is that water is being incorporated into free trade treaties. Europe has madea proposal to open its agricultural market to Latin America if, in exchange, we will open up ourpublic water supply services to private European investment. This is also a way of putting an endto cultural diversity.

The World Water Vision from The Hague says that, if we fail to accept privatisation, there will notbe the necessary investment to resolve water problems. Excuse me for saying so, but that is a lie.In governments, in the public sector, there is enough money to cover all water needs in today’sworld and tomorrow’s as well. All we have to do is get it out of military budgets and put it intowater budgets. Stop spending on war and death and begin investing in water and life.

Evo Morales is the President of Bolivia. At the time of the Third World Water Forum, he was theopposition leader of the Bolivian Congress and President of the Peasant Federation of the Tropics.As an indigenous leader, he is an active defender of indigenous rights, and has served as keynotespeaker at a number of world events including the World Social Forum of Porto Alegre.

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When the water industry and its supporters run the World Water Forums,there is a clear disconnect with the assertion of the UN Human Rightsbodies, indigenous peoples and civil society that water is a basic humanright. Neither indigenous peoples, nor those who are suffering mostfrom the water crisis are represented in the World Water Council or theGlobal Water Partnership, the two organizations responsible for theSecond and Third World Water Forums.

Victoria Tauli Corpuz(1) is Chair of the UN Permanent Forum on Indigenous Issues, as well as a researcherand activist. She is the founder and Executive Director of Tebtebba Foundation and is strongly involvedin the field of international indigenous issues, particularly relating to natural resources.

[email protected]

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Introduction

A series of reports came out of the Second andThird World Water Forums. They examined thenature of the global water crisis, drew up visionsfor the future of the world’s water, and designed aframework for action on how to achieve this vision.The World Water Council and the Global WaterPartnership were mainly responsible for drawingup these reports. During the forums these bodiesand their reports drew much criticism, mainly fromcivil society participants, on the grounds that theymainly represented the views and interests of richcountries and the water industry. A small group ofindigenous peoples took part in both the forumsand also helped draw up the reports. We made ourown comments and observations and some ofthese were captured in our statement, theIndigenous Peoples’ Kyoto Declaration on Water.

This paper is an attempt to elaborate further onthe views presented in our statement. We cannot separate our efforts in asserting our rights towater from our general struggle to have ourfundamental rights as distinct peoples recog-nized. Our commitments at the community levelup to the national and global levels and back tothe grassroots are all interconnected. So I will citesome examples of the nature of the issues weface in relation to water, and our responses tothese issues. Emphasis will be on the analysis ofoutcomes of these processes.

Gains for indigenous peoplesin the international arena

Through many years of involvement with variousUnited Nations bodies, agencies, and pro-grammes, including the world conferences in the1990’s, we indigenous peoples have managed tobring our issues to the table. Our involvementwith the UN led to the emergence of hard andsoft laws that acknowledged our basic rights toour ancestral territories and resources, includingwater. Some of these laws were:

• ILO Convention 169• Chapters 18 and 26 of Agenda 21 • Article 8 (j) and Article 10 (c) of the

Convention on Biological Diversity • UN Draft Declaration on the Rights ofIndigenous Peoples

The ILO Convention 169(2), which is the only existinglegally-binding instrument on IndigenousPeoples up to the present, recognized our terri-torial rights, particularly in its Article 13 (1),Article 13 (2) and Article 14(3).

Chapter 18 of Agenda 21, on the protection offreshwater resources, recommended the fullpublic participation of indigenous people in integ-rated water resource management(4).

Article 8 paragraph (j) of the Convention onBiological Diversity refers to the need to respect,preserve and maintain the knowledge, innova-tions and practices of indigenous peoples on theconservation and sustainable use of biodiversity.

The Draft Declaration on the Rights of IndigenousPeoples, which was adopted by the Sub-Commission on the Protection and Prevention ofDiscrimination in l994, came about through theactive collaboration of indigenous peoples andexperts of the UN Working Group of IndigenousPopulations. What makes this Draft unique in thehistory of the UN’s efforts to develop standards isthat it was created with the active participation ofthe subjects of those rights. It also acknowledgedand developed the concept of collective rights,whereas existing human rights instruments referto individual rights only. This Draft explicitly re-cognizes the rights of indigenous peoples to theirwaters, as seen in articles 25 and 26(5).

While the Draft Declaration remains a draft up tothe present, it is already serving as the frame-work for indigenous peoples’ rights. TheIndigenous Peoples’ Rights Act (1997) of thePhilippines used it as a framework when thenational law was being drafted. This law cameinto being because of the highly organized ad-vocacy and lobbying of indigenous peoples inthat country. This is a clear case where the gainsachieved in the UN were used to influence thestruggle at the national level(6).

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International processesdealing with water and participation ofindigenous peoples

Shortly before the Earth Summit (United NationsConference on Environment and Development)in 1992, a series of events concerned with watertook place. The Brundtland Commission (TheWorld Commission on Environment andDevelopment, 1987) identified water as a keyglobal environmental concern in its report OurCommon Future. Then a Water and EnvironmentConference was held in Dublin in 1992. This con-ference established what are now known as theFour Dublin principles(7):

• Principle 1: “Freshwater is a finite and vul-nerable resource, essential to sustain life,development and the environment”; • Principle 2: “Water development and man-agement should be based on a participatoryapproach, involving users, planners and policy-makers at all levels”; • Principle 3: “Women play a central part inthe provision, management and safeguard-ing of water”; • Principle 4: “Water has an economic valuein all its competing uses and should be recog-nized as an economic good”.

As early as 1992 water was already beginning tobe considered as an economic good. The impor-tance of securing freshwater resources wasemphasized at the Earth Summit, which resultedin Chapter 18 of Agenda 21. At the 2nd Session ofthe UN Commission on Sustainable Development(UN-CSD) in 1994, the rapid deterioration ofwater quality and quantity in many statesemerged as a serious concern. A recommend-ation to have a Comprehensive Assessment ofFreshwater Resources of the World was agreedto, and this was subsequently prepared by thejoint efforts of UN agencies and programmes(8).The assessment was presented during the 1997 session of the UN-CSD, which was a SpecialSession of the UN General Assembly, five yearsafter Rio.

Another recent process was the WorldCommission on Dams (WCD). Joji Carino ofTebtebba was chosen to be one of the membersof the Commission in order to provide a voice forindigenous peoples. She played a major role inensuring that the experiences and recommend-ations of indigenous peoples were integrated intothe final report of the WCD. Tebtebba was amongthe co-organizers of the WCD’s joint consultationon Dams, Indigenous Peoples and EthnicMinorities, held in Geneva from 31 July to 1 August1999. The recognition by the WCD of the rights-based approach to development, which includesthe right to free, prior and informed consent is akey recommendation which enjoys strong sup-port from indigenous peoples.

This requirement gives indigenous and tribalcommunities the power to consent to projectsand to negotiate the conditions under whichthey can proceed. The effective implementationof this practice marks a significant step forwardin allowing indigenous peoples to assert theirright to their territories – which includes theirwaters –, ensuring their genuine participation indecision-making processes and securing theirlong-term benefits.

No single UN body or program is responsible forwater issues. This may be one reason why most ofthe international processes on water which cameafter the Earth Summit were not organized bythe UN and did not fall under the leadership ofthe UN, even if various UN bodies played activeroles. However, this situation further reinforcedthe view that the role of the State is systematic-ally being undermined in favour of the market.There is a fear that, if water ends up in the con-trol of the private sector, and if the role of gov-ernments is grossly undermined in terms ofensuring respect for the right to water, then theweak and the poor will suffer. Decisions on howwater should be developed are being shifted toglobal bodies, like the World Trade Organizationor the World Bank. Clearly, there is a need for amechanism that ensures a balance between theroles of the State, the market and local commun-ities in water development.

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Collaborative mechanisms and processes thatemerged, such as the Global Water Partnership,the World Water Council, the Water Supply andCollaborative Council, and the three WorldWater Forums, among others, all involved multi-ple stakeholders. But, as mentioned earlier, thelead actors were global water corporations, theWorld Bank, donor agencies, professional assoc-iations dealing with water and sanitation, acad-emia, research institutions and think-tanks.

Neither indigenous peoples, nor those who aresuffering most from the water crisis, are repres-ented in the World Water Council(9) or the GlobalWater Partnership(10), the two organizationsresponsible for the Second and Third Word WaterForums. Intergovernmental bodies only play asupporting role, with the exception of the WorldBank and the IMF. An important issue to consideris how the participatory processes are decided. Atthe Second World Water Forum, the World WaterCommission was chaired by Ismail Serageldin,Vice President of the World Bank. MichelCamdessus, the former IMF Director, headed theWorld Water Panel on Financing Infrastructure,which produced the Financing for All report. Withall due respect to these personalities, it is hard toimagine that they can be honest brokers, becausethey need to protect their own institutions. Thismight need to be clarified before the World Bankand the IMF can be free from suspicion of vestedinterest.

Indigenous peoples wanted to take part in thesecollaborative processes, but we did not haveenough advance information, nor were thefinancial resources available to allow our partici-pation. In the 1990s, civil society actors, likeNGOs, indigenous peoples, and women becameactive players in a series of UN world conferences,and limited resources were made available fortheir participation in the follow-up processes.But with the semi-privatisation of processesrelated to water, the situation has changed. Nowindigenous peoples and other civil society groupshave to do their own fund-raising to be able toparticipate.

At the Second World Water Forum (2000) in theHague, a small group of indigenous peopleswere able to participate through a thematicsession organized by UNESCO on Water and

Indigenous Peoples. The indigenous peoples andtheir representatives (less than 10 in number)participating in this session produced a reportthat underlined the marginalisation of indige-nous peoples within the World Water Forumprocess, and called for a more prominent role inthe future.

Indigenous peoples were more strongly repre-sented at the Third World Water Forum througha partnership with UNESCO, other indigenouspeoples’ organizations and non-governmentalorganizations, the WALIR (Water, Law andIndigenous Rights) Program of the University ofWageningen and the Secretariat of the Forum. Atwo-day indigenous peoples’ preparatory meet-ing was held, where we discussed in more depthour water issues, and linked these with theagenda and program of the Water Forum. TheIndigenous Peoples’ Kyoto Water Declarationemerged from this process.

The Second World WaterForum and its outcomes

The Second World Water Forum had an over-whelming presence of representatives of thewater industry and so-called water specialists,and very limited participation from indigenouspeoples. The documents arising from this forumare clearly expressions of the views and interestsof the private sector. The outcomes included a‘Ministerial Declaration’ with no official status,the ‘Vision for Water in the 21st Century‘ and a’Framework for Action‘ to implement the Vision.The predominant view which underpins thesedocuments is that water is an economic good,and the failure to place a price on water thatreflects its economic value in its various alterna-tive uses encourages wasteful and environment-ally damaging use and results in its misallocation.Water is regarded as a commodity that can betraded and sold.

This view is at odds with the way indigenouspeoples regard and relate to water. Our waters,territories and lands are the fundamental physi-cal, cultural and spiritual basis for our existence

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and our identities as distinct peoples. Water forus is sacred; it belongs to nature and cannot beowned or turned into a commodity by any indiv-idual, state or corporation. Our collectiveresponsibility and obligation is to ensure theprotection, availability and purity of water forthe present and future generations and for therest of creation(11).

Failure to look into the underlyingcauses of the water crisisThe World Water Vision describes the water crisisin these terms:

• one out of five people does not have accessto safe and affordable drinking water• half of the world’s wetlands are destroyed • water services are heavily subsidized by gov-ernments • decrease of groundwater tables due tounregulated access, affordable small pumpsand subsidized electricity and diesel oil • the management of water on a sector-by-sector basis and highly fragmented institutions.

These are, indeed, some of the problems. But thereport lacks a historical, in-depth analysis of theunderlying causes of this water crisis. It shouldhave looked more comprehensively into the sig-nificant social, political, economic, ecological,cultural and even spiritual roots of the crisis. It isnot enough just to look into the technical, man-agerial and economic aspects, and not analysethe frameworks used by the think-tanks anddonor agencies. There are precedents in otherinter-governmental processes, where seriousresearch was the first step to be taken. The UNForum on Forests, for example, carried out astudy on the underlying causes of deforestation.Other multi-stakeholder processes like the WorldCommission on Dams also presented a compre-hensive report(12) on the history of dam buildingand the role played by institutions like the WorldBank and the dam-builders in designing policiesand programs.

The documents failed to refer to any of the exper-iences of indigenous peoples with water,whether historical or recent. Nor did the docu-ments use the assessment and recommendationsof the World Commission on Dams report, whichreflected the situation faced by indigenous peo-

ples and other sectors directly affected by damprojects. The prevailing view of water as an inte-gral part of the basket of rights, which all peo-ples should enjoy, has been changed by the mar-ket-centred paradigm promoted by the WorldBank, which regards water mainly as an eco-nomic good. This underpins the proposals for fullcost recovery of economic costs and economicefficiency. A paradigm that puts a premium onthe role of market forces will not attach muchimportance to the role and participation ofindigenous peoples and local communities whenwater policies and programs are designed.

There are many reasons for the degradation anddisappearance of freshwater resources. The mostcommon, however, are deforestation, extractiveindustries, agro-chemical-based intensive agricul-ture, and the destruction of wetlands. Largelybecause of loans given to the timber industry,around five million ha. of primary rainforests aredegraded annually(13). Foreign debt is another keyreason why governments in the Third Worldresort to massive deforestation, conversion tocash crop production or plantations, extraction ofminerals, etc. They need to export raw materialsand agriculture products so they can generateforeign exchange to service their debts.Indigenous peoples are among those who havesuffered most from this kind of developmentmodel, as their territories are often exploited.

Intensive irrigation and the massive use of agro-chemicals that accompanied the GreenRevolution not only resulted in over-extraction ofgroundwater and salination of agricultural soil.They also led to the pollution of groundwaterwith persistent organic pollutants. The extractiveindustries, which also enjoy loans from donoragencies and private banks, have contributed sig-nificantly not only to the pollution of waters, butalso to the destruction of groundwater aquifers.Many indigenous communities have lost theirwater sources through underground mineralextraction and open-pit mining.

The World Wide Fund for Nature, in its critique ofthe Second World Water Forum, also cited that thefailure to analyse the underlying causes of thewater crisis has “(…) led to a failure to recognizethat it is investment in a healthy environmentthat will ensure provision of reliable supplies of

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clean water for people and nature. (…) It failedto adequately consider how to maintain theother values of health freshwater ecosystems,such as the fisheries that sustain millions of theworld’s poor(14)”.

Those who wrote the Water Vision, at least,should have analysed the roles played by theWorld Bank and other donors in shaping govern-ment policies and programs in the Third World(15).If the policies on water and also on irrigation,energy, agriculture, and forestry had been exam-ined in greater depth, their impacts on waterscarcity and water pollution would have beenestablished. If the UN, the World Bank, the donoragencies, academia, and the water specialists hadundertaken a more comprehensive analysis ofthe root causes, the Vision and Framework wouldhave come out differently.

Water as an economic good and ahuman need, not a human rightAnother criticism against the Forum reports is thereduction of water to an economic good, and thestrong push for its privatisation and full costrecovery. The right to water, which includesaccess and control over water resources, is one ofthe most basic demands of indigenous peoples.Water is an integral part of our ancestral territor-ies and resources, and when we claim our right toour ancestral territories, this includes our right tothe water found there. The stories of our strug-gles to assert these rights, from colonization tothe present day, are replete with cases wherewater was the central issue. Colonizers and gov-ernments have used the diversion of water awayfrom our territories as a tool to push indigenouspeoples out. In l993 I participated in the Peoples’International Tribunal in Hawaii, which lookedinto the situation of the Native Hawaiian peo-ples, the Kanaka Maoli, 100 years after they wereforcibly annexed to the United States. Severaltestimonies presented by the elderly told howthe US government diverted waters away fromtheir traditional communities.

For us, the Igorot peoples of the CordilleraRegion in Northern Philippines, the damming ofour rivers was the key issue that pushed us tofight against the Marcos dictatorship and theWorld Bank, and finally to go to the United

Nations. In the mid-1970s, the World Bank gaveloans to the Marcos government for the ChicoRiver Hydroelectric Dam Project. The whole coun-try was under martial rule at the time, and thegovernment thought they could decide how ourlands and waters were to be used, without ourconsent. Gross violations of our civil and politicalrights as well as economic, cultural and socialrights became daily occurrences and a resistancemovement was launched to stop the project.

In l982, when the UN Working Group onIndigenous Populations came into being, a repre-sentative of the Cordillera participated and pre-sented this case. It won international supportand, by the mid-80s the World Bank decided tocancel the project. This battle was won but notwithout heavy sacrifices, displaced communities,and divisions between families, clans and tribes.

Many of the sacred sites of indigenous peoples allover the world are water bodies. And these peopleswill lay down their lives to ensure that these sitesremain intact and common. Where I live there isa lake, which is the main source of water for sev-eral villages. It is considered sacred, so nobody isallowed to build a house or plough a field nearthe lake. Since time immemorial the iBesao(16)

have been performing rituals to appease thespirit protectors of the lake. Recently, when somepeople from the nearby town tried to claim partof the land around the lake as their private prop-erty, more than 700 people from seven villages ofBesao went to dismantle the fences and warn offthe town folk.

Those who argue that water is an economic goodpropose to use market forces to establish the‘right’ price for what they say is an increasinglyscarce resource. But for indigenous peoples,water is a basic human right, and is essential foran adequate and decent standard of living,according to the International Covenant OnEconomic, Social and Cultural Rights (ICESCR)(17).

International human rights treaties negotiatedafter the ICESCR clearly guaranteed the right towater, with groups historically subject to humanrights discrimination (i.e. women and children)specifically protected(18).

But the concept of water as a human right dis-

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appeared from the outcomes of the WaterForum. And the Ministerial Declaration, even if itwas unofficial, agreed that water was a basicneed, not a human right(19). The same was true atthe Third Forum. If water is a human right then itis the responsibility of the State to ensure thatthis right is respected and promoted. But if it is ahuman need, those who can afford to pay for itcan enjoy it.

Framework for Action and world wateractionsThe Framework for Action, developed by theGlobal Water Partnership, set out a strategy forthe realization of the World Water Vision by 2025and prioritised actions to achieve this. Indigenouspeoples were not involved in any of the processesassociated with this document. And some of therecommendations contained in the Frameworkcan be detrimental to indigenous peoples. Forexample, the report identifies agriculture as thelargest water user and recommends introducingpayment for water services. However, when gov-ernmental authorities set prices, poor farmersand indigenous peoples who are mainly engagedin subsistence agriculture in the developingworld, can hardly afford to pay irrigation fees orare not interested in doing so especially when thequality of these services is poor and the revenuesare not invested to benefit their own systems.They would prefer to continue with traditional,rain-fed agriculture. Pricing of water services atfull cost will further marginalize the poor andindigenous peoples. This is a part of the concernexpressed in our Declaration in Kyoto.

Another proposal is the promotion of betteragronomic practices, such as improving crop vari-eties. This could involve the use of biotechnologyto develop more drought-resistant varieties, orvarieties that yield more mass per unit of water,or to switch to crops that consume less water. Thisseemingly sensitive proposal can nonethelessamount to asking us to stop planting and eatingtraditional crop while entailing extra economicburden for the purchase of new variety seeds(20).In Asia, for instance, rice is a ritual and traditionalcrop for many indigenous peoples and manycommunities still practice seed-saving of tradi-tional varieties. The use of genetically-alteredcrops is alarming, especially when it is driven by a

market-centric mindset, blind to social and cul-tural implications, as well as potential ecologicaland health hazards(21).

Technological solutions to solve the water crisisare also problematic, when they are associatedwith political decisions to set a price on water.Proposals for more investment in an engineer-ing-led, business-as-usual approach, such asbuilding more dams, pipes, irrigation systemsand toilets appear in most of the recommenda-tions for action. But as our indigenous colleaguefrom the Niger Delta said, although theyreceived the pipes, they cannot pay for the waterthat comes out of them(22).

The concept of public-private partnerships(PPPs) is one of the key solutions proposed inthe World Water Actions report. Out of the 200partnerships identified in the report, there are afew good examples, which involved womenand which tried to implement an ecosystemsapproach. But on the whole, these partnershipsgive lead roles to private, transnational andnational water corporations. And if the watertransnationals fail to earn the profits they haveprojected, they can just sell the company back tothe government, as happened in the Philippines,with the Suez company(23).

The Third World Water Forum –governance and participation

The Third World Water Forum, according to Mr.Ryutaro Hashimoto, Former Prime Minister ofJapan and Chairman of the National SteeringCommittee of the 3rd World Water Forum, will“(…) play a critical role in solving water issues inthe 21st century (…)” The forum’s organizers,however, still consist of a consortium of govern-ment, business and multilateral developmentorganizations, thus limiting what it can achieve.Representatives of key stakeholders such asindigenous peoples, local communities, environ-mental and development NGOs, social move-ments, small farmers and grassroots women’sgroups, among others, are not centrally involvedin the processes of this forum.

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Once again, I would like to point out that the twokey organizations established in l996, the WorldWater Council (WWC) and the Global WaterPartnership (GWP) do not have representativesfrom indigenous peoples and local communities.The only reason we were able to participate in thelast two forums was through the intervention ofUnited Nations institutions, academia, NGOs andindividuals involved in these water processes.

The Third World Water Forum is being describedas the world’s biggest international water con-ference, as 12,000 scientists, ministers, represent-atives of non-governmental organizations, privatecompanies and international institutions particip-ated. Around 100 ministers attended. But, it cannot be said that it met its goal of delivering con-crete plans to tackle water-related problems,such as achieving the UN’s goals of halving theproportion of people without access to safedrinking water and sanitation by 2015.

Even ministers who attended were highly criticalof the results, including their own MinisterialDeclaration. The main criticism was that, whilewater was acknowledged as an urgent globalissue, there were no concrete, financial pledges toachieve the MDG goal on water and sanitation.

The industrialized countries, as usual, did notpromise any significant funding. Instead, theWorld Panel on Financing Global WaterInfrastructure emphasized private investment infinancing water and sanitation projects. Thereport was criticized for putting profit beforehuman needs and human rights. Its call forUS$100 billion a year in order to meet UN targetson water was also questioned. This did not takeinto account the ecosystems framework andignored community-based projects that ensuredwater availability at a very low cost(24). Because ofmassive protests by civil society participantsagainst this report and its proposals, the finaldocument of the forum merely mentioned it.

When World Water Forums are mainly designedand run by the water industry and its supporters,like the World Bank and the IMF as well as so-called water specialists and experts, there is aclear disconnect with the assertion of the UNHuman Rights bodies, indigenous peoples andcivil society that water is a basic human right. This

raises the issue of governance in relation towater. The United Nations may need to assesswhether it should play a leading role and notabdicate its responsibility to the private sector.

Ways forwardDefending one’s ancestral lands and watersdemands heavy sacrifices on the part of indige-nous peoples. This is especially so in situationswhere space for serious dialogues is virtuallyabsent, and where force and deception are usedby those in power to quell any resistance to theirprojects. We are constantly seeking ways toenable the modern world to accept and under-stand our world views, cultures and lifestyles. It isin this context that we see the value of bodieslike the United Nations and processes like theWorld Water Forum. The UN has provided theopportunity for us to work more constructivelywith governments, and to jointly develop inter-national standards for the protection of ourrights. These are also opportunities to present ourviews and recommendations on other concerns,like biodiversity, water, and forests.

During the two last World Water Forums, althoughthey were heavily dominated by the water indus-try, donor community and water specialists, wemanaged to carve out a few spaces where wecould discuss and present our own concerns. Wefirmly believe that these discussion forumsshould be more open to the diversity of viewsand proposals on how the water crisis can beresolved. It should be made easier for us to part-icipate more fully, not just because we need anopportunity to present our issues, but because webelieve that the rest of the world will gain signif-icantly from our experiences and perspectives.

In the light of our experiences in engaging withthe recent debates on water and our analysis ofthe outcomes, we reiterate the recommend-ations put forward in our declarations on waterand in the Indigenous Peoples’ Discussion PaperWater, Human Settlements and Sanitation pre-sented at the 12th Session of the Commission onSustainable Development(25). I will conclude thispaper by quoting one of its messages:

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“Indigenous peoples have the right to self-determ-ination. By virtue of that right Indigenous peopleshave the right to freely exercise full authorityand control of their natural resources includingwater. Such rights cover both water quantity andquality and extend to water as part of a healthyenvironment and to its cultural and spiritual values.Indigenous interests and rights must berespected by international agreements on tradeand investment, and all plans for new water usesand allocations.

Indigenous peoples’ interests on water and custom-ary uses must be recognized by governments,ensuring that Indigenous rights are enshrined innational legislation and policy.

Self-determination includes the practice of ourcultural and spiritual relationships with water,and the exercise of authority to govern, use, man-age, regulate, recover, conserve, enhance andrenew their water sources, without interference.

The promotion of respect and observance ofIndigenous peoples’ rights and fundamental free-doms, in particular the right of self-determinationand the free use and control of their lands and ter-ritories, is necessary for the use and conservationof water and of water sources and resources.

International law recognizes the self-determin-ing rights of Indigenous peoples to :

• Own, control and manage their traditionalterritories, lands and natural resources;• Exercise their customary law;• Represent themselves through their owninstitutions;• Require free prior and informed consent todevelopments on their land;• Control and share the benefits of the use oftheir traditional knowledge.

Governments should support the immediateadoption of the UN Draft Declaration on theRights of Indigenous Peoples that will helpensure the recognition and protection ofIndigenous peoples’ rights.”

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ENDNOTES (1) This is a perspective from Tebtebba, an indigenouspeoples’ organization from the developing world which hasbeen engaged in some international events around waterand in most UN processes which deal with indigenouspeoples’ rights.

(2) As of October 2002, the following 16 states had ratifiedILO 169: Mexico, Norway, Costa Rica, Colombia, Denmark,Ecuador, Fiji, Guatemala, The Netherlands, Dominica, Peru,Bolivia, Honduras, Venezuela, Argentina and Paraguay.Austria and Brazil have ratified, but have yet to transmittheir instruments of ratification to the ILO. The followingstates have submitted it to their national legislatures forratification or are discussing ratification: Chile, ThePhilippines, Finland, El Salvador, Russian Federation, Panama,and Sri Lanka. Germany has adopted ILO 169 as the basis forits overseas development aid and the Asian DevelopmentBank and the UNDP have incorporated some of its substanceinto their policies on Indigenous peoples. See, for instance,Asian Development Bank, The Bank’s Policy.

(3) Article 13(1) requires that governments recognize andrespect the special spiritual, cultural and economicrelationship that indigenous peoples have with their landsand territories and especially “the collective aspects of thisrelationship”. Article 13) defines the term ‘lands’ to include“the concept of territories, which covers the total

environment of the areas which the peoples concernedoccupy or otherwise use”. Article 14 requires thatindigenous peoples’ collective “rights of ownership andpossession… over the lands which they traditionally occupyshall be recognized” and that states “shall take steps asnecessary to identify” these lands and to “guaranteeeffective protection of rights of ownership and possession”.

(4) This is in paragraph 18.9 of Article 18.

(5) Article 25 states: “Indigenous peoples have the right tomaintain and strengthen their distinctive spiritual andmaterial relationship with the lands, territories, waters andcoastal seas and other resources which they havetraditionally owned or otherwise occupied or used, and touphold their responsibilities to future generations in thisregard”. Article 26 states: “Indigenous peoples have theright to own, develop, control and use the lands andterritories, including the total environment of the lands, air,waters, coastal seas, sea-ice, flora and fauna and otherresources which they have traditionally owned or otherwiseoccupied or used. This includes the right to the fullrecognition of their laws, traditions and customs, land-tenuresystems and institutions for the development andmanagement of resources, and the right to effectivemeasures by States to prevent any interference with,alienation of or encroachment upon these rights”.Draft Declaration on the Rights of Indigenous Peoples, UNDoc. E/CN.4/Sub.2/1994/2/Add.1 (1994).

(6) SEC. 7. Rights to Ancestral Domains of IndigenousPeoples’ Rights Act (1997) recognizes Indigenous peoplesright to water and states: “The rights of ownership andpossession of ICCs/IPs to their ancestral domains shall berecognized and protected. Such rights shall include: Right of Ownership, The right to claim ownership overlands, bodies of water traditionally and actually occupied byICCs/IPs, sacred places, traditional hunting and fishinggrounds, and all improvements made by them at any timewithin the domains; …”Indigenous Peoples’ Rights Act (1997) can be downloadedfrom www.ncip.gov.ph.

(7) UNESCO-WWAP (2000), Water for People, Water for Life,Executive Summary, p.4.

(8) These were UNEP, UNDP, UNESCO, WHO and FAO.

(9) The World Water Council, an international water policythink tank, was established as an NGO in 1996 through theinitiative of water specialists, the academic community andinternational organizations. It has 50 State governments asits members.

(10) The Global Water Partnership is an organization createdwith the joint support of a number of international fundingorganizations, which a mandate to support integratedwater resource management in developing countries. Theorganization gets funds from donor agencies of countrieslike Canada, United Kingdom, Denmark, Netherlands,Switzerland, Norway, among others, and the World Bank,Ford Foundation and even the UNDP.

(11) Our traditional practices are dynamically regulatedsystems. They are based on natural and spiritual laws,ensuring sustainable use through traditional resource

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conservation. Long-tenured and place-based traditionalknowledge of the environment is extremely valuable, andhas been proven to be valid and effective. IndigenousPeoples’ Kyoto Water Declaration, www.tebtebba.org.

(12) This report stated that large dams affect critical, life-sustaining resources, such as land fisheries and thequality and allocation of freshwater, an increasingly scarceand coveted resource. This report further acknowledgedthat despite the chronic underperformance of large dams inthe areas of energy production, flood control, irrigation andoverall economic efficiency, there is still a strong biastowards building large dams. The social and environmentalcosts of large dams, which includes large-scale displacementof communities, inadequate compensation and resettlementplans, loss and destruction of livelihoods, permanenttransformation and loss of forests, farmlands, floodplains,pastures, wetlands, and biodiversity, among others, are alsowell-documented. Dams and Development: A Report of theWorld Commission on Dams (2000),p.20.

(13) This was the estimate of the World RainforestMovement (WRM) in 1990 in their report on RainforestDestruction (1990). p.51.

(14) WWF Information Documents, What is the World WaterForum, 2003.

(15) The World Bank, IMF and other multilateral andregional banks have the capacity to persuade or forcegovernments to comply with privatisation schemes.Countries under structural adjustment programmes have toadhere to conditions such as ‘public sector reform’ if theywish to obtain loans for infrastructure development. Thismeans privatisation of state-owned companies. According toFriends of the Earth, the poorest countries, likeMozambique, Benin, Niger, Rwanda, Honduras, Yemen,Tanzania, Cameroon and Kenya, were forced to privatisetheir water supply under pressure from the IMF and theWorld Bank. These countries privatised as a condition forreceiving credits from the IMF’s new Poverty Reduction andGrowth Facility. Water privatisation leads to further poverty,as families can no longer afford to pay for water. IMF andWB conditions were imposed in Ghana in May 2001 and as aresult there was a 95 percent hike in water fees. Friends ofthe Earth, International Secretariat (2003), Water Justice forAll: global and local resistance to the control andcommodification of water. Issue 102, Amsterdam. p.5.

(16) iBesao means the people of Besao.

(17) The International Covenant of Economic, Social andCultural Rights (ICESCR) does not contain an expressguarantee of a human right to water. However, articles 11and 12 of the ICESCR provide an implicit guarantee. Article11 outlines a number of rights connected with therealization of the right to an adequate standard of living“including adequate food, clothing and housing”. Althoughthe right to water is not expressed in this list, it clearly fallswithin the category of rights essential to an adequatestandard of living. The right to water is also linked with theright to health, enshrined in article 12 of the ICESCR. TheCommittee on Economic, Social and Cultural Rights, which isresponsible for monitoring state compliance with theICESCR, endorses this view. In a recent decision it stated that

“the human right to water is indispensable for leading a lifein human dignity. It is a prerequisite for the realisation ofother human rights”.

(18) For example, article 24 of the Convention on theElimination of All Forms of Discrimination Against Women(CEDAW) requires states to ensure all women “enjoyadequate living conditions, particularly in relation to …water supply” (see para 2(c)). Article 24 of the Conventionon the Rights of the Child stipulates that states must combatdisease and malnutrition “through the provision ofadequate nutritious foods and clean drinking water” (seepara 2). Thus, it can be said that the right to water is wellestablished under international law.

(19) For Maude Barlow and Tony Clarke: “The story of whathappened at the World Water Forum is the story of theseparation of water from the land and from ‘the commons’ towhich it belongs. It is also a denial of historic benchmarks fordemocracy enshrined halfway through the 20th century (…)the Universal Declaration of Human Rights and itsaccompanying International Covenants on Economic, Socialand Cultural Rights and on Civil and Political Rights wereadopted as the cornerstones of the United Nations (…) Yet atthe dawn of the 21st century, something as fundamental aswater is no longer recognized as a universal right by thedominant economic and political elites. Being designated as aneed, water has been subjected to the supply and demandforces of the global marketplace, where the distribution ofresources is determined on the basis of the ability to pay”.Maude Barlow and Tony Clarke, Blue Gold, 2002, p. 80.

(20) Improving plant varieties through biotechnology posesactual and potential ecological, social and health problems.The genetic engineering and planting of seeds and trees inpublicly-funded Consultative Group on InternationalAgricultural Research (CGIAR) bodies and privatelaboratories are creating problems like the geneticcontamination of traditional species. This is precisely thereason why the precautionary principle was enshrined in theRio Declaration in l992 and why the Biosafety Protocol wasformulated.

(21) We saw how the Green Revolution brought in hybridplant varieties, which required massive irrigation water andheavy use of agro-chemicals which are now the majorpollutants of groundwater. We have seen how the forestindustry facilitated deforestation of our primary forests andchanged indigenous tropical trees with fast-growing trees,which consumed more volumes of water, through theTropical Forestry Action Plans.

(22) Our traditional knowledge developed over themillennia should not be compromised by an over-reliance onrelatively recent and narrowly defined western reductionistscientific methods and standards. We support theimplementation of strong measures to allow the full andequal participation of Indigenous Peoples to share ourexperiences, knowledge and concerns. The indiscriminateand narrow application of modern scientific tools andtechnologies has contributed to the loss and degradation ofwater (para 15, Indigenous Peoples Kyoto WaterDeclaration).

(23) Suez was formerly named Lyonnaise des Eaux. The vice-president of Suez, Rene Coloumb, is the President of theWorld Water Council.

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(24) The World Wide Fund for Nature in their assessment ofthe Third World Water Forum said that: Ministers fromindustrialized countries also criticised the final ministerialdeclaration. Among the criticisms were the failure to mentionthe impact of climate change on sea levels, which threatensome countries with drought and flood; gender issues sincewomen in many poor countries are forced to walk longdistances to carry water; and water management throughpoverty reduction. “What was missing was very important”,said Agnes Van Ardenne-van der Hoeven, Dutch minister fordevelopment cooperation. “It is important to consider inwhat way the rich world can change its policy and support, inan indirect way, poverty reduction.” WWF InformationDocuments, What is the World Water Forum, 2003.

(25) E/CN.17/2004/10/Add.4, Contribution by indigenouspeoples: Water, sanitation and human settlements. This is apaper prepared by Tebtebba Foundation and the IndigenousEnvironmental Network for CSD 12. Parts of the section onConclusions and Recommendations are lifted and included.

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To speak of indigenous peoples and water is to speak of culturaldiversity. Original inhabitants share the same philosophy about water,but they practise diverse forms of water management, according to theirown differing realities, histories and experiences. In the indigenousworld, there is no single ‘model’ for using water resources, but multiplealternatives and forms of management that change from region toregion and from time to time. The common element underlying thesediverse forms of water management is ‘respect for water’, consideringwater resources not as an input or a commodity, but as a living part ofNature, as a being with which one must interact in order to ensure therights and participation of all living beings.

Pablo Solón is a sociologist, economist, film producer and author of several publications on water andindigenous rights. He is the Executive Director of the Solón Foundation, that takes active part in theCommission for Integrated Water Management in Bolivia. Solón has participated in the modification ofthe drinking water law and the water exportation law in Bolivia.

[email protected]

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The way water is distributed, the ways peoplecontribute to and are compensated by theirwater distribution, as well as conflict resolution,administration, access rights, technological man-agement, etc., vary from place to place. But theessence of their vision remains inalterable. It islike the water cycle, following multiple pathwaysand taking manifold forms, but it is alwaysWater.

This cultural diversity regarding water is practi-cally left out of most national and internationalpolicies and norms for water resources. The dom-inant vision, in the present globalised world, isthat water must be viewed, above all, in its eco-nomic dimension, assuring a price that willensure total cost recovery, plus a profit to encour-age new private investments. The solution pre-sented by the 2000 World Water Vision from theHague(1) or the Camdesus Report(2) is that, with-out new private investments in the sector, it willbe impossible to guarantee the principle ofwater for all. Consequently, these policies pro-mote a series of incentives and guarantees forprivate investors to put money into water.

Traditional water management knowledge andpractices are neglected and often even blamedfor waste and poor efficiency in water utilization.When traditional management is acknowledged,this is normally to create reservations whereindigenous rights and knowledge are allowed,within a small, isolated area. Indigenous systemsare seen as something from the past, to bephased out.

This concept proposes a single model, or rather thedominant model: privatisation or commoditisa-tion of water. The Camdesus Report recognizesthat there are public systems, but its conclusionsemphasize private intervention. When it pro-motes the Public-Private Partnership, the empha-sis is on the role of and advantages to be grantedto the private partners.

Community, indigenous and traditional systemsare generally ignored. In the dominant mindset,there is only public or private. Community sys-tems, since they have no legal standing as ‘public’,are often lumped into the private category.However, there is a great difference between pri-vate investors in the water sector, and community

water supply systems, although both are ‘non-public’. The former aim for investment paybackand the greatest possible profit, whereas socialwater management systems aim to meet thepeople’s needs. There is not only the public sectorand the private investor, but also the community-social stakeholders. Indigenous systems fit intothis third category, and their particular strengthis that they aim to care for all living beings, andfor the Earth itself.

If we assume that indigenous systems are part ofthis extensive group of community-social sys-tems, we will see that we are not talking of amarginal sector, or a leftover from past history,but an essential, fundamental sector. The solu-tion for water problems will not come from pri-vate investors or public bureaucrats, but from anincreasingly prominent role played by commu-nity managers alongside society’s participation inand oversight of public governance.

An essential, fundamental problem for humankind,such as access to water, can be resolved only by pro-moting society’s broadest possible participation.Indigenous systems emphasize such participation,presence and monitoring. By contrast, private-investor options cut the public off from this rela-tionship, making people think that the problemlies simply in paying a water bill.

Decisions about water management and policies,laws, contracts and projects promoting the com-moditisation and privatisation of water must beamply discussed and decided by the people. In allareas, but especially regarding water, these deci-sions cannot be made behind the society‘s back.Applying democracy to water is an essential prin-ciple that must be learned from the indigenousvision and spread throughout the world. In mostdeveloping countries and many supposedly devel-oped ones, significant decisions about waterresources are made without adequate informa-tion, debate or consultation with the public.

If we truly respect democracy for a people, anation or a community, it is not possible to grantforeign aid or loans to a country on the conditionthat they privatise water services. The WorldBank, multi-lateral banks and some sectors ofinternational co-operation may think that thebest way out is to privatise water, but they should

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not impose that policy as a condition for struc-tural adjustment plans or re-negotiation of for-eign debt. Applying the mechanisms of democ-racy to water management will mean thatinternational agencies do not link foreign aid toprivatisation and commoditisation of this vitalresource.

Similarly, if water is included in free tradetreaties as a commodity, a water supply service,an environmental service or external investment,this jeopardizes the democratic managementof water. The weight and obligations of thesefree-trade treaties (WTO, FTAA, FTTs(3)) are soburdensome that they ultimately overrulenational constitutions and laws. When a countrycontradicts what it has signed in a free trade treaty,it is liable to be sued before an internationalarbitration panel such as the World Bank’sICSID(4). This is the case for Bolivia, currently facinga lawsuit by the US trans-national, Bechtel, forUS$25 to 100 million for breach of contract inhaving amended the law promoting privatisationof water supply services.

In summary, imposing laws, conditions on loans,and the inclusion of water in free trade treatiesnot only endangers democratic management ofthis fundamental resource, but eliminates cul-tural diversity by imposing one model over theothers. It standardizes water management, put-ting an end to centuries of social, communitywater management, of which the indigenouspeoples are living exponents.

ENDNOTES (1) World Water Vision. Document presented as the outcomeof the Second World Water Forum, The Hague, 2000.

(2) Michel Camdessus was Executive Director and Presidentof the International Monetary Fund. The World WaterConsensus and other institutions commissioned him toprepare a keynote paper for the Third World Water Forum,entitled: ‘Financing Water for All’.

(3) WTO: World Trade Organization. FTAA: Free Trade Areaof the Americas. FTTs: bilateral or regional free-trade treaties.

(4) International Centre for Settlement of InvestmentDisputes

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39Irrigation system managed by indigenous communities, Ecuador – © R. Boelens

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Starting with a brief overview from an Andean viewpoint, the authorspropose a critical reading of several statements by the Second WorldWater Forum in The Hague. The concepts of the ancestral inhabitants ofthe Andes regarding nature, water and community management arefundamental to a more integrated vision of water management for theplanet as a whole. Their testimony may reveal a paradigm for equity anddevelopment which takes identity into account.

Leonidas Iza is the President of CONAIE (Confederation of Indigenous Nationalities of Ecuador) andtakes part in the inter-institutional initiatives of WALIR (Water Law and Indigenous Rights) and theAndean Vision of Water. He is a Kichwa leader from the province of Cotopaxi, and was previously amember of the National Congress for that province.

http://conaie.org/*This paper is based on the document entitled The Andean Vision of Water. It has been jointlyprepared by CONDESAN, CGIAB, CAMAREN, CIED-Peru, Sustainable Chile, Agualtiplano, CIPCA,IPROGA, and the Solón Foundation, with support from the Minga initiative of IDRC-Canada.

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The Andes

The Andes mountain range bears steadfast wit-ness to the origin and development of one of themost outstanding historical processes of theancient world, which led to the emergence of sev-eral civilizations. This was made possible by themanner in wich, over thousands of years, the orig-inal societies learned to use, transform and con-serve natural resources, to organize their territoryand to generate social and economic mechanismsuniquely suited to the Andean ecosystem.

The Andes mountain rangeThe Andes range runs north-south, parallel to theshores of the Pacific Ocean, covering 70 degreesof latitude along the western edge of SouthAmerica. It is 7250 km. long, occupying a continu-ous area of over two million square kilometres.

As a region, the Andes have some of the greatestenvironmental and geo-morphological diversityin the world. In view of its enormous length fromnorth to south, stretching through all climaticzones, and diverse vegetation, from the equatorto the Antarctic, as well as from sea level up toeternally snowcapped summits, it is not surpris-ing that the Andes contain the world’s mostdiverse range of types of landscape, climate andplant communities.

The geo-morphological and climatic complexityof the Andes currently seems to be a constraint,limiting the region’s development. The modernworld does not yet know how to make full use ofthe region’s diversity. In Antiquity, AndeanAmerica’s geographical and environmental con-straints were turned into advantages, by makinguse of the opportunities offered by plants, ani-mals, earth and water.

Transforming constraints into opportunitiesIn addition to the steep slopes and unpredictableclimatic changes characterizing the Andes, scarcityof water is one of the greatest challenges to sur-vival. To mitigate this situation, Andean indige-nous populations developed technologies suitedto their physical, ecological and cultural surround-ings, and even moved huge amounts of earth andwater to create sustainable agricultural niches.

Many techniques were used by Andean womenand men to manage water and create croplands,using the particular water systems for diversenatural conditions, such as the waru waru, camel-lón or sucaqollu seedbed /berms for floodplainsaround Lake Titicaca; the qocha ponds to catchrainwater, and the better-known farming ter-races or andenes to take advantage of steepAndean mountainsides.

Nowadays, most of the indigenous expertiseused to build reciprocal coexistence with Andeanenvironments is in disuse, the technologies aban-doned and the people who made them possible,disenfranchised.

The Andean populationIn the Andes, for over 20,000 years, the peopleestablished a lifestyle based on sustainable agri-culture and livestock management. This popula-tion constituted a society that maintained a well-balanced relationship with the environment, basedon values of complementarity and reciprocity.

Today, almost all indigenous peoples in theAndes share a similar set of problems regardingtheir social, political and economic situation ascolonized, marginalized population groups.

Water in the Andeanworldview

Although the visions of water in the Andeanregion have particularities according to the dif-ferent indigenous cultures, the diversity of eco-logical areas, the different locations of basins,and the levels of social organization (communi-ties, hamlets, villages, ayllus, etc.), there are com-mon denominators that must be maintained andrespected. For Andean peoples, water is muchmore than a natural resource:

Water as a living being In many Andean communities, water is viewed asa living being, providing life and supporting themovement of the universe. One has a dialogue

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with water, treats it affectionately, and rears itlike a growing creature. This vision has been afundamental factor in suitable harvesting, con-servation and reproduction of water resources.

Water as a divine beingAccording to ancient traditions, passed down inmany contemporary communities, water origin-ated from Wirakocha, the God who created theuniverse, who impregnated Pachamama (MotherEarth) and made it possible for life to reproduce.Therefore, water is a divinity, present in lakes,lagoons, the sea, rivers and all bodies of water.

Water as the basis for reciprocity and complementarityWater must play a social role, considering the in-tegration of living beings, and the co-ordinationof Nature with human society. It is the blood of theEarth and of the Andean universe. It is importantin order to facilitate reciprocal practice in Andeancommunities. It must order people’s lives, andpresent differences not in terms of opposition butas complementary elements, enabling conflict res-olution on the basis of community agreements.

Water as a universal community right Water belongs ‘to everyone and to no one’. Itbelongs to the Earth and to living beings, includ-ing human beings. Therefore, it is critical to dis-tribute it equitably according to communityneeds, customs and standards, and according tocyclical availability.

Water as an expression of flexibility and adaptability Water behaves according to ecosystems, circum-stances and situations, without following rigidnorms. It depends on the weather, climate andterrain. Andean society, like water, is continuallyopen to whatever it has to face, selectively incor-porating elements from other cultures andhuman groups to supplement their own culture.

Water as a creative, transforming being Water follows natural laws, according to sea-sonal cycles and territorial conditions.Sustainable water use implies generating andapplying knowledge and skills obtained over thecenturies, and building water infrastructure tomake it possible to harvest and distribute water,on the basis of efficient, joint management.

Water as social re-creationWater is a foundation for re-creating diversityover space and time, in community organiz-ations, in people’s participation, enabling commu-nities to practice self-determination, through anongoing dialogue and exchange with Nature.

The reality of the context ofthe World Water Vision

The World Water Vision, approved by the SecondWorld Forum in The Hague (March 2000) not onlyignored the outlook of rural and indigenous peo-ples in the Andes and the world, but evenignored their survival. The Vision from TheHague, which was to be turned into anInternational Action Plan in Kyoto (March 2003)threatens conservation and sustainable use ofwater resources on an international scale, andespecially for countries with highly significantindigenous populations, such as in the Andes.

In these countries, laws on natural resources,especially regarding water, fail to consider thevision, culture and proposals of indigenous andrural folk regarding one of the millennium’s moststrategic resources. They fail to respect the rightsand common-law practices of indigenous peoples.This reality is all the more alarming when wesee that indigenous and rural people’s watermanagement sustains national food security.

We are concerned mainly by four proposals in theHague World Water Vision:

• Reducing the use of water in the agriculturalsector by widespread use of trans-geneticcrops: This proposal for a way to use waterefficiently, strikes directly at the immense bio-

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diversity of native crops in the Andes. It wouldmake entire populations dependent onbiotechnology companies, undermine theirfood security and sovereignty, and violate theprecautionary principle regarding such crops.• Reallocating water from lower-value uses(e.g. household farming) to higher-value uses(large-scale agriculture, industry and watersupply): This proposal would lead, in theAndean regions, to destroying small-scalefamily farm production, which is the basis fortheir livelihood and culture, boosting migra-tion to cities and generating new pockets ofpoverty there.• Making private investment the driving forceto influence solutions to water problems: Thisproposal, which is the basis for many officialpolicies in the Andean countries and the worldover, leads to privatisation of water, relievingthe State of any responsibility to water users,and artificially generating a demand for bigbusiness at the expense of most of the world’spopulation, especially indigenous and peasantcommunities.• Charging the total cost of water: Chargingthis in a context of privatising the resource,while appealing to private investors, jeopard-izes the availability of water to maintainecosystems, restricts people’s access to thisresource, and transforms water into a com-modity, no longer available for public use asa national asset, common-law right or collec-tive right.

Proposal for action based onAndean visions

How to respect the visions of indigenous andpeasant populations of the Andes, strengthentheir identity, assure their rights and conservewater resources? We feel that the followingprinciples are fundamental:

Water as common heritageTo strengthen integrated water management,any action plan regarding water must be orientedtoward protecting and conserving it, and must

guarantee its equitable availability to assure theexistence of all the planet’s living beings.Therefore, it is crucial to assure and protect watersystems, both in their geographical setting andtheir natural cycle, through consensus-basedactions and mechanisms that keep ecosystems,plant and animal species and community lifeintact, recreating their cultural identity with dig-nity. Water is the Earth’s heritage and belongs toall forms of animal, plant and human life.Therefore, any legal framework regarding waterresources must be based on this principle.

Water as public domainThis principle entails defining water, in constitu-tions, as a public asset under the control of soci-ety at large. At the same time, equitable usagemechanisms must be formulated that will beresponsive to the needs of Nature and of humancommunities, with priority for the rights of liveli-hood, food sovereignty and local development.

Water as common property, not a commodityWater hoarding by the most powerful sectors ofthe economy, such as mining, industry, agri-business, export and so on, acts to the detrimentof most users and of Nature itself. Therefore, nocompany, national or transnational, or any privateperson, has the right to appropriate water own-ership or hoard its usage for private profit at theexpense of the rest of society. Because water ispublic domain, it is a life resource that cannot bereduced to a single commercial value, subject tomarket laws. Therefore, water cannot be dealtwith in free trade treaties such as WTO, FTAA, orbilateral agreements.

Re-valuing Andean expertise, technologies and organizationThe lore of the Andean world and their techno-logical and social systems for water managementare grounded in the principle of reciprocal co-existence with Mother Earth and in collectiveownership of water, based on their own legaland social system. These factors have been ableto guarantee the sustainability of ecosystemsfrom time immemorial and therefore must bepreserved, respected and recognized. Traditionalwater management systems, developed and valid-

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ated over hundreds of years, but nowadays setaside, are proven alternatives for water resourcesustainability. Therefore, they must be betterunderstood, valued, recovered and disseminatedas technologies for sustainable development.

Integrated, participatory management systemsWater management systems must be based on aholistic concept integrating the watershed terri-tory, with compatible uses and sustainability ofthe resource. The prioritisation of water usesmust be based on participatory mechanisms thatenable water conservation and equitable access.Sustainable management projects require publicinformation on the current status and availabilityof surface and ground water. This information iscurrently almost non-existent, not systematizedand difficult or costly to access.

Participatory institutions and societal oversightLegislative norms and water management formsmust guarantee that water is available in termsof volume and quality, to ensure the sustainabil-ity of ecosystems and human communities and tosatisfy their needs. Therefore, systems of govern-ance, both at the basin level and nationally, mustbe based on existing local water authorities, suchas indigenous and rural communities, irrigators’associations, and other water users. Governmentsof Andean countries must respect and value theoriginal holistic rights and management arrange-ments of indigenous and rural communities,which must be recognized as common heritage.

Suitable economic policiesAll public investment policies must considerwater conservation as a priority, with sustainablemanagement and local and regional develop-ment policies based on indigenous and rural usesand customs. Any private investment in thewater sector must be subject to such criteria. InAndean watersheds, water resources are gener-ated in the highest areas, but generally benefitthe lowlands. Water policy must prioritise suit-able mechanisms to benefit all equitably, guaran-teeing better quality of life for the people livingin the high-altitude areas, who are the mostunder-privileged.

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45Indigenous women claiming water control rights, Licto, Ecuador – © R. Boelens

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Rutgerd Boelens is a researcher at the Department of Environmental Sciences / IWE, WageningenUniversity, The Netherlands, and coordinator of the international action-research program WALIR –Water Law and Indigenous Rights.

[email protected]

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In former days, indigenous water property rights were taken awaythrough violence, conquest, colonization and oppression. Althoughviolent take-overs have not disappeared, the keywords in today’s societyare no longer exclusion and outright oppression but so-called ‘inclusion’,‘integration’ and ‘participation’ in the name of ‘equality’. Fundamental questions then arise: equal to what, to whom, to whichmodel? Inclusion in what? Participation in accordance with whoseobjectives, visions and terms?

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In many regions of the world, peasant and indige-nous water management systems are the founda-tions that sustain local livelihood and nationalfood security. In most Andean countries, forexample, indigenous and peasant communitiesare the main providers of food for the nationalpopulations. Therefore, security of access towater and the means to manage their water sys-tems is of crucial importance. Despite this fact,millions of indigenous water users find them-selves structurally among the poorest groups ofsociety. Moreover, they are usually not repre-sented in national and international water deci-sion-making bodies. This contributes to a situa-tion of increasing inequality, poverty, conflict andecological destruction. On top of the historical,extremely unequal distribution of access to water,today indigenous and customary water rights inLatin America and elsewhere are increasinglyunder pressure.

In this context, it is alarming that, having exam-ined the Second World Water Forum documents,participants reached the conclusion in their finalstatement that “(…) indigenous peoples andtheir unique systems of values, knowledge andpractices have been overlooked in the GlobalWater Vision process. The session concludes thatthere is an urgent need to correct the imbalanceof mainstream thinking by actively integratingindigenous women and men in subsequentphases, starting with the Framework for Action”(Second World Water Forum, 2000).

While this attention was lacking in the carefullyprepared, official, March 2000 debate, the situa-tion in the field is far worse. Even when indige-nous rights and water management practices arenot simply obstructed by national legislation andintervention policies, attention to the subject isnegligible. Governments have paid it mere lipservice. Most policies and legislation do not takeinto account the day-to-day realities and specificcontexts of indigenous groups. The Forum rightlyconcluded that “strong measures should betaken to allow indigenous peoples to participate,more actively sharing their specific experience,knowledge and concerns in the Global WaterVision and ‘Framework for Action’” (ibid.).

The program – Water Law and Indigenous Rights.Towards recognition of local and indigenousrights and management rules in national legisla-tion (WALIR) – aims to help to counter the above-mentioned discrimination and injustice. In thispaper, we outline some of the challenges of thisaction-research, exchange and advocacy program,which has been set up recently. Although theinvestigations also cover Mexico and the UnitedStates, its main focus of action is in the Andeancountries: Peru, Bolivia, Chile and Ecuador.

The article will first address some basic back-ground features of Andean water law, water pol-icy and local rights. Next, it will refer to theaction-research program and elaborate some ofits key conceptual challenges: indigenous waterrights and management rules, official recogni-tion of local socio-legal repertoires, and theeffectiveness of legal strategies for solving waterconflicts and rights issues. The intention is not togive definite answers, but to clarify importantquestions and dilemmas. Finally, the article willfocus on the problem of inclusion-oriented waterlaw and policy strategies: the tyranny of thesemodern equality and participation discourses,which deny local and indigenous water rights,management rules and the construction of theirown livelihood strategies.

Notes on the Andean contextCurrently, the context for water rights and man-agement rules is changing rapidly in the Andeancountries. Increasing demographic pressure, andthe processes of migration, transnationalisationand urbanization of rural areas, among others,are leading to profound changes in the agrarianstructure, local cultures and forms of naturalresource management. Newcomers are enteringthe territories of peasant and indigenous com-munities, often claiming a substantial share ofexisting water rights while neglecting local rulesand agreements.

The Andes is also going through a period ofaggressive, neo-liberal water reform. It is commonto see that powerful stakeholders are able toinfluence new regulations and policies, or monop-

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olise water access and control rights. National andinternational elites or companies use both Stateintervention and new privatisation policies to nul-lify and appropriate indigenous water rights(1).

But at the same time, new opportunities for cus-tomary and indigenous cultures and rights systemsare appearing. It can be observed that mostAndean countries have accepted internationalagreements and are working towards constitu-tional recognition of ethnic plurality and multi-culturalism (or interculturalidad). At a generallevel, ‘indigenous rights’ are associated with, orconsidered to be, ‘human rights’. However, whenit comes to translating such general agreementsinto practice, particular local and indigenousforms of water management (especially watercontrol rights) tend to be denied, forbidden orundermined in specific legislative fields, such aswater laws and policies (Bustamante, 2002;CONAIE, 1996; Gentes, 2002, 2003; Getches, 2002,2003; Guevara and Urteaga, 2002, 2003; Pacari,1998; Palacios, 2002, 2003; Peña, 2004).

In the Andes and elsewhere, the denial of con-temporary forms of indigenous water manage-ment is often combined with a glorification ofthe past: “Incas yes, Indians no!” (Méndez, 2000;Almeida, 1998; Baud, 2003; Gelles, 2000; FloresGalindo, 1988). The attitude towards contem-porary indigenous communities tends to be folk-loristic. The use of either romanticized, paternal-istic or racist approaches is very common. Policiesare oriented towards an imagined concept of‘Indianity’ or stereotype towards the assimilationand destruction of indigenous water rights sys-tems.

As a result of the above, Andean countriesare replete with examples of the negativeimpacts on organization and infrastructure ofmany top-down water programs. They usuallyfail to understand the dynamic and plural natureof indigenous rights and management rules.

In the last decade, as a reaction, we see a certainshift from a class-based to a class- and ethnicity-based (‘indigenous’) struggle for water accessand control rights, especially in countries such asEcuador and Bolivia. In many regions the tradi-tional struggle for more equal land distributionhas been accompanied or replaced by collective

claims for more equal water distribution, and forthe legitimisation of local authorities and norm-ative frameworks for water management. Butwhy, particularly, the theme of water rights?

Water rights, indigenousstruggle, action-research and debate

In these times of growing scarcity and competi-tion for access to water resources, water rightshave become a pivotal issue in the struggle oflocal indigenous and peasant organizations todefend their livelihoods and secure their future(see Vincent, 2002). Water in Andean commun-ities is often an extremely powerful resource.Apart from being a foundation for productivesocial and religious practices and forging thecommunity’s identity, the collective nature ofwater by definition forces people to build strongorganizations. In most cases, the resource can bemanaged only by means of day-to-day collectiveaction. Collaboration, instead of competition, isthe only way to survive and secure water rights inthis extremely adverse environment.

This ‘forced’ collective action to manage theresource should not be romanticized, and is notembedded in a presumed ‘Andean solidarity’. Itis a form of local, ‘contractual reciprocity’,aimed at sustaining and reproducing localwater management systems as well as the house-holds and communities that depend on them(Boelens and Doornbos, 2001; Mayer, 2002; Rufand Mathieu, 2001). Apart from its local orienta-tion, this collective reciprocal action may also cre-ate a strong basis for broader political alliances, forexample in backing particular water policies andopposing forms of legislation and policies thatdeny indigenous or customary rights.

Consequently, as field evidence shows, policies toprivatise and individualize water rights create anenormous danger for indigenous and peasantcommunities in the Andes. This is also the maincause of the recent, very intensive, Water Wars inBolivia (Assies, 2000; Bustamante, 2002).

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In order to delve deeper into the power of water,it is necessary to understand the multi-layeredconcept of water rights in most indigenous andpeasant communities. Typically, water rights donot refer to rights of access and withdrawal only,but are considered to be authorized claims to usewater and to control decision-making aboutwater management (Beccar et al., 2002; Vincent,2002; Zwarteveen, 1997). Therefore, it is a strug-gle over the following key issues: access to waterand infrastructure; rules and obligations regard-ing resource management; the legitimacy ofauthority to establish and enforce rules andrights; and the discourses and policies to regulatethe resource. And it is precisely the authority ofindigenous and peasant organizations that isincreasingly being denied, their water usagerights that are being cut off, and their controlover decision-making processes that is beingundermined.

Fundamentally, a water right, more than just arelationship of access and usage between ‘sub-ject’ (the user) and ‘object’ (the water), is a socialrelationship and an expression of power amonghumans. It is a relationship of inclusion and exclu-sion, and involves control over decision-making.Therefore it is crucial to consider the two-sidedrelationship between water rights and power.Power relations determine key properties of thedistribution, contents and legitimacy of waterrights, and in turn water rights reproduce orrestructure power relations (see Boelens andHoogendam, 2002).

These considerations led to the formulation ofthe WALIR (Water Law and Indigenous Rights)program, which is an international endeavourbased on action-research, exchange, capacity-building, empowerment and advocacy(2). As athink-thank, WALIR informs debates on indige-nous and customary rights in water legislationand water policy. In collaboration with existingnetworks and counterpart initiatives, WALIR setsout to analyse the water rights and customarymanagement modes of indigenous and peasantcommunities, comparing them with currentnational legislation and policy. In this way, itsheds light on how these indigenous rules andrights regarding water are both legally andmaterially discriminated against, and evendestroyed. The aim is to contribute to a process

of change that recognizes indigenous and cus-tomary water management rules and rights innational legislation.

While indigenous populations, especially, arebeing confronted with increasing water scarcityand neglect of their water management rulesand rights, the current political climate seems tobe changing. However, changes in the law arestill void of content, while clear research resultsand proposals in this area are lacking. The pro-gram aims to help bridge these gaps, facing thechallenge of taking the dynamics of customaryand indigenous rules into account, withoutfalling into the trap of ‘freezing’ such local norm-ative systems or taking them out of context.

Recognition of local andindigenous rights: conceptual problems andstrategic challengesWALIR is an interdisciplinary program, compris-ing lawyers, anthropologists, water profession-als, sociologists and agro-economists. Their socialbackgrounds also differ significantly, rangingfrom academics and policy-advisors to action-researchers and legal advisors of indigenousorganizations. The countries studied and theirrespective legal structures are also, of course,very different, as are the national debates onindigenous and customary rights, and the lan-guages and concepts that are used. The chal-lenges, then, are manifold, and are both practicaland conceptual. For example:

The notion of ‘indigenous’Decades ago, Frantz Fanon made the followingobservation, which it is useful to recall in thecontext of the WALIR program: “Colonialspecialists do not want to recognize that theculture has changed, and they hasten to supportthe traditions of native society. It is precisely thecolonialists who have become the defendersand advocates of a native lifestyle” (Fanon,1963).

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It gives a powerful warning to scholars, action-researchers and NGOs, to refrain from naïveparticipationism or philanthropic imperialism andto take a critical look at any intention to supportso-called ‘indigenous’ knowledge, culture, rights,livelihoods and natural resource management. Italso provides a background for the discussionsthat the program intends to stimulate, andshows partly how complex its objectives are. Forexample, what is, or who is, ‘indigenous’?

In the Andean region, as elsewhere in LatinAmerica, the idea of so-called ‘Indians’ wasinvented and the concept of ‘indigenous’ wasconstructed by various racist currents, develop-mentalist paradigms and romanticized narratives– and by the indigenous peoples themselves.Very different regimes of representationconstructed their own projections of ‘Andeanidentity’ or ‘indigenous cultures’. Some of theserefer to the ‘backwardness’ of the ‘Indians’,implying that they should be assimilated intomainstream culture. Others are neo-positive,idealized images of ‘real and pure Indians’, iso-lated from cultural interaction and defenders oforiginal, positive human values(3). Indigenousgroups have often adopted or contributed tocreating these stereotypes, sometimes unwit-tingly, sometimes with clear ideological andpolitical purposes.

Is it possible to speak of specific ‘indigenous’ or‘Andean’ cultures, communities, water manage-ment forms or socio-legal systems? On the onehand, indigenous peoples dynamically shoparound in other normative systems and dis-courses, selecting and appropriating those ele-ments, tools, and meanings that can strengthentheir positions and legitimise their claims. New,diverse, indigenous identities are being con-structed, in a strategy to represent indigenouspeoples in their struggle against subordinationand discrimination. On the other hand, Andeancommunities show specific historical and culturalforms of collective action and resource manage-ment, embedded in specific Andean cultures withtheir particular normative repertoires, symbolsand meanings, livelihoods and local economies.

Together, both aspects show the importance ofanalysing Andean cultures and managementforms as dynamic and adaptable to new chal-

lenges and contexts. As mentioned by Gelles(2000:12), Andean culture and identity, there-fore, is “a plural and hybrid mix of local moreswith the political forms and ideological forces ofhegemonic states, both indigenous, Iberian andothers. Some native institutions are with us todaybecause they were appropriated and used as ameans of extracting goods and labour by Spanishcolonial authorities and republican states afterIndependence; others were used to resist colonialand postcolonial regimes”.

Nowadays, we find a mixture of diverging posi-tions with respect to the notion of ‘indigenous’and its implications in practice. For example,there are racist constructs that are orientedtoward either ‘exclusion’ or ‘bio-political inclu-sion’; there are constructs related to develop-mentalist integration (‘backwardness’), toMaoist-Leninist missions (‘revolutionary nature’),to advocacy for romanticized ways of life(‘cosmo-visionist’) or based on postmodernanalysis (‘deconstruction’). It is interesting to seein this current complex situation a strategicstruggle of indigenous water user-groups to re-appropriate more than the above-mentionedwater access rights, management rules, organi-zational forms, and legitimate water authority.In addition they actively aim to construct theirown counter-discourses on ‘Andeanity’ and‘Indianity’ alongside policies to regulate water.This dynamic, strategic-political struggle forcounter-identification (or self-definition), is notnecessarily based solely on local truths, rules,rights and traditions.

The issue of ‘recognition’ A further major challenge of the program isrelated to the notion of ‘legal recognition’. Inorder to confront the processes of discrimination,sub-ordination and exclusion, indigenous andadvocacy groups often aim for political actionwith clear, collective, unified objectives. However,the struggle for formal and legal recognitionposes enormous conceptual challenges, withimportant social and political consequences.

In another paper, we discuss the dilemma regardingrecognition of legal hierarchies, arguing that adistinction must be made between analytical-academic and political-strategic recognition(4).

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“In an analytical sense, legal pluralistic thinkingdoes not establish a hierarchy (based on thesupposedly higher moral values or degrees oflegitimacy, effectiveness or appropriateness of alegal framework) among the multiple, existinglegal frameworks or repertoires. In politicalterms, however, it is important to recognizethat in most countries the existing, officiallegal structure is fundamentally hierarchicaland consequently, in many fields state law mayconstitute a source of great social power – a factthat does not deny the political power that localsocio-legal repertoires may have. Recognizingthe existence of this political hierarchy, and theemerging properties of state law in particularcontexts, offers the possibility to devise tools andstrategies for social struggle and progressivechange. In the discussion about ‘recognition’ as away of giving legal pluralism a place in policy-related issues, both the political-strategic andanalytical-academic aspects of recognition com-bine” (Boelens, Roth and Zwarteveen, 2002). Thus, instead of collective and unified claims,many questions arise in the debates and strug-gles for ‘recognition’, for example:

• Do indigenous peoples and their advocatesclaim recognition of just ‘indigenous rights’(with all the conceptual and political-strategicdilemmas of the ‘indigenous’ concept), ordo they also struggle for recognition of thebroader repertoires of customary and peas-ant rights prevailing in the Andes? Andwhat precisely is the difference in concrete,empirical cases?• There are no clear-cut, indigenous socio-legal frameworks, but many dynamic, inter-acting and overlapping socio-legal reper-toires. Should indigenous peoples try topresent and legalize delimited frameworksfor their own water rights, rules and regula-tions? Or should they rather claim recogni-tion of their water control rights and therebythe autonomy to develop those rules, with-out the need to detail and specify these rules,rights and principles within the official legalframework? • Or would it be a more appropriate andeffective strategy to claim and defend legal-ization of their water access rights – sincethese are increasingly being taken away fromthem – and assume that water managementand control rights will follow once the mate-

rial resource basis has been secured? • Do recognition efforts only focus on the legalrecognition of explicit and / or locally form-alized indigenous property structures andwater rights (reference rights, often, but notalways, written down), or do and should theyalso consider the complex, dynamic function-ing of local laws and rights in day-to-daypractice? These ‘rights in action’ and ‘materi-alized rights’ emerge in actual social relation-ships and inform actual human behaviour,but are less tangible.• How to define and delimit the domain ofvalidity of so-called indigenous rights sys-tems, considering the multi-ethnic composi-tions of most Andean regions and thedynamic properties of local normative frame-works? In terms of exclusive geographicalareas, traditional territories, or flexible cul-ture and livelihood domains? • How to avoid assimilation and subsequentmarginalisation of local rights frameworkswhen these are legally recognized? Andhow to avoid a situation in which only those‘customary’ or ‘indigenous’ principles that fitinto State legislation are recognized by thelaw, and the complex variety of ‘disobedientrules’ are silenced after legal recognition?• Indigenous socio-legal repertoires onlymake sense in their own, dynamic and partic-ular context, while national laws demand sta-bility and continuity. How to avoid freezingcustomary and indigenous rights systems instatic and universalistic national legislation, inwhich local principles lose their identity andcapacity for renewal, making them useless? • Enabling and flexible legislation mightsolve the above problem. However, enablinglegislation and flexible rights and rules oftenlack the power to actually defend local andindigenous rights in conflicts with third parties.How to give room and flexibility to diverselocal water rights and management systems,while not weakening their position in conflictswith powerful exogenous interest groups? • What does such legal flexibility mean forinternal inequalities or abuses of power?If, according to the above dilemma, theautonomy to develop and enforce local rulesis claimed (instead of strategies that aim tolegalize concrete, delimited sets of indige-nous rights and regulations), how to face the

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existing gender, class and ethnic injusticeswhich also form part of customary and indige-nous socio-legal frameworks and practices?

The complexity of ‘law-oriented strategies’Following from the above dilemma and prob-lems, a major conceptual and practical challengestems from the fact that national (positivist)legislation claims by definition that the law mustfocus on uniform enforcement, general applicabi-lity and equal treatment of all citizens. But localand indigenous rights systems, on the contrary,and by definition, address particular cases anddiversity. How to deal with the conflict and funda-mental difference between positive legal Justice(oriented at ‘right’-ness /generality) and varyingforms of local Equity (‘fair’-ness / particularity)?State legislations have recognized this factwhen faced with the problem of the law losingits legitimacy in practice. Official justice was per-ceived as being unfair in many specific cases.Legal rules are general and individual cases areparticular, hence common laws were called upon.In many cases the second set of principles (fairness)has been institutionalised. This was not toreplace the set of positive rules of rightness, butto complement and adapt it. In fact, it appearedthat official legislation (Justice) often survived,thanks to the ‘fairness’ and acceptability ofcommon laws that were incorporated. This wasoften carried out by formulating special laws.However, this institutionalised equity is a contra-diction in terms. It leads almost automatically tothe ironic situation in which the set of commonor customary rules (equity), itself becomes a gen-eral, formalized system and loses its pretensionsof ‘appropriateness’, ‘being acceptable’ and‘doing justice’ in particular cases (Schaffer andLamb, 1981; Boelens and Dávila, 1998;Lauderdale, 1998).

A closely-related dilemma involves the effective-ness of legal recognition. Considering the lack ofaccess of peasant and indigenous communities toState law and administration, this question isprominent: is legal recognition the most effectivestrategy, or would it be better for peasant andindigenous communities to defend their waterlaws and rights ‘in the field’? Moreover, often it isnot the State law as such that sets the rules of thegame in peasant and indigenous communities,

but hybrid complexes of various socio-legal sys-tems are in place. Formal rights and rules cannotact by themselves, and it is only the forces andrelationships of society that can turn legalinstruments into societal practice. Social andtechnical water engineers, lawyers and otherlegal advocates, in particular, have often overes-timated the actual functionality or instrumental-ity of formal law and policies in local contexts.

On the contrary, their legal anthropological col-leagues sometimes tend to underestimate thepower of formal law, assuming that all conflicts aresettled by means of local normative arrangements,without any influence from official regulations.However, the neo-liberal Water Laws (e.g. Chile) ortop-down instrumental water policies (e.g. inEcuador and Peru) have not only neglected custom-ary and indigenous forms of water management,they also have had concrete, often devastatingconsequences for the poorest people in society.

It is because of this that indigenous and grassrootsorganizations have fiercely engaged in the legalbattles. Moreover, in this regard, it is important toconsider here that efforts to gain legal recognitiondo not replace but rather complement local strug-gles ‘in-the-field’. On both levels there is political-strategic action to defend water access rights,define water control rights, legitimise localauthority and confront powerful discourses.

In the next section I will elaborate on the ways inwhich these key issues, at the local and nationallevels, shape the complex arena in which localwater rights and customary laws confront uni-form policies and politics of participation.

Inclusion and exclusion: the cultural politics ofparticipationNational water policies in the Andean countries,and especially their translation in field practice,reflect and deploy the political power and cul-tural hegemony of a dominant stakeholdergroup(5). This group has, historically, imposedrules, rights and regulations, and has controlled

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nation-building processes in the last centuries. Asshown by Gelles, State bureaucracies usually ignoreindigenous models of resource management,because of the alleged superiority of ‘modern’Western cultural forms and organization, andbecause the power-holders and dominantcultures of these nations regard indigenouspeoples as racially and culturally inferior (Gelles,2000:9-10)(6).

Here we need to examine an important change,that clearly differentiates power relations in theRepublican states from their Inca and Spanishcolonial predecessors. There is a move from realpolitical exclusion to an imagined political inclu-sion of indigenous peoples, from a discourse ofracial (and thus ‘natural’ social) differentiation toa discourse of equality.

In former days, indigenous property rights weretaken away through violence, conquest, coloniza-tion and oppression, and they were excluded fromthe benefits of society. In addition to appropriat-ing local cultural norms for their own extractivepurposes, the Inca emperors and other indigenousleaders, as well as the kings, conquistadores andhacendados during the Spanish colonial period,differentiated and elevated themselves by exclud-ing the subordinated classes from resources, serv-ices, and social life (see e.g. Flores Galindo, 1988;Patterson, 1991; Van der Ploeg, 1998). Many differ-ent means, including public displays that glorifiedand reified the might of the groups in power, rein-forced this differentiation and social exclusion.

In the post-colonial era the opposite occurs: notthe powerful authorities and landlords, but thepeasant and indigenous communities and thecommon people are made visible and brought tothe fore, by means of a Foucaultian ‘disciplining’,‘participatory’ power of ‘equalizing normaliza-tion’, which is present in everyday interactions.“It actually manifests and reproduces or trans-forms itself in the workplaces, families and otherorganizational settings of everyday life”(Foucault, 1980). Yet the powerful groups thatbenefit from this inclusive power, as well as thenew mechanisms and rules of subordination, infact remain invisible.

New irrigation legislation and state policies arethus often an expression of post-colonial dis-courses on equality. As De la Cruz (1993)observed, “the principle of equality before thelaw is valid for the identical and profoundlyunjust for the diverse” (Stavenhagen, 1994;Stavenhagen and Iturralde, 1990). This horizon-tal, disciplining power functions because it pene-trates people and society as a whole. “This poweris exercised rather than possessed; it is not a ‘priv-ilege’, acquired or preserved, of the dominantclass, but the overall effect of its strategic posi-tions – an effect that is manifested and some-times extended by the position of those who aredominated” (Foucault, 1978).

Thus across the Andes and many other regions ofthe world, irrigation technicians and develop-ment professionals introduce virtually the sameirrigation techniques, knowledge, and normseverywhere (developed in Western research cen-tres, universities, and development enterprises).But they are not just imposed in a top-down way.In many instances, it is the indigenous peasantsthemselves who ask for this same technology, inorder to ‘progress’ and leave behind their tradi-tional ‘backward’ technology, in order to becomelike the western-oriented, ‘modern farmers’(Boelens and Dávila, 1998; Van der Ploeg, 2003).

This kind of power in modern nation-states seeksfor inclusion, rather than exclusion, of Andeancommunities, indigenous peasants and otheroppressed classes. At the same time this ‘unifor-mity’ and ‘equality’ supposedly makes it easy tomeasure these social groups. They are individual-ized, classified, and made into ‘cases’, according tothe ways that they do or do not fit the model. Yet,their participation often results in disappointment,in social and cultural disintegration, and in theirbeing defined as ‘permanently backward people’,due to their incapacity to meet the norms forbeing ‘equal’. In the words of Fanon (1963):“The Western ideology, which is a proclamationof the fundamental equality of men (…) invitesinferior men to become human beings, accordingto the Western example of the humanity that itrepresents. In spite of being fundamentallyracist, it generally succeeds in hiding this racismthrough ever more subtle modifications; thus,maintaining its proclamation of men’s extraordi-nary dignity”.

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Another clear example of this is found in the nor-malizing, equalizing and categorizing propertiesof neo-liberal market ideologies penetrating theAndean nations – including legal and policyframeworks for water management. The neo-liberal economic principles are, on the one hand,imposed on Andean states by international insti-tutions and national power groups. But on theother hand, many of their basic concepts anddynamics have been adopted and internalised byAndean communities, penetrating and subtlytransforming local management forms andoften disarticulating indigenous water control.Thus, the use of universally applicable irrigationmodels, supported nowadays by water manage-ment privatisation ideologies, is a powerfulmeans by which contemporary nation-states andprivate interest sectors extend their control.

In sum, contemporary nation-states employ anew and different symbology of power, which isespoused in modernization and developmentdiscourses as well as in neo-liberal economic poli-cies. It aims to include, not to exclude; it pretendsto provide universal benefits, while in factextending state control and the cultural orient-ations of national and international power holders.Within this context, the recognition and balancedvaluation of local beliefs and practices is necessarilyprecluded because any legitimisation of theselocal norms calls into question the supposedmonopoly of the state and market ideology overrationality and legitimate culture (Gelles andBoelens, 2003).

The tyranny of participation Although violent take-overs have not disappeared,as outlined above, the keywords are no longerexclusion and outright oppression, but so-called‘inclusion’, ‘integration’ and ‘participation’, in thename of ‘equality’(7). But then, with these modernconcepts, fundamental questions arise:

First, if equality is strived for, the question is: equalto what, equal to whom, equal to which model?The basic assumption in current Latin Americanwater policies is, that ‘progress’ means: equality tothe occidental, techno-centric and male-biasedwater management model. The concept ofrational water management is interspersed withnon-indigenous norms about efficiency, social

security, effective organization, private ownershipand economic functionality. In practice, indige-nous peoples are forced to ‘equalize’. In otherwords, they are forced to adopt the norms andpractices of white or mestizo water users, whichmost often run counter to local social relationsand environment, and disintegrate local commun-ities and identity.

Second, if inclusion and participation are the object-ives, the obvious question is: inclusion in what?Participation in whose objectives, visions, andterms? In this respect, the Second World WaterForum (2000) concluded that “(…) there is a recur-rent problem for indigenous peoples, who areoften constrained to deal with vital issues on termsdictated by others. Traditional knowledge is seen asinferior in current political, legal, and scientific sys-tems and therefore their arguments are discardedtime and again by courts and other institutions”.

Third, regarding the important current concepts of‘integrated’ water management and ‘integrated’policies, there seems to be a general consensus, butwho does the integration? Let us have a look atsome common, inclusion-oriented, examples.

The famous Majes Project in southern Peru is oneof the many cases in which the Andean peasantand indigenous communities, and especially theirresources, were ’included‘ in the developmentprocess. Major investments were made –US$1,300,000,000 – to capture and conduct thewater from the Colca Valley and irrigate the desertlowlands. Only 15,000 ha. have been irrigated, fora total of 3000 families, who each obtained a 5 ha.parcel. This is an investment of the order ofUS$ 80,000 per ha., or, what is even moreappalling: US$ 400,000 per family (Hendriks,2002).

But the original design excluded, outright, any pro-vision of water for the upper basin, where theindigenous communities live, and where the watercomes from. Furthermore, to recover investments,those families who did acquire land and waterrights in the lower basin, had to pay US$ 25,000 perparcel, by no means affordable for an indigenoussmall-holder family. Indigenous communities in theAndean catchment were included, however. Toundo their ‘backwardness’, they did get the largestshare of the burden through the expropriation of

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land, strong price inflation, depredation of naturalresources, destruction of terraces, and debilitationof existing patterns of organization and culture(Tipton, 1988).

The United Nations /CEPAL estimated that barely0.2 % of total project investment was allocatedto the upper basin, where the poorest sectorswere in great need of irrigation water. Moreover,comparing this budget with other options at thattime, 750,000 ha. of abandoned terraces couldhave been recovered and brought back intoproduction in peasant and indigenous commu-nities (CEPAL, 1988; see also Manrique, 1985).

It is interesting to compare this with an examplein Ecuador. According to Whitaker’s study (1992)peasant and indigenous farmers with less thanone ha. – who are responsible for the major partof national food production – represent 60% ofall farmers, but they received only 13% of Statespending on irrigation. At the same time, largelandowners represent only 6% of farmers, andthey received 41% of State spending on irriga-tion. The public financed all this. State irrigationinvestment in Ecuador at that moment repre-sented 11.6% of the total foreign debt.

Another example is the inclusion of indigenouswater communities in current global water policymodels. In Chile, indigenous peoples are includedin the 1981 Water Code, dictating privatisation ofwater rights. While ideological studies continue topraise the model, empirical field studies indicatethe disintegration of collective, indigenous sys-tems. The individualization of water rights hasincreased insecurity and disorganization – insteadof decreasing insecurity, as neoclassical theorywants to have it (Bauer, 1997, 1998; Hendriks,1998; Dourojeanni and Jouravlev, 1999; Castro,2002). Moreover, according to the new legislation,decision-making rights on water management arenow attached to the economic buying power ofindividuals. Rights-holders with more ‘wateractions’ (volumetric rights per time unit) havemore decision-making power, contrary to indige-nous management and collective interests. Inmany cases, the interests of an elite owning waterrights have effectively been able to deny the inter-ests of the majority (the group of poorer users),and impose their own rules (Boelens andZwarteveen, 2003; Hendriks, 1998).

Next, since individual water property owners canmake use of the water entirely according to theirpersonal interests, Chile faces the problem of astrong increase in water contamination, whileindividual property owners are not sanctionedfor polluting their property. Often, indigenouscommunities and downstream cities bear theconsequences (Bauer, 1997; Dourojeanni andJouravlev, 1999).

At the same time, the water market itself hasnot developed (or in some cases has only verymarginally), but extreme monopolization, specu-lation and hoarding of water rights did. A fewpower-generating and mining companies haveaccumulated the vast majority of rights, most ofwhich are not used at the moment. The WaterCode does not request water rights owners toactually make use of these rights, nor are theyobliged to pay concession fees. This makeshoarding and speculation of water rightsextremely attractive in a context of scarcity(Solanes and Getches 1998, Solanes andGonzález-Villareal 1999). A major source for thisaccumulation and monopolization of waterrights was the expropriation of the so-called‘unregistered’ indigenous community rights(Castro, 2002; Dourojeanni and Jouravlev, 1999;Gentes, 2002; Hendriks ,1998). This relates to arecurrent problem of universal or national policymodels: their validity is based on theoreticalmodels and paradigms, but they usually fail tolook at human suffering and internal contradic-tions in the field.

A final and very common example at field levelshows the problems that arise from outside-driven integration of indigenous communitiesinto uniform national legislation, organizationalmodels and engineers’ designs(8).

The Ecuadorian State intervened in an indigenousarea of 20 communities in the Andes, in Licto, tobuild an irrigation system and carry out an integrated development program. The system wasdesigned in the country’s capital, without userinvolvement. The hydraulic design disregardedcommunity production systems and boundaries,and imposed a classic, universal blueprint.

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Diagram 1: Driving force behind indigenous watermanagement and collective action.

When the State agency, because of financial crisisand lack of capacity, did not complete construct-ion of the system, the indigenous communitiestook over its development, with the help of alocal NGO. They adapted the design, manage-ment and water rights to local demands andcapacities. Although many had no formal educa-tion or were illiterate, the means were devel-oped to discuss collectively the design, rules andrights. For example, they used scale models anduser-to-user training in the local language.Through interactive design and visual capacity-building tools, the creation of infrastructure andwater rights were linked. Next, combined literacytraining and water management capacity build-ing strengthened the position of female waterusers and female leaders, since they were tobecome involved in the management of the sys-tem. It was they who were in charge of creatingand maintaining water rights in the system.Fundamentally, collective action formed the basisfor the construction of infrastructure and theconstruction of water rights. A system was devel-oped which the communities now manage them-selves, from the main level to the field level.

However, once the 20 indigenous communitieshad finished the system, with clear rules andrights and strong collective management, theState administration came in again. It did notwant to recognize local management, regula-

Although the great majority of water users werefemale because of male outmigration, the infra-structure had no night reservoirs and the sched-ule was based on 24-hour irrigation. Night irriga-tion, however, made it impossible for women tomake use of water rights – for reasons such assexual violence, child care, soil erosion, remotefields, etc.

The nation-wide, uniform, legal recipe dictatedthe organization of the system, which wouldstrengthen bureaucratic power and artificialleaders, while weakening community structureand collective action which remains the only wayto survive in this region.

Law also pre-established that most women couldnot get water rights – unless they were formallyrecognized as ‘heads of households’ – although itwas they who, according to local indigenousrules, had worked, invested and thus created thewater rights. The State imposed a model inwhich water rules and rights were established bystandard government rationality: those individualswho have land and pay fees, get water rights.Indigenous rationality, on the contrary, says: youcannot just buy rights. Those who contributewith labour, organizational capacities and partic-ipate in the meetings, create water access anddecision-making rights. Thereby, individual rightsare derived from the collective ownership ofinfrastructure.

In many indigenous and rural communities thisis the motor of local water management andcollective action (see diagram). At the same timeas you create your infrastructure, you create yourwater rights and you create your organization.Then, to maintain and re-create your waterrights, you have to maintain and re-create thecollective infrastructure and organization. Thereis a dynamic and permanent interaction betweenthe technological system, the normative systemand the organizational system.

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creation ofwater rights

creation ofinfrastructure

creation oforganization

maintenance ofwater rights

maintenance ofinfrastructure

maintenance oforganization

Creation of water rights:

Re-creation of water rights:

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tions and water rights. Simply because local ruleswere not sustained by national law, they weredeclared ‘illegal’.

At this moment, the State agency, in their inter-pretation of the universal Decentralization andManagement Turnover policy, claimed the man-agement of the system back from the indigenouscommunities. Its argument was: “How can wehand it over if it is not in our hands?” Internationaland national policies usually have different effectsin the field than in the theory, and behind officialarguments a power play is going on.

Indigenous communities are defending theirtechnological, normative and organizationalwater-use system. But they face strong, positivist,uniform law and inclusion-oriented water policies.Ecuadorian Water Law, like most others, does notallow for local water rights and managementprinciples, and destroys the variety of normativesystems that do try to find particular solutions fordiverse contexts.

ConclusionIs it not ironic that precisely those producers oflocal livelihood and national food security, whodeveloped a variety of water rights and manage-ment systems in order to adapt them to the mul-tiple local constraints and opportunities, are thesame ones that suffer most from inclusive policiesand uniform, positive legislation? But, while cur-rent cultural politics and policies of ‘inclusion’ arethe problem, the solution is not to go back to‘exclusion’. Participation is desirable, but with adifferent approach to rights: one that takes intoaccount, from a critical perspective, the fact thatpeasant and indigenous communities want totake part on their own terms, given the diversityof identities, organizational forms and norm-ative frameworks that govern their water man-agement in practice – and given that most rightsof access and control have been taken away fromthem.

Thus, in indigenous and peasant communitiestoday, water users claim both the right toequality and the right to be different. On theone hand, there is a general demand for greaterjustice and equality regarding the unequal distri-bution of decision-making power, water, andother water-related benefits. On the other, thereis a demand for internal distribution to be basedon autonomous decisions, locally establishedrights and principles, and local organizationalforms for water control, which reflect the diversestrategies and identities found in peasant andindigenous communities today.

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ENDNOTES (1) The issue is often related to current land reform policies.Mayer, 2002; Zoomers and Van der Haar, 2000.

(2) WALIR is coordinated by Wageningen University and theUnited Nations Economic Commission for Latin America andthe Caribbean (UN/ECLAC) and is implemented in co-operation with counterpart institutions in Bolivia, Chile,Ecuador, Peru, Mexico, France, The Netherlands and theUSA, at international, national and local levels.

(3) It was therefore not just the dominant, racist class andsocial Darwinists, but also many ‘indigenist’ (and later‘Indianist’) scholars – e.g. Marxist thinkers and activists, whofought against racial discrimination and racial oppression –who contributed to the great mestizaje project, intending topaternalistically ‘include the poor indigenous peoples inmodern society’. This was carried out, among other means,by ‘modern’ technology (e.g. irrigation techniques),legislation and capitalization of Andean communities, or bydefining ‘indigenous’ as synonymous with ‘revolutionary’, inWestern schools of thought. Furthermore, some indigenousand Indian scholars and movements tried to create the‘modern Indian’, rooted in ancient indigenous myths andsymbols and pan-Andean discourses, in order to fosterregional pride and nationalism or legitimise their politicaland ethnic (often mestizo) positions. The ‘indigenous’ was –and often still is – characterized by projecting stereotypedimages (see, for example, Almeida, 1998; Baud, 2003; Baudet al., 1996; Boelens and Gelles, 2002; Degregori, 2000;Gelles, 2002; Guillet, 1992; Hale, 2002; Iturralde, 1993;Stavenhagen, 1994; Stavenhagen and Iturralde, 1990).

(4) “Taking ‘recognition’ as a point of departure implies thatthere is a ‘recognizing party’ and a ‘party being recognized’.This would put us in the kind of state-biased position inwhich matters are decided upon according to a state-determined hierarchy of legal systems’ validity andcapacities of validation. Such a position, needless to say,would invalidate the insights derived from attention to legalpluralism. On the other hand, it is important to be aware ofthe possible opportunities involved in (state) recognition,taking into account and taking seriously the fact that manylocal groups of resource users, ethnic and other minoritiesactively aspire and strive for this form of recognition. As wehave mentioned before, water users (and especiallymarginalized actors) are often constrained by state law, butat the same time they can (try to) approach it as a powerfulresource for claiming or defending their interests andrights” (Boelens, Roth and Zwarteveen, 2002. See alsoBenda-Beckmann, 1996).

(5) This section is based on Gelles and Boelens (2003).

(6) This bureaucratic irrigation tradition has been especiallypowerful in countries such as Peru and Ecuador. As Lynch(1993) and Boelens and Zwarteveen (2003) have shown, itsdevaluation of particular actors of water use extends towomen, as the gender discrimination found in the field andin irrigation offices is part and parcel of the bureaucratictradition.

(7) For an analysis of equality and participation discourses,see, among others, the works of Michel Foucault, HansAchterhuis, Arturo Escobar, Michael Taussig, Ivan Illich, RenéGirard, Bernard Schaffer. With reference to the title of thissection, see also Bill Cooke and Uma Kothari, 2002.

(8) Based on the chapter Recipes and resistance. Peasants’rights building and empowerment in the Licto irrigationsystem, Ecuador, of the book Water Rights andEmpowerment (Boelens and Hoogendam, 2002)

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Boelens Rutgerd, Zwarteveen Margreet, 2003, The politics ofAndean water policy reforms. Local and indigenous rights inthe context of privatisation policies. Austrian Journal ofDevelopment Studies 19 (4), pp 56-75.

Boelens Rutgerd, Roth Dik, Zwarteveen Margreet, 2002, Legalcomplexity and irrigation water control: analysis, recognitionand beyond. Paper for the International Congress of LegalPluralism, 7-10 April 2002, Chiang Mai, Thailand.

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Castro Milka, 2002, Local norms and competition for waterin Aymara and Atacama communities, Northern Chile. WaterRights and Empowerment, R Boelens and P Hoogendameds., pp 187-201, Van Gorcum, Assen.

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CONAIE, 1996, Propuesta Ley de Aguas. CONAIE, Quito.

Cooke, Bill and Uma Kothari. 2002, Participation. The newtyranny? Zed Books, London.

Cruz Rodrigo De la, 1993, Aportes del DerechoConsuetudinario a la reforma jurídico del Estado.Derecho, pueblos indígenas y reforma del Estado, pp 71-96,Abya-Yala, Quito.

Degregori Carlos Iván ed., 2000, No hay país más diverso.Compendio de la antropología peruana, PUCP, UP, IEP, Lima.

Dourojeanni, Axel and Andrei Jouravlev, 1999, El Código deAguas en Chile: entre la ideología y la realidad. Serie RecursosNaturales e Infraestructura 3, CEPAL, Santiago, Chile.

Fanon Frantz, 1963 (1959), The wretched of the earth. Grove Press, New York.

Flores Galindo, Alberto, 1988, Buscando un Inca. Identidad yutopia en los Andes. Editorial Horizonte, Lima.

Foucault Michel, 1978, Discipline and punish: the birth ofthe prison. Pantheon Books /Random House, New York.

Foucault Michel, 1980, Power /Knowledge: selectedinterviews and other writings 1972-1978, edited by ColinGordon, Pantheon Books, New York.

Gelles Paul H, 1998, Competing cultural logics: State and‘indigenous’ models in conflict. R Boelens and G Dávila eds.,Searching for equity, pp 256-267. Van Gorcum, Assen.

Gelles Paul H, 2000, Water and power in highland Peru: the cultural politics of irrigation and development. Rutgers University Press, New Brunswick, New Jersey.

Gelles Paul H, 2003, Indigenous peoples, cultural identityand water rights in the Andean nations. WALIR: CEPAL,Wageningen University, University of California,Wageningen and Riverside, California.

Gelles Paul H, Boelens Rutgerd, 2003, Water, Community andIdentity: The politics of cultural and agricultural production inthe Andes. T Salman and A Zoomers eds., Imaging the Andes:Shifting margins of a marginal world. CEDLA Latin AmericaStudies 91, Aksant /CEDLA, Amsterdam.

Gentes Ingo, 2002, Estudio de la Legislación Oficial Chilena ydel Derecho Indígena a los Recursos Hídricos. WALIR: CEPALand Wageningen University, Santiago de Chile.

Gentes Ingo, 2003, Estudio sobre marcos normativos indígenasy consuetudinarios referente a la gestión del agua en Chile.WALIR: CEPAL and Wageningen University, Santiago de Chile.

Gerbrandy Gerben, Hoogendam Paul, 1998, Aguas yacequias. PEIRAV – Plural Editores, Cochabamba.

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Getches David, 2002, Indigenous Rights and Interests inWater under United States Law. WALIR: CEPAL andWageningen University, Wageningen /Boulder, Colorado.

Getches David, 2003, Indigenous peoples’ rights to waterand international norms. WALIR: CEPAL and WageningenUniversity, Wageningen /Boulder, Colorado.

Guevara G Armando,Vera D Iván, Urteaga C Patricia,Zambrano Gustavo, 2002, Estudio de la Legislación OficialPeruana sobre la Gestión Indígena de los Recursos Hídricos.WALIR: CEPAL and Wageningen University, Lima.

Guevara G Armando,Vera D Iván, Urteaga C Patricia,Zambrano Gustavo, 2003, Estudio sobre marcos normativosindígenas y consuetudinarios referente a la gestión del aguaen el Perú. WALIR: CEPAL and Wageningen University, Lima.

Guillet David, 1992, Covering Ground: Communal watermanagement and the State in the Peruvian Highlands.University of Michigan Press, Ann Arbor.

Hale Charles R, 2002, Does multiculturalism menace?Governance, cultural rights and the politics of identity inGuatemala. Journal of Latin America Studies 34 (3) pp 485-524.

Hendriks Jan, 1998, Water as private property. Notes on thecase of Chile, Searching for equity, R Boelens and G Dávilaeds., pp 297-310, Van Gorcum, Assen.

Hendriks Jan, 2002, Water Rights and Strenghtening Users’Organizations: the Art of Negotiating, Water Rights andEmpowerment, R Boelens and P Hoogendam eds., pp 52-74,Van Gorcum, Assen.

Iturralde Diego, 1993, Usos de la Ley y usos de la costumbre:La reivindicación del derecho indígena y la modernización delEstado. Derecho, pueblos indígenas y reforma del Estado,Colección Biblioteca Abya-Yala 2, Abya-Yala, Quito.

Lauderdale Pat, 1998, Justice and Equity: a CriticalPerspective. Searching for equity R Boelens and G Dávilaeds., pp 5-10. Van Gorcum, Assen.

Lynch Barbara D, 1993, The Bureaucratic Tradition andWomen’s Invisibility in Irrigation. Proceedings of the 24th

Chacmool Conference, pp 333+342, University of CalgaryArcheological Association, Alberta.

Manrique Nelson, 1985, Colonialismo y pobreza campesina:Caylloma y el Valle del Colca siglos XVI -XX. DESCO, Lima.

Mayer Enrique, 2002, The Articulated peasant. Householdeconomies in the Andes. Westview Press, Boulder, Oxford.

Méndez Cecilia, 2000, Incas sí, indios no: apuntes para elestudio del nacionalismo criollo en el Perú. IEP, Lima.

Pacari Nina, 1998, Ecuadorian water legislation and policyanalysed from the indigenous-peasant point of view. Searching for equity. R Boelens and G Dávila eds., pp 279-287, Van Gorcum, Assen.

Palacios Paulina, 2002, Estudio nacional de la LegislaciónOficial y los Marcos Normativos Consuetudinarios referentea la Gestón Indígena de los ecursos Hídricos. WALIR: CEPALand Wageningen University, Quito.

Palacios Paulina, 2003, Estudio sobre marcos normativosindígenas y consuetudinarios en la gestión del agua en elEcuador. WALIR: CEPAL and Wageningen University, Quito.

Patterson Thomas, 1991, The Inca Empire: The Formation andDisintegration of a Precapitalist State. Berg Press, New York.

Peña Francisco (ed.), 2004, “Los pueblos indígenas y elagua”, El Colegio San Luís, IMTA, WALIR. ObranegraEditores, Bogota and Mexico.

Ploeg Jan Douwe van der, 1998, Peasants and power. Searching for equity. R Boelens and G Dávila eds., pp 39-45, Van Gorcum, Assen.

Ploeg Jan Douwe van der, 2003, The Virtual Farmer. Van Gorcum, Assen.

Ruf Thierry, Mathieu Paul, 2001, Water rights and theinstitutional dynamics of irrigated systems: between State,market and community action. International Journal ofWater 1, no 3-4.

Schaffer Bernard, Lamb Geoff, 1981, Can equity beorganized? Equity, development analysis and planning.Institute of Development Studies, Sussex University, Brighton.

Second World Water Forum, 2000, Forum Sessionconclusions Water and Indigenous People,www.worldwaterforum.org, The Hague, March 2000.

Solanes Miguel, Getches David, 1998, Prácticas recomendablespara la elaboración de leyes y regulaciones relacionadas conel recurso hídrico. BID /CEPAL, Washington DC.

Solanes Miguel, González-Villareal Fernando, 1999, TheDublin principles for water as reflected in a comparativeassessment of institutional and legal arrangements forintegrated water resources management. TAC Backgroundpapers 3, Global Water Partnership, Stockholm.

Stavenhagen Rodolfo, 1994, Indigenous rights: some conceptualproblems. Indigenous peoples, Experiences with self-government,Willem Assies and André Hoekema eds., University ofAmsterdam and IWGIA, Copenhagen, Amsterdam.

Stavenhagen Rodolfo, Iturralde Diego eds., 1990, Entre laley y la costumbre. El derecho consuetudinario indígena enAmérica Latina. Instituto Indigenista Interamericano eInstituto Interamericano de Derechos Humanos, Mexico City.

Tipton John, 1988, Institutional factors influencing publicsector decision-making on the management of Andean riverbasins. Management for the development of high-mountainriver basins in the Andean región, CEPAL, United Nations,Santiago, Chile.

Vincent Linden, 2002, Water rights, livelihoods andempowerment. www.indigenouswater.org, WALIR,Proceedings International Seminar on Water Law andIndigenous Rights, March 2002, Wageningen.

WALIR, 2002, Water Law and Indigenous Rights:www.eclac.cl/drni/proyectos/walir

Whitaker Morris D, 1992, El rol de la agricultura en eldesarrollo económico del Ecuador. IDEA, Quito.

Zoomers Annelies, Haar Gemma van der (eds.), 2000,Current Land Policy in Latin America. Regulating land tenureunder neo-liberalism. KIT, Amsterdam.

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The issue of water is one of survival for the iBesao (people of Besao), whoconsider themselves the stewards of water, land and forests. Traditionalmanagement of water resources is closely associated with religious beliefsin nakinbaey or spirits of nature. The nakinbaey inhabiting water sourcesare believed to be responsible for producing water. It is thereforeimperative for people to prevent nakinbaey from leaving, by observingculturally prescribed behaviours: the inayan. Inayan, literally meaning“beware!”, governs the day-to-day behaviour and relations of Besaopeople and embodies Besao custom law.

Ellen P. Dictaan Bang-Oa is a Kankanaey-Igorot from Besao, Mountain Province, the Philippines. Shehas been working on indigenous peoples' concerns for many years and is currently a member of theresearch staff of Tebtebba, Inc.

[email protected]

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Besao: a brief profile

Besao, one of the municipalities of MountainProvince, has a population of 10,067 people(NCSO, 2000) living on a total land area of 107.8square km. The altitude ranges from 400 to 2,364m above sea level. Based on Department ofEnvironment and Natural Resources categories,all of Besao’s lands are forest, of which 52% isfurther classified as forest reserve, 26% as timberland and the remaining 22% as unclassified forest.The Department of Agriculture, on the otherhand, reports that 10% of the municipality’s totalland area is used for agricultural purposes, while88.6% are grasslands and wooded forests (SRA-MBN Operationalization Plan, 1997).

Map of the Cordillera Region in Northern Philippines

The people of Besao (iBesao) are of theKankanaey ethnolinguistic group. They are basi-cally engaged in paddy and kaingin agriculture(swidden agriculture) for income. Besao is one of

the highest producers of rice in the province butdoes not produce enough to supply the totalneeds of the municipality. Other agriculturalproducts include root crops, citrus fruits, banana,corn and coffee as well as vegetables like cab-bage, beans and legumes. Additional resourcescome from backyard livestock raising.

The Besao people have six major uses for theirland, namely: croplands, grazing areas, culturalsites, forests, hunting grounds and residentialareas. The croplands are the main source oflivelihood, and include the payew or irrigatedpond field for rice production and the uma orthe non-irrigated kaingin for other crops, likelegumes, root crops, fruit and vegetables.Forests are further classified in Besao as eitherbatangan (pine forest) or kallasan / pagpag(mossy forests).

Traditional respect andownership regimes

Tiga-ipugaw nan danum… maanap; mawada…tumayaw nu maukos…, Et no pay mamid, intoyken tako pay?(Water is like man – it can come out… it runsaway when displeased. If water disappears, whatdo we eat?)

IBesao representations of water reflect theirhigh regard for water: they see it as life itself. Itneeds sustenance in order to perpetuate itself,as well as man. This notion is embodied in theconcept of nakinbaey, which is literally trans-lated as ‘inhabitant’. The inhabitant refers to asupernatural being or spirit, attributed to mostwater sources and other sacred / ritual sites inBesao. Among the Besao people, the nakinbaeyis believed to be responsible for producing water.To guarantee the water supply, therefore, thenakinbaey has to be prevented from leaving. Thisrequires people consciously to respect the waterby observing culturally prescribed practices.

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Sustaining water out of respect for life – © E. Bang Oa

Anything that has to do with death is repulsive tothe nakinbaey. People transporting dead humanand animal remains, for example, do not passnear water sources. Butchering animals, espe-cially dogs, near an ‘inhabited’ water spring isconsidered disrespectful towards the watersource. Community members in mourning avoidwater sources for about three years. They have torequest the services of other community mem-bers for their water needs. The iBesao consciouslyavoid spitting or using soap near water sources.

It is prohibited to graze animals near or abovewater sources. Fields above water sources aretilled manually, without the use of water buffalo(carabao) for plowing. The breath and excreta ofcattle are believed to be repulsive to the nakin-baey. In Gueday, the community also prohibitsgrazing and using carabao in the fields at the footof Mt. Mong-o. Cattle excreta are considered tobe repugnant to the spring there. Mt. Mong-o isalso believed to be home to their pinading (asupernatural being).

These culturally proscribed behaviours are all partof the inayan or lawa concept that governs theday-to-day behaviour and relations of the Besaopeople. The people themselves have defined theinayan concept as the embodiment of Besao cus-tom law: “Our customary laws are embodied inthe inayan or lawa, which discourages any act thatcauses harm to anybody or anything, and forbidsthe violation of norms. It appeals to one’s con-science to judge the rightness or wrongness ofwhat one does or plans to do and cautions the per-son through some form of ‘punishment’, to be car-ried out by Kabunian (god), for wrongdoings. It is

a simple ‘do not’ command that is replete with val-ues, like respect for other people and nature, jus-tice, morality, harmony, sharing resources andhelping one another, among others…” (BesaoAncestral Domain Management Plan, 2000).

Displeasing the nakinbaey results in it abandon-ing the area, or what is locally described astumayao (to fly away / to evaporate) or mammid(to disappear). Old people in Besao can recall twowater sources that are believed to have abando-ned the area sometime in the early 1940s in thisway. According to Galeled Anosan (over 85 yearsold, Besao), Betak used to be one of the sourcesof domestic water for Besao proper. During thewar, a man from Tadian seeking refuge in thearea reportedly butchered a dog near Betak. Ayear afterwards, Betak dried up. Mariano Martin(85 years old, Besao) recalls the water source inKinpit-ek, which was believed to have gone toIlocos (a neighbouring province) as the nakin-baey reportedly told a men-sip-ok (shaman).The community sent representatives to Ilocos tocall the water back to Kinpit-ek, by performinga ritual in the area. They killed a chicken, recit-ing a prayer for the water to return. They thentook a cup of the water away with them, emp-tying it in Kinpit-ek. But the spirit of Kinpit-eknever returned.

If it does not leave the area when offended, thenakinbaey is believed to produce less water, orcause stomach problems among the users. Thevolume of water from most sources has report-edly been decreasing. Old persons attribute thisto the non-practice, for about 60 years now, ofthe legleg, an appeasement ritual.

OwnershipMaid kenkuas nan danum. Kuan am-in ay ipugawnan danum…(Nobody owns water. Water belongs to everyone.)

Water is considered as a shared resource thatcannot be privatised through contemporarywater rights instruments. While ownership iscommunal, priority rights to water systems arevested in the community or farmers who firsttapped the said system for their use. Naturalrights are also claimed by the community livingwhere the water naturally flows. No one is

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allowed to divert water from its natural course,nor from existing irrigation systems, without con-sent from the community or communitiesdepending on it. With agriculture as the main-stay of life in Besao and rice as the staple food,water is regarded as highly as land.

In cases where water sources are found withintraditionally-held private lands, the land-ownerhas all rights to the land, but not to the water. Hecan only have priority use of the water. He cannotdivert or stop the flow of the water at his owndiscretion. A case in point here is the Kapuseansource in Suquib, which is found within a rice fieldbelonging to Gan-i. Gan-i and his present descen-dants have been blessed with a water sourceright in their rice field. This means he can plantrice all year round if he wants to. But the spiritualrespect for water, together with communityrights to own and access the water prevailed overGan-i’s rights. As Joaquin Anosan of Suquibrecalled, all the farmers using the Kapuseansource downstream of Gan-i’s field agreed to givea part of their harvest to Gan-i, to compensate himfor his lost opportunities in not farming his field.Today, Gan-i’s grandchildren have been allowed touse the rice field, but are restricted by the commun-ity from using farm animals for tilling.

Rights to access and use of water for irrigationcome with the right to land. The transfer ofwater rights follows the transfer of land owner-ship, through sale, barter or inheritance.

Water management systemsBased on Besao municipal data, there are a totalof 51 potable water sources in Besao (MHO,1992) and 88 irrigation systems. Most of thesepotable water sources are springs and creeks,while rivers are the main source of irrigationwater. Based on municipal assessments, 73% ofthe total population has access to domestic watersupply, where access is defined in terms of suffi-ciency and potability.

Irrigation Nan ikak-an isnan danum, ay waay initdon diKabunyan isnan ipugao id idi…Maid kenkuasdanum; kuan am-in ay ipugao. Paypayew nankinkua’s nan danum. Nan payew nan kuan di ipugao.

(What we do with water has been taught by theGods to the people of old… Nobody can claimownership of the water. Water is owned by allpeople. The rice fields own the water. Rice fieldsare owned by man…)(Galeled Anosan, 85 years old, Besao East, March2003).

Out of the 88 communal irrigation systems listedby the municipal agricultural office, 78 are classi-fied as ‘private’, meaning that they were pri-vately constructed by the farmer / user. A closerlook into these private irrigation systems revealsthat they are the traditional irrigation systemsused by the parents and /or grandparents of thepresent owners.

To illustrate the traditional water management sys-tem that still prevails today, let us take a look atKapusean in Suquib. Kapusean is a spring located inone of the corners of Gan-i’s rice field, above theresidential area. It is believed to be inhabited by aspirit. Adults described Kapusean during their child-hood as kega nauneuneg and kaeegyat ay ilaen(seemingly very deep and fearsome when seen).

The Kapusean Water Source in Suquib, Besao, Mt. Province:

located in a privately-owned rice paddy – © E. Bang Oa

Kapusean is a traditional irrigation water source,which presently serves 15 ha. of rice fieldsbelonging to 219 farm-owners. Its outflow isdivided into two irrigation systems, called

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Kapusean East and Kapusean West. KapuseanEast serves some 5.5 ha. of rice fields owned by 99farmers, while Kapusean West serves 9.5 ha. ofrice fields, owned by 120 farmers (MunicipalAgricultural Office, 2002).

Kapusean Service Area: 15 ha. of rice land owned by 219

farm families – © E. Bang Oa

Apart from the mud retaining walls of the ricefield, no development has taken place atKapusean. Small intakes were made in the wallsin the left and right sides of the rice field, todirect the water to the rice fields downstream.Each of the rice fields downstream has a wateroutlet to direct water flow from one field to thenext. These outlets are carved into the mud orstonewalls of the rice field and may be supportedby a wooden or bamboo trough.

The main irrigation canal – © E. Bang Oa

Through use, Kapusean is therefore ‘owned’ byall the farmer-irrigators along the down-flowfrom the spring. Farmer-irrigators using a com-mon water source are grouped into a dumapat.

Diverting canal water from one field to another – © E. Bang Oa

In Kapusean, there are nine dumapats, namely,Lamagan 1, Lamagan 2, Bengdana, Kongkong,Tugtog, Kabatuan, Kapusean 1, Kapusean 2 andNapuki. These dumapats are informal organiza-tions, particularly concerned with the equitableaccess to and distribution of water. There is nodesignated head for each dumapat, but leader-ship is usually attributed to the knowledgeableelders and /or those who are articulate.

Membership and responsibilities Membership is based on ownership of land thatwas originally designated for irrigation in theestablishment of the irrigation canals, and alongthe down-flow of the water. Present-day farmer-irrigators can trace their families’ membership ofthe dumapat back at least four to five generations.

All decisions regarding irrigation water are takenat the dumapat level – from the establishment ofirrigation canals, and day-to-day maintenance, toconflict resolution. Dumapats are particularlyactive during the dry season, when water supplydecreases. At the end of the planting season, inJanuary to February, the dumapats start whatthey refer to as menpabala isnan danum, which isliterally translated as ‘to bring out water’. This isthe process of cleaning up, weeding and rehabil-itating structures in the water source area andirrigation canals, to facilitate the easy flow ofwater to the rice fields in preparation for the dryseason, that usually runs from March to May.Each member family of the dumapat sends atleast one representative to these cleaning-upactivities. Members who are not able to partici-pate in these activities are fined in cash or in

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kind. What or how much they contribute is usu-ally based on the absent member’s means. Inmost cases, an adequate ‘fine’ would be to pro-vide snacks or a meal for those who worked inthe irrigation system.

The decrease in the water supply during the sum-mer season prompts the dumapat to watch overthe equitable distribution of water to the fields,through a process known as mananum, whichmeans ‘to water’. (Mananum also refers to theperson doing the watering.) Watering the fieldsis done through the banbanes (turn-taking) sys-tem, where each dumapat member has a sched-uled time in which he / she can water his / herfields. In the past, the schedule was based on therising and setting of the sun. Today, it is conve-niently scheduled into two time slots: 6 a.m. to 6p.m. and 6 p.m. to 6 a.m. It takes about five daysfor each dumpat to complete a full banbanescycle.

During the banbanes, the dumapats have theright to divert the water flow in order to watertheir fields, but only within the specified timeallotted to them. Kapusean 1, for example, candirect all water flow to its penged, or canal, from6 a.m to 6 p.m on the first day. This is achieved bybuilding temporary mud walls that cut across thecanal(s), or temporarily removing the troughsthat supply water to other fields. During thesewatering periods, members of each dumapat areexpected to wait, and watch for their turn.

Once a field is filled up with water, the next field-owner makes sure that the temporary mud wallis removed to allow water to flow into his field.He also temporarily blocks the water from flow-ing away from his field. If a turn is missed, onehas to wait for the next cycle. Dumapats there-fore keep vigil to ensure that their fields arewatered.

Thus, in summer, it is common to see groups ofpeople watching over their fields day and night.At night, the mananum exchange stories, whileawaiting their turn. Sleeping during the watch –especially before one’s turn – and missing one’sturn are usually regarded as being slow and irre-sponsible. There is strict observance of the timesallocated for watering fields. Whether or notfields are fully watered during one’s turn, the

water has to be given to the next farmer in linewhen it is due.

To minimize crop loss due to water scarcity, farm-ers plant less during the dry season, according tothe estimated capacity of available water. TheiBesaos are also conscious of the need to keepthe water clean. Clothes and chemical / agricul-tural equipment are washed at a distance fromwater sources and bodies.

In the spiritual realm, all dumapats are expectedto perform the legleg annually during the startof the dry season, usually after planting.Traditionally, the performance of the legleg isbelieved to ensure continuous production orgeneration of water. The legleg is a cleansing rit-ual to appease and please the nakinbaey. Theseceremonies are usually officiated by communityelders with the participation of all water users,especially the dumapat (irrigator groups). Eldersand dumapats kill a chicken or pig near the watersource as an offering to the nakinbaey. After thesacrifice, the elders proceed to read the gall blad-der(1) of the sacrificial animal. Based on the read-ing, the elders recite a sapo or prayer directed atthe nakinbaey, calling on it to stay and not toreduce its flow, but instead to increase its waterproduction. They boil the chicken meat with itag(salted dried pork). When cooked, another sapois recited this time inviting the spirit to partake ofthe food. After eating, the elders and dumapatsmay proceed to a designated dapay(2). Here theykill another chicken and eat it before everybodygoes home and observes a ngilin for the follow-ing three days. Ngilin refers to the traditionally-observed rest days associated with the rituals andbelief system. In this instance, all those who par-ticipated in the legleg are expected not to workon the farm and are banned from death wakeswithin the three days period.

At the individual level, farmers used to performthe say-at after planting rice. This is a ritual per-formed by farmers to ensure the overall wellbe-ing of the plants. A chicken is killed beside the ricepaddies as an offering to the anito (spirits). Theaccompanying sapo basically includes an appealfor a continuous supply of water, on which therice plants depend (Ag-a, Bagayo, 2003).

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Domestic water supply All barangays (lowest political subdivision in thePhilippine government system) in Besao havetheir designated water sources for domestic pur-poses. Based on year 2000 municipal data, 73%of the total population has access to domesticwater through water works systems. Waterworks systems are community-managed. Eachcommunity is obliged to maintain and manageits water sources by cleaning and rehabilitatinginstalled pipes or tanks when needed. Each com-munity must also protect its water sources frompollution, forest fire and erosion. Most of thewater sources are found in the mountains out-side the settlement areas. Community initiativesto sustain their water supply involve fencing offthe water sources, supporting natural forestregeneration and voluntary reforestation.

Water is piped from the source into tanks in thecommunity. From the tank, water is eitherfetched or is piped into private houses. Peoplewho are not community members may fetchwater from the tank but are not allowed toinstall pipes to supply water outside the commu-nity or defined service area. Temporary arrange-ments about sharing water works services may beagreed upon between the family / communityconcerned and the user-community on occasionswith a high water demand, like weddings.

Conflict managementConflicts arising from irrigation water concernsare handled from the personal to the dumapatlevels. Most iBesaos do not remember any majorintra- or inter-community conflict over irrigationwater that has been settled beyond the dumapat.In Besao proper, community members can onlyremember petty disagreements, such as watertheft / diversion and ‘stealing’ a turn, as the usualcases of conflict in the area. These are usuallysettled between the victim and the suspect.Stories of physical aggression in the fieldsamong the mananum are common, though.There are stories of men and women in heatedarguments over untimely transfer or blocking ofwater. These may involve physical aggression,including women fighting in the rice fields.These confrontations and petty fights, in theeyes of the iBesao, are usually enough punish-ment for the guilty party.

Maintaining the watershed/ forest Besao is a watershed for the Abra river. Streamsand creeks flowing from the Angasan andBuasao watershed drain to the Layugan,Guinawang and Balas-iyan rivers, which are alltributaries to the Abra river. Water manage-ment involves the peoples’ recognition of therelationship between forest and waterresources and the manner by which the iBesaouse and maintain their forest lands. The iBesaohave a tradition of selective logging and make aconscious effort to regenerate forest cover, bymaintaining the pagpag (mossy forest) andbatangan (pine forest). The community obtainsits forage, fuel and timber from the pagpag,which also serves as hunting grounds. The mossyforest is communally owned.

The Batangan (pine forest)The batangan is the dominant pine forest in themunicipality, covering about 8,484 ha. in total,some 45.5% of the total municipal land area.

The batangan – © E. Bang Oa

The batangan are privately-owned, wooded lotsand are a major source of timber and firewood.A batangan may be individually owned, but mostof the batangan in the area are owned by theclan. This is known as saguda or ‘family / claninheritance’. All clan members have equal rightsto the timber resources in the batangan, basedon rules that vary from clan to clan, dependingon the availability of resources. Ideally, a memberis allowed to cut down about 3-4 trees at a timefor personal and immediate use only. A memberis expected to plant trees to replace those he hascut down. This same member will only beallowed to draw timber from the batangan again

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after about 25 years, when the next generationof trees is expected to have matured.

Protection and day-to-day management of thebatangan are the responsibility of the wholeclan, where each member keeps a mental note ofaccess and use. Where clan members havemigrated out of the Besao, the batangan are leftin the care of the elders, or any member remain-ing in the area. The caretaker takes day-to-daydecisions, ensuring that no member abuses hisown or another’s rights. Abuse of rights, con-flicts, punishments and other matters may betaken up during clan reunions. Cutting treesfrom individually or clan-owned pine lots with-out the permission of the owner(s) is consideredtheft. Owners can demand payment or confiscatethe wood that rightfully belongs to them. Non-members can borrow lumber from batanganowners. The loan is repaid in the form of trees orlumber, without interest.

Pagpag (mossy forest)The mossy forest remains a public domain inBesao and is used primarily as hunting grounds.Food supplements like honey, medicinal herbs,and raw materials for basket weaving, woodenutensils and implements may be gathered fromthe pagpag. The mossy forest covers some 4,379ha., mostly in the higher and steeper slopes ofthe distant mountains. Most of these areasremain free from agricultural expansion, but themunicipality reports that biodiversity is decreas-ing, due to unregulated hunting. Scatteredwithin the forests are cultural sites, such as ritualgrounds, sacred sites and areas believed to be thedwelling places of supernatural beings.

Emerging trends and issues

Depletion of the water supplyBesao has 51 sources of potable water, with atotal average daily discharge of 448,530 l. duringthe wet season and 353,470 l. during the dry sea-son. At the present total average daily consump-tion requirement of 402,680 l., the municipality

experiences a deficit of about 49,210.1 l. per dayduring the dry season which is felt most in themunicipal centre.

The iBesao have identified the following factorsas contributing to this situation:

• Failing to appease the nakinbaey throughthe legleg:As noted earlier old people in Besao attributethe progressive depletion of the water supplyto a failure to carry out appeasement cere-monies for the water sources. Over the past 60years people in the municipality have adoptedother, non-traditional beliefs or religioussystems.

In recognition of traditional practices andvalues, however, there is increasing commu-nity support for the revival of the legleg, asis reflected in the proposed ancestral domainmanagement plan.

• Forest clearing: The main causes of the depletion of forestresources are forest fires and indiscriminatelogging. Farmers may accidentally create forestfires when they start burning for kaingin.Farmers who graze animals also deliberatelyburn the forest cover in the mountains tofacilitate the growth of grasses for forage.There are reportedly some 104 ha. of criticallydenuded areas in Besao. (Municipal Profile,2000).

There is also increasing demand for woodenhousing materials and other commercialproducts, both within and outside the muni-cipality. This leads to unregulated logging,exacerbated by the ready availability ofchainsaws. Some owners are simply irre-sponsible. Unresolved boundary conflictsbetween the Besao and the municipality of

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Wet season

Dry Season

AverageDischarge(litres/day)

448,530

353,470

Surplus(litres/day)

45,850

Deficit

49,210

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Tadian have also contributed to unregulatedlogging by people from Tadian forest areastraditionally managed by Besao.

To curb this progressive trend towards defor-estation, formal and traditional initiativeshave been undertaken. Local governmentdecrees ban the transport of timber outsidethe municipality, and prohibit the burning ofmountainsides, with fines for violators. Inter-barangay policies have also been drafted, sothat each barangay has its own area ofresponsibility in terms of fire prevention andlogging control. A barangay is accountablefor any forest fires that can be proven to havestarted from its side or territory. This is a rein-forcement of the mendepdep (‘putting outfires’) or the traditional voluntary effortamong community members to be vigilantabout forest fires, especially when propertieslike granaries, timber, fruit trees, animalfences and houses are involved.

Planned reforestation and other actions thatencourage the natural regeneration of treesin forest and batangan areas are traditionalpractices among the iBesao. A local govern-ment program started in the 1930s has lentinstitutional support to these traditions. TheMayor at the time, Abundio Gawigawen,encouraged the planting of tree seedlingsnear settlement areas to provide firewood,as shown in the timeline above. Inter- orintra-barangay communal forests have alsobeen established. One of these is the Lagatcommunal forest, established, co-owned andco-managed by the Lacmaan, Ambagiw,Gueday, Agawa and Tambuan barangays,under agreed rules and regulations.

These initiatives, however, continue to bechallenged by the prevailing need for cashincome to support socio-economic needs likeeducation, health and shelter. Developmentinitiatives, such as mining and tourism poseother challenges.

• Expansion of commercial vegetable produc-tion as a promising source of cash income:Commercial vegetable production hasextended the use of agricultural lands, there-fore intensifying the demand for water.

Commercial crops grown in the municipalityare temperate vegetables, such as carrots,cabbage, beans, peas and green peppers,which are marketed either in Benguet or inthe Isabela provinces. Other high-yield cropvarieties have also been introduced in the areaas promising cash crops.

• Inadequate and inefficient infrastructuresupport:This refers to a lack of water reservoirs and acomprehensive distribution system, with result-ing inequalities in the supply of domesticwater, in particular. With the depletion of thewater supply in the dry season, domestic watersupply scarcity is felt especially in the built-uparea of Kin-iway. Kin-iway serves as the munic-ipal centre, and is where the municipal govern-ment offices, hospital, two schools, the marketand business establishments are located.

In addition, the relocation of people to Kin-iwayfrom the interior and other areas for jobs andother opportunities also contributes to thehigh water demand there. Though supplied byone of the biggest water sources in themunicipality, water loss is believed to be high,given the distance it has to travel.

• Overlapping claims:The people of Besao, like most indigenouspeoples in the country, are denied their rightto fully own and manage their ancestral landsunder the Regalian Doctrine, which is theframework of national policy. In addition, thewhole Cordillera region has been declared aforest reserve, through the enactment ofPresidential Decree 705 (Philippine ForestAct) in 1975.

At the local level, there are disparitiesbetween the territorial definitions of localgovernments and the areas traditionallydefined and managed by the people. Withthe implementation of the IndigenousPeoples Rights Act (RA 8371) of 1997, theseconflicts have become very pronounced.Besao claims ownership of the Buasao andthe Banao water sources, stating that they liewithin its ancestral territory, based on tradi-tionally managed areas and the naturalwater flow. This claim is being contested by

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the neighbouring Sagada municipality, in itsown efforts to delineate its ancestral lands.

• Proposed development of tourism, loggingand mining in the area:The municipal development plan has identi-fied tourism, logging and the mining industryas “alternative development strategies”.These activities will mean increased competi-tion for water and other resources. Withoutpeoples’ conscious and vigilant participationin the development processes, their rightsmay be usurped. The community’s free andprior informed consent should therefore besought before any development initiativesare undertaken.

Recommendations

Based on the observations and discussions in thispaper, I propose the following recommendation.

Among us indigenous peoples, let us strengthenour organizations and networks from the local tothe international levels to:

• Defend our lands and resources fromencroachment and the usurping of our rightsto determine our own development;• Define and promote an indigenous perspec-tive on water and water development;• Strengthen existing indigenous peoples’global networks to act as a watchdog forwater resources and concerns; • Build on our skills and capacities to docu-ment our territories, practices and values inview of a more intensified educational cam-paign about our rights to own, manage andcontrol our land and resources. In this regard,we should establish a database of indigenoustraditional technologies and managementmethods, as well as rights and access to ourwater resources;• Develop our traditional institutions andskills, to negotiate and pursue our rights ofaccess to our water sources and their devel-opment, based on our own plans.

Thus, for the remaining watersheds and naturalresource areas to be sustained in the light ofsecuring food production, contributing to curb-ing the progressive climate change phenomenonand furthering its commitment to upholdinghuman rights, the government of the Republic ofthe Philippines and its agencies should:

• Fully recognize indigenous peoples’ right toself-determination and their inherent rightto their ancestral lands by strengthening theIPRA and having the political will to imple-ment it fully;• Institutionalise the recognition andstrengthening of traditional water owner-ship, rights and management systems and thelocal initiatives for sustainable developmentof water and other resources; • Provide appropriate support services forsustainable economic activities that do notcontribute to unbalanced natural resourcedepletion and extraction;• Ensure that development interventionsbuild on the capacities of indigenous peoplesfor participative planning and governance.

At the international level, we call on govern-ments, financial agencies, donor communities,the media, academia and civil society organiza-tions to:

• Ensure that the water agenda is not treatedmerely as a stakeholders’ concern. Water, as anon-renewable, natural resource and thebasic element of life should be includedunder the rubric of human rights. In thisregard, the United Nations should adopt theUniversal Declaration on the Rights ofIndigenous Peoples;• Recognize indigenous peoples’ right to ownand manage their ancestral and traditionallands and territories, including all resourcestherein; • Support the strengthening of indigenouspeoples’ organizations and networks todefine and promote an indigenous perspec-tive on water and sustainable water develop-ment;• Promote indigenous peoples capacities tomanage their own territories sustainably,through research and documentation ofeffective practices and technologies;• Build capacities of indigenous peoples tocarry out research and to document their

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experiences and duplicate their good prac-tices with regard to water;• Develop economic programs, activities, andalternative technologies that promote watersustainability; • Stop trade and privatisation of water.Instead, develop equitable and efficient watersupply and distribution systems and serviceswithout prejudice to the prior rights of theowners of land on which the resource is found;• States, banks, finance agencies and donorcommunities should institutionalise watersustainability by refraining from fundingwater extraction and polluting developmentinitiatives. In line with this, a participativereview of existing development initiativesaffecting water quality and quantity (e.g.mining, tourism and commercial agriculture)should be undertaken towards the creationof more sustainable development directionsand reforms. Governments, private corpora-tions and any other entity responsible for thedestruction or pollution of water and itssources should be held accountable.

ENDNOTES (1) the reading of the gall bladder is one of the characteristicfeatures of Igorot rituals where the position of the gallbladder in relation to the liver is considered an omen. In thelegleg, a delway, where the gall bladder is not covered by theliver, is the best reading. This indicates continuous watersupply for the season.

(2) Dap-ay. Refers to a ground level structure which serves asthe physical base of the council of elders where communityrituals and ceremonies and public i.e social, economic andpolitical functions are performed. The dap-ay also serves as amen’s dormitory where young men are taught by the eldersmainly through story telling.

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REFERENCE LISTBesao Municipal Profile 2004 (draft).

Besao Municipal Profile, 2000.

Brett June Prill, Stonewalls and Waterfalls: Irrigation andRitual Regulation in the Central Cordillera, NorthernPhilippines. Hutterer KL, Terry Rambo A and Lovelace G eds.,Cultural Values and Human Ecology in Southeast Asia:Papers on South and Southeast Asian Studies 27, Universityof Michigan, USA.

Besao Ancestral Domain Management Plan, 2000.

SRA-MBN Operationalization Plan, Besao, Mt. Province, 1997.

Primary sourcesAg-a Bagayo, March 2003, 69 years old, Suquib, Besao, Mt. Province.

Anosan Galeled, Februaru 2003, 85 years old, Besao East,Besao, Mt. Province.

Anosan Joaquin, February 2003, 68 years old. Suquib, Besao,Mt. Province.

Dao-ey Elena P, February 2003, 62 years old. Besao West,Besao, Mt. Province.

Kinaud, February 2003, 64 years old, Besao West, Besao, Mt.Province.

Mangangey Annie, February 2003, 55 years old, Suquib,Besao, Mt. Province.

Martin Mariano, February 2003, 78 years old, Besao West,Besao, Mt. Province.

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Nong-Goubi! Nong-Goubi!Saari KambongTuirel Leinaasé

(Nong-goubi! Nong-goubi! Engrossed in house-keeping, come let’s make our water-way.)

Debabrata Roy Laifungbam is Director of Health Development and Human Rights at the Centre forOrganization, Research and Education (CORE), Manipur, India. He coordinates various cross-sectoralresearch projects on public health, environment, human rights and gender and has participated inseveral international meetings to advocate ethnic minority rights.

Anna Pinto is Director of the Women and Children division at CORE. She is actively involved in theadvocacy of indigenous women’s and children’s rights.

[email protected]

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The ancient rhyme and folk-story reminds theMeitei of Manipur, India, of the Nong-Goubi(‘rain-thirsty bird’ or crow-pheasant) – a totembird of the Meitei Nation (Manipur) – who wastoo busy looking after her children to take partwhen all the animals, birds and people wereworking to maintain and clean the ancientwaterways (tuirel, khong, khongbaan) and dykes(torbaan) system. These made human habitationand agriculture possible in the Manipur orImphal valley – the ancestral lands of the Meitei,occupying a central watershed in the Indo-Burmaregion. In the story, Nong-Goubi was punishedand prohibited from using the water and had towait for the rains each year.

The 2000 square km. Imphal valley, originally alake fed by numerous rivers from the encirclinghills, is drained by a single river, the Imphal river,to the South of the valley. Over a period of time,according to the oral histories of the Meitei, thevalley partially dried itself out and was settledpermanently by people of the surrounding hills,who later evolved into the Meitei people. Over aperiod of decades, settlers then proceeded toharness the waters of the valley, channelling themajor rivers into more permanent courses,deepening the permanent courses of the waterchannels and constructing massive earthworkdykes. The subject is dealt with comprehensively inan ancient treatise called tutenglon (the scienceof waterways management).

Some lands were reclaimed as permanent dryland for agriculture and habitation, some wereleft open to seasonal flooding so as to facilitatewet rice agriculture, and some areas retained aspat or reservoirs of water, with the capacity toabsorb the annual monsoon floods and conservethe source of water through the dry months.

The greatest such reservoir is the Loktak-pat tothe South of the valley, from which the ImphalRiver drains the entire valley. This is now almostthe only such wetland left, though there weremore than two hundred recognized and namedwetlands in oral and written history. The Imphalvalley is therefore not merely a natural feature ofgreat environmental importance but one of thegreatest artifacts of the Meitei nation.

Water is not only an everyday preoccupation ofthe Meitei. It is a central element of theSanamahi Pakhangba ancestral belief system,that the Meitei have been practicing for millen-nia. The belief is based on ancestor worship withstrong elements of animism.

Sanamahi and Pakhangba were brothers, ancestraldeities of the Meitei. Together and individually,these two ancestors occupy the supreme malepositions in the Meitei pantheon along with ImaLeimarel, Yumjao Lairembi, Panthoibi, Phouoibi,Emoinu (Chahong Ngahongbi, the munificentand bountiful) and other female ancestors.

Pakhangba is revered by the Meitei because ofhis political and social significance, particularlyfor the development of the Meitei as a nation ofseveral different tribes towards the end of thefirst millennium, according to the estimatesmade using the western calendar system. Thefirst chiefs of the Meitei, called Meidingu, werenamed Pakhangba (as a title).

The first Pakhangba, also known as Nongda LairenPakhangba (the Dragon or Serpent) is believed totake two forms, one divine and one human. Thehuman form had significance in the political his-tory of the Meitei nation, in the making oftreaties, agreements, and alliances between themany indigenous tribes of the region.

The divine form is significant to the spiritual lifeof the Meitei as individuals and as a society.Pakhangba in its divine form is a water serpent ora dragon. His element is water.

The link between water and important ancestorswho presided over political, social and religiousmatters, is significant. A very brief overview ofthe aspects of Meitei life, lands, waters and ourenvironment is useful for understanding itssignificance.

The Meitei nation was forged by alliances andtreaties between more than nine different tribes,who still maintain their individual identity, but ina subdued form – subsumed under the pan-Meiteination. Some of these clans originated from sep-arate tribes whose initial settlement of the valleyby legendary ancestors is marked along keywaterways. For example, the Pleiades, the seven

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sisters of the sky, journeyed along the Iril riverwith Iril and gave birth to the ancestors of theSarang-Leisangthem clan, one of the componentclans of the Meitei nation and also a precursor ofthe Kabui people in the nearby hills.

The Meitei established its ancestral domain in thecentral region of what is Manipur today in abroad high valley that used to be entirely coveredby lakes and wetlands (paat) and water channelsor tuirel. The settlement of this valley involvedsophisticated hydraulic engineering, informed bya deep understanding of the hydro-dynamics ofthe valley, which was extremely hostile to humanhabitation and cultivated food production.

The precise origins of human habitation of thevalley have not yet been determined, but it isclear that there were several waves of occupationat different periods, many of these pre-historic,some ancient and some of later date.

Extensive settlement and what may be clearlyidentified as a civilization and culture, wasachieved at the latest by the 7th and 8th centuriesduring the time of Taothingmang andNaothingkhong, two brother chiefs, whotogether devised and engineered an extensivesystem of canals and dykes throughout the valley.This of course made intensive settlement possi-ble. The canals and dykes were designed in agrid, running precisely from North to Southacross the valley and with connecting channelsfrom East to West. The only deviations are wherelarge natural features like hills in the middle ofthe valley intrude in the line of the dykes orwhen the natural course of the rivers stronglydeviates from a straight line.

Meitei architecture, therefore, traditionally didnot only encompass house or building design andprecepts, but laid down strict norms for the plan-ning and layout of settlements, in relationshipwith the ubiquitous grid of canals and channels.Meitei longhouse settlements were built withevery house facing east. Every house thereforehad direct access to flowing water for domesticneeds as well as for maintenance of kitchen gar-dens and fishing. Maintenance of this systemrequired very careful and regular attention,which was achieved again through the spiritual,cultural and social institutions of the Meitei.

These institutions are entrusted primarily to theMaibi, the institution of Meitei shaman priest-esses that also occupied a high political profile byadvising the chiefs on temporal matters, rev-enue, war and peace negotiations, domesticarrangements, and as oracular advisors of indi-viduals and the collective.

The Maibi Loisang, a formal college or institutionof the Maibi, is the repository and vehiclethrough which the Meitei cultural, spiritual andsocial – including traditional – knowledge istransmitted from generation to generation. Thisis done in many ways but the most important isthe prolonged annual ritual worship, called theLai Haraoba or the ‘Happiness of the Ancestors’.

During the Lai Haraoba, different clan and tribalancestral deities, called Umang Lai or forestdeities, are worshipped through complex andstrictly ritualised ceremonies and devotional acts.The community participates as a whole, butwomen, men, youth and children also participateas segregated groups. It is through these segre-gated groups, partaking in the Lai Haraoba, thatthe Maibi impart traditional cultural and techno-logical knowledge and values.

The deities are always derived from and return tothe waters, channels and wetlands at the begin-ning and end of each Lai Haraoba. The spirits ofour ancestors are in communication through thevehicle of water and rivers. This is one of the coreelements of the Sanamahi Pakhangba worshipamong the Meitei.

In every household, a place is kept sacrosanct andspecial for Sanamahi, the revered brother ofPakhangba. An earthen pot filled to the brimwith water from the rivers or canals is alwayskept in the Sanamahi kaa-chin (corner) of everyhome. As a symbol of the great mother Leimarel,an earthen pot filled with water and coveredwith fine sacred muslin is placed at the secondthird of the length of the Meitei longhouse, atthe main support pillar.

Not only is water a sacred symbol to the Meitei asa core element in every ritual from the domesticand social to the greater public festivals, but waterbodies themselves are held to be the manifesta-tion of deities. Thus, to the Meitei, the Loktak is

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not merely a sacred lake, but the embodiment ofthe goddess (lairembi) Loktak herself. So too arethe various waterways, such as the Iril or theNambol. Natural conjunctions of hills and waterbodies are held to be particularly sacred and thetraditions require the complete protection of floraand fauna in such spots. Even minor harvesting ofproduce is strictly taboo, except for ritual or spe-cially sanctioned medicinal purposes.

The ancient waterways and dykes of the Imphalvalley served many important purposes in addi-tion to land reclamation and water managementprocesses. Up until less than a hundred years agoit was possible to cross the valley, foothills tofoothills, north to south, by water. Considerablecultural and social interaction between clans andtribes otherwise separated by extensive, incon-venient wetlands – which are even more difficultto negotiate in the long wet seasons – was fos-tered by this transport system.

The importance of this system is marked by theannual boat festival, Heikru hidomba, held in themoat encircling the one square mile of theKangla fort. This is the most sacred site of theMeitei people, and the seat of many of its shrinesand traditional governance institutions, theheart of the water channels network. The cere-mony of the boat race dates from the 9th centuryand is held towards the end of the rainy season,when the waterways are at their highest. There isan ancient treatise on boat building, includingthe construction of ceremonial boats, whichdeals not only with the craft, but also with the artof boat building and navigation. In times ofdrought the chiefs of the Meitei and Angomclans are required to perform rituals from sacredceremonial boats in order to propitiate thedeities responsible for rain. Depending on theseverity of the drought, various ceremonies ofdifferent elaborateness are performed in andwith regard to the ceremonial boats, to invokeadequate rain.

Water plays an important role in the humblerrituals of day-to-day life as well. Potable waterfor the household is generally fetched everyevening by the marriageable girls of the Meiteihousehold. Since such water sources have nottraditionally been distant or inaccessible, thechore is not generally considered a task of heavy

labour. The young girls perform it after bathingand dressed in fresh clothes with fresh flowers intheir hair. They usually go in groups, making it asemi-recreational activity. Preliminary courtingbetween young men and women frequentlytakes place during this chore.

Bathing itself is a social ritual, with pleasantrecreational overtones, again given the proximityof good water sources. Traditionally, youngwomen also perform this ritual in groups, typicallyhelping each other wash their hair.

The maintenance of water bodies, both pondsand streams, including canals, is also extremelyimportant because fish is an integral element inthe Meitei diet. Until a few years ago even in thecapital of Imphal, the smaller canals around thehouseholds were well maintained and women’sfishing nets could be seen placed in the water tocatch a few fish for the next meal. In addition tothe fish, a wide variety of water vegetables andinsects, including rare mosses and fungi comple-mented the traditional diet. The traditionalMeitei household was therefore comfortably self-sufficient in food, which required little effort inharvesting and none in cultivation. This wealthfrom the waters of the valley might have con-tributed to the development of the complex andsophisticated culture of the Meitei people, in thissmall valley which is almost inaccessible, except tothe determined traveller.

Another element is the maintenance of waterbiodiversity and prosperity through worship. Theindigenous ngamu, a small fish, is very significantto the Meitei. The ngamu is very sensitive tounclean water and cannot survive in pollutedwaters. Every year, the Meitei perform a ritualcalled Ngamu üssin sin-ba (he replacement of thengamu), when fingerlings are released in everywater body to bring prosperity to the people. Thengamu thus symbolizes renewal and prosperity,making it an important item in the medico-nutritional practices of the Meitei. The ill andaged, expectant and new mothers, weaninginfants or children who are not thriving eat thisfish as a healing food since its nutritional andmedicinal qualities are highly prized. Maintain-ing water bodies for this food alone is thereforecritical to preserving the traditional pharma-copoeia and diet of the Meitei.

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The system of watercourses, earthen dykes andwetland reservoirs was maintained through a dualsystem of taxation and voluntary communitylabour. The most important traditional tax of theMeitei was the lallup, misinterpreted by theBritish as a slave system and abolished. Accordingto this tax, every able-bodied man between 16and 40 years of age was required to contribute40 per cent of his annual labour to the chief. Intimes of war, this labour usually implied militaryservice. Some, particularly those who were giftedor skilled in a particular craft or art, wererequired to make those particular skills available.In times of peace, the vast majority were requiredto contribute their time to developing and main-taining the major earthworks and de-silting themain water courses. Youth in each locality wererequired by custom to volunteer their effortsannually for repairing, extending and cleaningthe smaller parts of the system in their own com-munities.

The previously well-preserved wetlands each hadtheir own well-known and beloved characteris-tics. The Loktak-pat of course, with its uniquefloating islands of grasses and once-thriving,flora, fauna and aquatic species, is the homeand birthplace of an exquisite sub-culture ofthe Moirang people, who retained politicalindependence from the Ningthouja chiefs untilthe 13th century. Epic poems have been writtenabout the heroes and heroines of this exeptionalplace. It may be emphasized that, despite theLoktak being declared a Ramsar site in danger bythe World Conservation Union (IUCN), despiteannual flooding that wreaks havoc among theagricultural population and more recently theurban population, the government has devisedno policy for the protection of wetlands, nordoes there appear to be any intention of doingso. Regretfully, this is now almost the only suchreservoir that remains even partially. Others havefallen prey to land claims for unplanned urbanexpansion in the last few decades, or fallen intoneglect because of the feeder channels thatreplenished them.

Other pat, such as the Khonghampat werefamous for the miles of pink, white or purplelotus flowers that bloomed in their seasons. Thesocial rituals of going to view the lotus in bloomin these pat, rather like the annual viewing of the

cherry blossom in Japan, has now died with thedestruction of the wetlands themselves. Thepoetry and songs have become irrelevant andmeaningless to those who have never seen theblooming courses.

The growing distancing from, neglect and ero-sion of these daily and annual cyclical practices ofthe spiritual and cultural basis of Meitei andwater relationship has threatened our societyand environment, and led to the severe andapparently irremediable crises we face today, cul-turally and economically.

The degradation and destruction of this uniquevalley is not merely the story of neglect and pop-ulation pressures. Inappropriate governmentpolicies as well as disregard and callousness inpolitical attitudes actively promote it, whether ornot this is conscious or deliberate. Constantappeals and pressures from concerned environ-mental groups and heritage lobbies are disre-garded. The wetlands of Manipur are being rap-idly and ruthlessly destroyed by a political andeconomic elite backed by government policy,however inexplicit, to ‘reclaim’ as much land aspossible for urban and agricultural expansion.

The indigenous Meitei religion, with its stronganimistic and ancestor worship elements hasalways maintained extensive natural groves asshrines to various deities across the valley. Thesehave been important ecological assets, sincemost of the lands are primarily grasslands andmarshes rather than dense forest. These grovesrepresent the major tree cover in the valley. Bothgrasslands and shrines of trees have been, in thelast few decades, carelessly destroyed with atotal ignorance and disregard for their cultural,economic and ecological value.

The value was and is priceless. Many of thegrasses provide raw materials for the construct-ion of shelter and furniture, as well as to providefood for humans. The grasslands and groves arethe habitat of a variety of wildlife, now extinct inthe valley or close to extinction, such as the tiger,elephant, boar, wild buffalo, and several speciesof deer, including the rare sangai or brow-antlered deer of Manipur.

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The valley is an important wintering area formany migrant birds, and the wetlands are hometo an immense variety of fish, minor fauna,insects and plants, that have great value toinhabitants as a source of food and medicine.

These are just a few examples of the Meitei’sspiritual relationship with water, a relationshipthat is in essence a cultural system of watermanagement, maintenance, purification andconstant affirmation of water as a core elementof Meitei life.

There are many reasons for this dissolution of thewater management systems. Recognition ofindigenous governance systems and authoritieshas invariably been faulty and selective on thepart of first British, and subsequently Indian gov-ernments and policies. The primary motivation ofsuch policies appears to be the revenue interestsof a select class, simplistic and inappropriateadministrative procedures, accompanied bylack of investment and upkeep at whatever costto the colonized. There have also been manygenuinely blind spots due to the overwhelmingfeudal, hegemonic and patriarchal characteristicsof European and Indian political authorities,which are fundamentally in contradiction withindigenous norms. The combination of neglectand vested interests by the Indian government inthis region is destroying one of the most uniqueecological and cultural areas in the world.

REFERENCE LISTAlderete W, 1999, The Health of Indigenous People. WHO,Executive Summary.

Bhagyachandra Singh L, A critical study of religious philosophy of the Meeteis before the advent of Vaisnavismin Manipur.

Centre for Organization Research and Education, Right to land and water in Manipur. A report of theviolations of the rights of the Indigenous peoples in thenorth east region of India.

Centre for Organization, Research and Education, 1999,Criticism and constructive submission regarding the study ontreaties, agreements and other constructive arrangementsbetween States and Indigenous Populations.

Chadda laihui (archival document).

Cheitharol Kumbaba (archival document).

Gangumei Kamei, A History of Manipur.

Govt. of Manipur, 1996, Manipur Forest at a Glance.Forest Dept., Imphal.

Kabui C ed., 1993, Ithai Barrage. All Manipur Ithai barragepeople’s organization, Manipur.

Kangleirol (archival document).

Kirti Singh M, Religious Developments in Manipur in the 18th and 19th centuries.

Manipur Association for Science and Society, Releasing Ngamu in Wetland Systems in Manipur.

McCulloh M, 1857, Valley of Manipur. Mrs. J.D. Marg, Delhi. Ningthourol Lumbaba (archival document).

Pinto Anna, 2000, Common property rights of indigenouswomen, north east region of India. Seminar paper Women’sStudies Conference 2000.

Pinto Anna, 1997, Gender and Sustainable Economics inManipur. Nitya Rao and Luise Rürup eds., A Just Right,Friedrich Ebert Stiftung, India.

Roy Burman BK, 1995 “Indigenous” and “Tribal” Peoplesand the UN and International Agencies. Rajiv GandhiInstitute for Contemporary Studies, New Delhi.

Singh N, 1976, The Manipur Administration (1708-1907).Friends and Co., Singjamei, Imphal.

Singh NT, Singh NK, 1975, Manipur and the Mainstream.Imphal.

Singh RK Ihalajit, 1965, A Short History of Manipur.RK Ihalajit Singh, Imphal.

The legend of Khamba Thoibi (oral archive).

Tutenglon (archival document).

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As a product of culture, the symbolization of water makes it possible totransform vulnerability and unpredictability into interdependence andcontinuity. The water imagery described in this paper expresses thefragility of life in a mountain desert oasis. Rituals make it possible totranslate an effective vulnerability and dependence on water into aconcept of mutual interdependence between people and water. In theexample described here, the villagers and ritual participants perceivewater as a response to people’s attitude towards nature. They believethat people can make springs rise up from the desert, mainly throughagriculture. Farmers are therefore not only the recipients of water andinterpreters of its meaning, but they also create this meaning throughtheir agricultural work and by performing folksongs, ceremonies andrituals.

Corinne Wacker, MA in International and Comparative Law, PhD in Social Anthropology, is a researcherat the Institute of Ethnology, University of Zurich, Switzerland. She is the author of several publicationson traditional water management.

[email protected]

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Introduction: the symbolicmeaning of waterThis paper describes the symbolic meaning ofwater in an oasis village called Tagmachig, in theBuddhist part of Ladakh in the Indian Himalayas.It illustrates the role of ritual in attributingmeaning to water in the landscape, throughoutthe annual agricultural cycle, and at times ofdrought or flood.

In the context investigated here, the main sym-bolic meaning of water is threefold: water isunderstood as a mirror in which people see theirown projections in clear, sacred lakes; inresponse to people’s behaviour, nature provideswater or reveals springs in the desert; and watersymbolizes the interdependence of people andnature, and the fragility of the existence andmaintenance of the oasis ecosystem in its desertcontext. Applying the approaches of Lévi-Straussand Victor Turner to this analysis enables us tounderstand the symbolism of water in a livingculture, from both a structural and an actor-centred perspective.

The symbolic meaning of water here displays thegenuine composition of a living culture, tailoredto the local ecosystem. The specificity results fromcombining local symbolism or ‘little tradition’,relating the experiences of daily life and villagedeities with the worldviews and cosmogoniesof ‘great (written) traditions’. The local imageryof water displayed in the landscape and in cere-monies is discussed in the historical context of thecultural exchange between Tagmachig and themajor cultural centres of Central Asia before theadvent of Islam. For more than two thousandyears, caravans passed near the village, comingalong the southern Silk Road. Shamans, yogins(1)

and monks were common companions of thetradesmen and have contributed to the localsymbolism of water that is transmitted as oraltradition through songs, hymns, mask-dancesand other rituals. The study is based on fieldworkcarried out in 1997 and 2003 with two Ladakhischolars: Tashi Rabgyas and Nawang TseringShakspo.

Tagmachig, an oasis on the Silk Road in Ladakh Tagmachig is an oasis of 480 people on the south-ern Silk Road that links Tibet and China, throughLadakh, with India. At the same time, it linksIndia – through Ladakh and the Takla MakanDesert – with Central Asia and Eastern Iran. Thevillage is located near the current borderbetween India and Pakistan in Kashmir, in theupper Indus valley in the Buddhist part of lowerLadakh. Before the India-China border in EasternLadakh was closed in 1962, when the Indus isfrozen in winter, the Tagmachig people used tocross the river in winter when the Indus wasfrozen and join the caravans with their two orthree dozen Bactrian camels, donkeys and yaks.They could barter spices, tea and precious stonesfor wheat, dried apricots and fodder. Some localentrepreneurs and pilgrims also ventured up toTibet(2) and Kashmir. But the closing of the borderinterrupted these two thousand year-old culturaland economic links. For the past two generations,Tagmachig village has become a dull, remoteplace. Situated in a military restricted zone and ina narrow gorge between high barren mountainslopes and the roaring Indus river, the village hasvery few tourists and visitors today, and manymen work in the army to complement the meagreincome from sales of dried apricots at the centralmarket places of Ladakh.

According to a local stone inscription translatedby Francke (1907), the name Tagmachig or ‘Tigerstage’(3) refers to the decision of the Tagmachigvillagers united under a local chief in the 17th

century, to surrender themselves to the Ladakhiking, rather than join the neighbouring Dard vil-lages which were integrated into Baltistan andforced to become Muslim in the great Ladakhi-Balti wars (1560-1640). Seng-gerNam-rgyal, theLion King of Ladakh and his Tiger lama thusbecame the patrons of this oasis. Ethnically, the480 Tagmachig villagers are either Indo-Iranians,Mon or Dard, or they belong to the Mongolpeople, who all became Ladakhi and MahayanaBuddhists (of the Drepung Kagyupa sect) whilecontinuing their traditional folklore, beliefs andrituals related to Bon shamanism(4), animism andlocal ancestor cult. The background of these dif-ferent traditions, intermingling in Tagmachig,inspires the symbolic meaning of water.

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Like many other oases in Central Asia, Tibet andthe Indian Himalaya, Tagmachig relies on theseasonal melting of high altitude snow for itsirrigated agriculture in the four short summermonths. It has severe cold winter months, withtemperatures below -20 degrees Celsius. Themain crops grown are barley, wheat and pulses.Apricots and walnuts are the principal cashcrops. The main village is situated at 2800 metersabove sea level on the delta of a small seasonaltributary of the Indus, which is Tagmachig’s mainwater source. Four additional portions of arableland used by the villagers are situated higher inthe mountains. Additionally, at 6000 metresabove sea-level, yak, sheep, horses and dzo(cow-yak hybrids) graze in summer. Tagmachig’sonly water source derives from a small glacierlake in this area, fed by the seasonal snow melt.

Hymns and folksongs are the main sources of thehistory and beliefs of the people of Tagmachig.One of their folksongs(5) tells of a mythical lake upin the mountains, and a cosmogony with threeworlds.

“If a white glacier on the upper end of thevalley is not formed, why should there be ablue lake at the lower end of the valley?If a lake is not formed at the end of thelower valley, why should a tree ofsandalwood grow there?If a tree of sandalwood is not grown there,what shall a cuckoo, the king of birds, sit upon?If a cuckoo will not come and sit on a tree,who will hear its melodious songs?”

The bird represents the fairy, which brought theoriginal seed-grains from the gods to the people,and thus abundance, wealth and happiness.The sandalwood tree is the Tree of the World,which links the upper world of the gods, withthe middle world of human beings and thelower world of the water deities. The symbolicmeaning of water is transmitted in Tagmachig inthe landscape along the watercourse and in theoral tradition, including songs, village cere-monies, and religious rituals by the people andby the specialists(6).

Tagmachig village is situated at a silk route branch along the

Indus river in Ladakh, Indian Himalaya. Apricots, wheat and

barley are dried on the roofs for winter. – © C. Wacker

The meaning of waterdisplayed in the landscape

Leaving the roaring Indus river behind and walk-ing uphill towards the Tagmachig spring, onepasses first through fertile barley and wheatfields, bordered by hundreds of apricot and wal-nut trees, and traverses the village with its cubichouses. One walks around the small Buddhistmonastery and the dwelling of the village god-dess, situated at the top of the village, and followsa footpath leading to a narrow gorge. One thenreaches the two springs of the roughly two kilo-metre-long watercourse of Tagmachig.

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The holy lakeThe springs of Tagmachig are fed by a seasonalglacier lake on the high mountain, behind the vil-lage. The lake is considered sacred because thosewho are lucky can see a swastika sign in its clearwater. One of the myths of creation told inTagmachig explains the origin of the world as aresult of a strong whirling wind, which formedthe holy sign of a swastika. Creation is under-stood in this myth as separation from an originalunity through a whirling force.

The springs, dwellings of water deitiesThe river once came straight from the glacier laketo the village. But about two generations ago, alandslide interrupted the flow of the river. Luckily,two springs rose thereafter from a pile of fallenrocks behind the village – these are the twosprings of Tagmachig. A wild rose bush grows atthe place where the first spring comes out of theground. The rose bush is said to be the dwellingof an eight-meter long, black, zoomorphic waterdeity, with the lower body of a snake, a Lhu-mo(feminine). The second spring emanates from arock near the roots of a fallen willow tree, some30 meters below. It is said to be less reliable thanthe higher spring and inhabited by a red Lhu(masculine). Two offering-places (Lhu-bang(7)) arelocated at this spring. Lhu and Sa-bdag, zoomor-phic spirits of the land, are vulnerable to theinterferences caused by farming, mainly from theiron plough(8), construction works and pollution.Together with juniper, a bush used as incense inall major rituals to purify the body or a site, therose bush and the willow are the only wild treesgrowing in Ladakh. The two water spirits thusdwell in the wilderness.

Water and the tree of the worldSome twenty steps below the spring a huge,fallen willow tree lies across the valley. Its rootsare more than five meters in diameter. The trunkindicates that the tree must be more than twohundred years old. It is a Lha-chang tree andnobody uses its wood. The second spring risesfrom a rock behind the roots of this tree. The Lha-chang willow tree symbolizes the Tree of theWorld. In the cosmogony transmitted by Siberian,Mongol and Tibetan shamans, the Tree of theWorld is understood to have grown out of the pri-mordial waters, from which the cosmos was cre-ated. With its roots in the lower world of the

water deities, its stem in the middle world ofhumans and its branches reaching up to the worldof the gods, the Tree of the World transcends thethree spheres of existence(9). In some folksongs,collected by Francke (1923) in Tagmachig, theearth was formed from under the ocean. Similarlyto the cosmogony found among the ancient Vedicand Siberian peoples, three worlds were created,and a Tree of the World, or pillar of creation, linksthese worlds together.

A large willow tree grows near the spring of Tagmachig

© C. Wacker

Each of these three spaces, Lhayül, Miyül andOgyül, is inhabited by both malevolent andbenevolent creatures. The middle world is seenas a lotus-shaped space, inhabited by humanbeings and ghosts, while the upper world isinhabited by protecting deities, the sun, moon andstars. The lower world is inhabited by the waterspirits Lhu or Lhu-mo and the Sa-bdag spirits of theland, which take the form of snakes, lizards, orzoomorphic humans, with a lower snake bodywhen seen by humans. They relate the middleworld of the humans with the lower water world,while the khyung bird relates to the upper worldof the gods.

Water in the Buddhist creation mythThe water from the first spring forms a stream,bordered by wild lavender, grass and shrubs.Some fifty meters down the mountainside, it isdiverted into a short canal, leading to a hydraulicprayer mill, in which 120 prayer wheels are turnedclockwise by the flow. Each wheel contains hun-dreds of small pieces of paper inscribed with the

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Buddhist prayer om mani padme hum (“oh jewelin the lotus flower”). In Indian mythology, in thePurana and the Mahabharata as well as in theBuddhist and Jain cosmogony, before creationthere was an endless ocean of primordial water inthe cosmic night. A bud of creation floated on thiswater. Out of its centre the Tree of the World, ora lotus flower, grew, and out of that the creatorgod came into existence, and then created theworld. The prayer “oh jewel in the lotus flower”refers to this creation myth. The jewel is the cre-ation, the consciousness, coming into being fromthe centre of the bud, which floats on the primor-dial waters.

Monks prepare offerings to the water deity – © C. Wacker

In this creation myth the Naga (in Sanskrit) or Lhu(in Tibetan) snake deity of the water holds thewater of the ocean back, by forming seven coilsaround the world with her body. The world floatslike a raft on the primordial water. In the ancientIndian (Vedic) literature the Naga snake deitiesare the protectors of water, fertility and land.They can bring wealth as well as hunger, rain ordrought, purification or disease. Kings can onlyreign by adhering to their laws. In the BuddhistJataka stories Lord Buddha converted the snakedeity and convinced her to use her powers to pro-tect Buddhism. In Ladakh it is understood that theTantric yogin, Padmasambhava, subdued manylocal deities, which then became protector deitiesof Buddhism.

This background is visualized in Tagmachig withthe hydraulic prayer mill. The water, or symboli-cally, the water deity Lhu-mo, ‘powers’ the

Buddhist prayer wheel and runs then in a smooth,regular flow to be used by the people below.Returning once again into the stream, the waterflows downhill, gains speed and spills into sidechannels, which drive hydraulic mills to grind barleyand wheat into flour. Each of the six main fami-lies of Tagmachig has its own hydraulic grindingmill besides the stream running through the vil-lage. When the water flow is too great, the millsmay be washed away; when the flow is too smallthey may be rendered useless.

Below the spring, a Buddhist prayer mill is powered by the

water – © C. Wacker

The main staple crop in these Himalayan oasis vil-lages is barley. Quickly roasted on the fire, barleyis ground into flour and then consumed in vari-ous dishes without further cooking or baking.The water mill is therefore the point at which the‘raw’ is transformed into the ‘cooked’ (in thesense of Lévi-Strauss). In Ladakh, the water mill isrich in marriage symbolism and is a technology ofcentral importance to the subsistence agricultureof the village. By passing first into a Buddhistprayer mill, the initially chaotic, wild power of

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the water deity lhu is symbolically disciplined andbecomes a force allowing human civilization andlife in the Himalayan oasis.

Water rights: equity and purity is controlled by allA side canal brings water to the fields belongingto the Mon families of the village before itreaches the main irrigation pond(10). Reinforcedby stone walls and consolidated by the red rootsof willow trees planted along its banks, thestream flows into an oval reservoir, which collectsthe water over night and makes it available tothe villagers, who then distribute it to theirrespective fields. The irrigation system is the com-mon property of the villagers. It has been built, ismaintained and owned by them and the water isdivided equally between them. Below the villagers’common reservoir, a vertical stone divides thewater into the two main irrigation channels ofTagmachig. The villagers control the water distri-bution system below the reservoir by putting asmall heap of stones on the dividing stone, whichnobody is allowed to move, except the two usersentitled to water for that day. One of the twomain canals flows as an open and perfectly cleanwater-course through the village, and is used asdrinking water. Below the village, another stonemarks the place where washing is permitted. Theother channel leads directly to the farming ter-races. Within the fields, flat stones and smallelevations direct the water to each plant.

Flood protection, cyclic time and the renewal of the worldAt the edge of the irrigated area, a cliff separatesthe cultivated land from the wild Indus River. Thecliff is bordered with Buddhist stupas and maniwalls, with small heaps of white stones piled onthem, which the villagers deposit at New Yearwhen circumambulating the village. The placemarks a boundary between the civilized village(culture) and the untamed Indus (nature), andthe end of the water-course landscape ofTagmachig. This place is related to the cos-mogony, which is the subject of the mask dances,songs and hymns of the New Year celebration.

The meaning of water in thevillage ritualsMyths are narrated at special occasions. Whenmyths of creation are recited, both the narratorand the listener fall into a particular state of con-sciousness. Through story-telling the narratorsre-establish the fantastic time of creation, and lis-teners become witnesses of these events. They thustranscend linear, chronological time and enter intomythical time. Lévi-Strauss compares the structuresof myths to a musical composition, which followsanother logic to that of modern sciences.

In Tagmachig, the holy lakes with the swastikaand the Buddhist prayer mill powered by theriver both depict the creation of the world outof primordial water. At the bottom end of thevillage, the wild Indus water symbolizes death,suicide, miscarriages, and the end of creation. Inthe New Year myth, the linear causality of theflow of water from the spring to the bottom endof the village is transformed into a cyclical con-cept of time, through creation, destruction andrecreation of the world. Losar (New Year) is cele-brated according to the Mongol (Tibetan) calen-dar in January or February and includes the ritualcircumambulation of the mani walls and chörten(stupa) along the Indus. For every ten rounds ofprostrations from the village to the last chörten,some two kilometres below, the Buddhist devo-tees deposit a white stone on an altar pointingtowards the Indus River. The villagers explain thatthese piles of white prayer stones protect the vil-lage from infertility, child miscarriages and sui-cides. These have happened frequently in previouscenturies, they say, and are believed to be causedby the furious sound of the Indus(11).

New Year is the time for multiple village festivals,weddings, beer-drinking visits and pilgrimages.One such pilgrimage is to the head monastery ofTagmachig, in Lamayuru, where the monks per-form mask dances, explaining the coming intoexistence of the world from the primordialwaters; the cohabitation of the gods, humansand ghosts; their separation into the upper,medium and lower worlds; and howPadmasambhava, the Buddhist Tantric yogin,conquered the demons and gods and trans-formed them into protecting deities of theWheel of Law.

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The year is structured along the solar and lunarcalendars, with festivities and ceremoniesthroughout the year. They ritually display thesymbolic meaning of water and, at the same time,also structure the agricultural work and watermanagement tasks. Referring to the solar calen-dar, the ceremonies for the first two months afterthe New Year highlight the ordering of the life-giving quality of water for agriculture. At first,the water is channelled and distributed fairly andequally among the villagers. Water is then cele-brated as the main provider of fertility, with a cer-emony requesting forgiveness for interferingwith the forces of nature and accompanied by thesymbolic gift of a child to the spirits of the waterand the earth(12). These ceremonies are related his-torically to the first inhabitants of Ladakh, theMon, the Dravidians and Indo-Iranians and totheir pre-Buddhist folklore from Eastern Iran andIndia before their migration. With twelve days ofprayers, the whole village of Tagmachig cele-brates the maney ceremony for enough waterand a good agricultural season. At the zochul cer-emony, the astrologer defines the auspicious dayfor the start of the agricultural season. Then thereis a merry beer-drinking village festival, when twofamilies, designated on a rotational basis, offeryur chang(13) barley beer.

All the villagers are then called to participate in therepair work on the irrigation system. At this event,the older people play a major role, narrating thehistory of the village and transmitting knowledgeand skills related to the construction and mainte-nance of the water system(14). On saka day, the vil-lagers gather at the common irrigation tank, whichis freshly repaired and filled with its first water. Aballot is held, in which pairs of families are identi-fied, to share the water from the village tankaccording to a twelve-day rotating system. The firstwater is then brought to a designated family(15),which has the traditional role of opening thewatering period. After the saka celebration all vil-lagers manure and plough their fields, start water-ing the land and sowing barley, then wheat andlater also vegetables. The first three rounds ofwater distribution during the twelve-day rota-tional pattern each have a name: dolchu, rakchuand nonchu. After these rounds, the system hasbecome established and some family members pre-pare to move to the dok, the land at higher alti-tudes, where the ground is beginning to thaw.

With the arrival of Spring and abundant waterfrom snow melting in the mountains, the deitiesof the water and of the earth are worshipped inceremonies which relate fertility to ritual pollu-tion(16). Other ceremonies are held to keep dis-eases away from the crops(17). In these ceremonies,the villagers recall the rules for maintaining thepurity of the water: the spring, the water-course,the land around the spring and the land as terri-tory. After this, the lustor or sarak dondol cere-mony takes place for the deities of the water, theLhu and Lhu-mo and the lord of the land BonuPati or Sa-bdag. At this season, the deities can beperceived by humans in the form of lizards, asthey wake up from their winter sleep. A powerfulmonk or yogin is called to perform this majorwater ritual for the village. A ceremonial pot, abum-pa, filled with prayer rolls, sweets, milk,incense and barley is offered to the Lhu. It iseither deposited in a lhu-bang near the spring, orthe offering, brought ceremonially by monks, isdispersed into the water at the spring. Whilesome family members spend the month of June atthe high altitude pastures, others stay in the mainvillage to water the plants and to weed the crops.This work is carried by pairs of women – oftenneighbours – who do farming work togetherthroughout the year. The monks hold anotherceremony, storlok(18), to keep diseases away fromthe crops, while the families celebrate neigh-bourliness with a specific prayer, chosil(19).

When the barley is ripe, the goddess of abun-dance is worshipped at the shrubla ceremony.The whole village joins together to offer grainsto the goddess and ties straw stalks to the centralpillar of the kitchen of each house. People sing,dance and drink beer. Monks recite holy textsabout the origin of the world, according to whicha pigeon, symbolizing a fairy, brought the origi-nal grain to the human beings from heaven.After this important ceremony, harvest starts. Allfamilies join in the work, moving together fromthe fields of one family to the next. Nobody usesany iron tools to harvest the crop, to ensure thatno harm is caused to those dwelling in the earthand the water, the Sa-bdag and the Lhu-mo. Thespirits of the earth and water are also celebratedat harvest time with rituals at family level(20). InOctober, the night temperatures are alreadybelow freezing point and the last month withwater is used intensely to grind the barley and

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wheat in the water mills before winter. ByDecember, the winter season has come. It is aperiod of festivities, merry-making, visits, andweddings, until Losar marks the beginning of theNew Year once again.

The protecting village deity at the hermitage of Tagmachig

© C. Wacker

The relationship betweenwater and agriculture

In Tagmachig village, every morning before theday starts, the monks and families offer sevencups of water to the protecting deities. When wevisited the monastery to document this dailywater ritual, the young monk asked us whetherwe ‘really’ wanted to know the meaning ofwater in Tagmachig. When we said that we did,he advised us to consult the hermit, and showedus the way to his retreat(21), about an hour’s walkfrom the main village. A large stone with an oldinscription guides the way. The hermit told us he

had been living in Tagmachig for more than tenyears, and, laughing with joy, showed us a smallspring behind his hermitage. After ten years ofmeditation, he said, he had managed to drawwater out of the desert and to create first aspring and then the apricot orchard around thehermitage. Water, he explained, is a result of theattitude of the people; they can call the waterout of the desert through their work and rituals.When water is scarce, some powerful head lamasor yogins make a bum-pa ceremony at the springto call up the water. If the ceremony is successful,the spring will bring forth more water.

The symbolic meaning of water in Tagmachig,said the hermit, lies in agriculture. He advised usto go back to the main oasis and to walk onceagain by the ripe wheat fields and under the apri-cot and walnut trees full of fruit. As weapproached a group of villagers harvestingwheat, we noticed some children picking fruit. Ayoung girl ran towards us to offer us apricots andapples, nicely presented on a plate. As wethanked her, we noticed the gracefulness of theother children as they picked fruit, and the beautyin the smile of one of the young girls playing withother children. In good English, this girl told usthat she went to secondary school in the capitaland was spending her holidays at home to helpwith the fruit picking. She then explained that sheis the oracle of the village and is in training undera senior oracle in the capital, besides going toschool. At times, she told us, she is possessed bythe protecting village goddess of Tagmachig,Urbis-Chomo, and has the power to communicatewith the water spirits. These spirits speak throughher in a Tibetan dialect and can cure diseases. Incase of water scarcity or health problems, like skindiseases, the villagers call on her to intervene.

When asked about the meaning of water, shelaughed and – with a similar gesture to thehermit’s – pointed to the trees, the ripe fieldsand the people harvesting the crop, singing tra-ditional harvest songs together. It is their work,she explained, that brings forth the water in thespring. When water is scarce, some villagers goon pilgrimage to the sacred lakes in the highmountains, where the water comes from. Therethey might see the holy swastika sign in the per-fectly clear water. And, during a seriousdrought, they call a high lama or a yogin to per-

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form a bum-pa ceremony at the spring, firstinvestigating in the village to see if human-caused pollution might have disturbed the Lhu,and then offering gifts to the water deity tobring forth water.

Wheat is harvested by hand, without any use of iron to pre-

vent harming the soil and water spirits – © C. Wacker

Cultural pluralism and thelocal uniqueness in thesymbolic meaning of water

The regional history of Central Asia has beenformed by the interaction of nomadic steppepeoples, who domesticated the horse, and byfarming peoples with irrigation skills, who livedalong the water-courses and in desert oases.There is evidence of trade and cultural exchangealong river courses and over mountain passesbetween Eastern Iran, Afghanistan and NorthernIndia since the Neolithic, some four thousandyears ago. Through conquest and amalgamation,new civilizations arose with a mixed agriculture,providing a surplus for the development oftowns and long-distance trade.

The cultural exchange, which has taken placeover the centuries, can be seen in the ceremonialcalendar of Tagmachig. The calendar structuresthe main tasks in water management and agri-culture and relates water, agriculture and thesymbolic meaning of water to each other.

Indeed, four different systems are used to struc-ture time in Tagmachig: the solar calendar, thelunar calendar, the astrologer’s definition of aus-picious days for ceremonies and observations ofthe sun. By defining which calendar is used for agiven water-related ritual or ceremony, it is pos-sible to identify the cultural context to which thesymbolic meaning displayed in the ritual refers.For example, the New Year festivities as well asceremonies related to purity and pollution referto the lunar calendar. Ceremonies to do withfarming, fertility and thanksgiving to a goddessof plenty are related to the solar calendar (e.g.saka, the beginning of the growing season andshrubla, the harvest ceremony). According toKhoo (1997) the solar calendar might have beenbrought to Ladakh by the original Indo-Iranian(or Aryan) settlers. The lunar calendar(22) origi-nated in Mongolia and was introduced into Tibetin the 13th century, and later into Ladakh.

Over the centuries, Tagmachig village has beensettled by Mon, Dards and Tibetans. Theybrought with them ideas about the symbolicmeaning of water, which have amalgamatedthrough time into locally-shared knowledgeabout water that is related to the immediateoasis environment. Originally of Indian andIranian origin, the Mon, (‘dwellers of the water’)are related to the early Bronze Age and to theurban centre of the early Indus civilization,Harappa, in the lower Indus valley(23). These earlycivilizations in Eastern Iran venerated fertilitydeities and the four agricultural seasons. Theyalso had irrigation skills(24) and used a solar calen-dar. On their southward migration, they mighthave settled in the upper Indus, near or inTagmachig, along the Silk Road through theHimalayas. According to Man (1986) and Ribbach(1940) they may have settled in the first centuriesA.D. or even earlier. They also might have con-verted to Buddhism during the first wave ofBuddhist expansion along the Silk Route, afterthe reign of King Ashoka in Kashmir during theKushan empire (Francke 1907).

The largest population group is of Dard origin.They later adopted the Ladakhi language, aTibetan dialect, but maintained many of theirbeliefs and rituals from the Dard tradition, suchas the village goddess of Tagmachig, Urbis-Chomo(25). Originally from Central Asia, the Dards

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were hunters and pastoralists, and knew how tomanufacture iron. The Dards maintained an elab-orate complex of rituals around pollution thatwas related to their ancestor belief and toshamanism. After their conquest of the Graeco-Bactrian Empire in the lower Indus valley, theyare said to have adopted Buddhism and both anurban and an agrarian mode of living. They thenmoved to today’s Kashmir and along the mainSilk Road routes across the Himalaya to theTaklamakan desert and up to China (UNESCO1992, vol. I and II). Rock inscriptions and drawingson the banks of the Indus River near Tagmachigrefer to this early medieval period of settlementand long-distance trade along the Indus (Puri1987, Dollfuss 1989).

Tagmachig is situated on the delta of a small side river of

the Indus in lower Ladakh, Indian Himalaya – © C. Wacker

The area was invaded by the Tibetans in the 7th

century, and the Tibetan inhabitants of Tagmachigsettled there in the 17th century(26) or earlier. Apowerful kingdom is reported to have existed inwestern Tibet, which expanded to the Kashmirlowlands. Known as Shang-shung, it was the cen-tre of Bon Shamanism in western Tibet, a one-week caravan route from Tagmachig (Snellgroveand Richardson 1968, Baumer 1999). The villagemonastery of Tagmachig is related to Lamayuru,to the Drepung Red Hat sect, one of the ‘oldschools’ of Tantric Buddhism, which maintainsmany of the shamanistic beliefs and practicestoday(27). Examples include the conception of theworld as having three layers, represented symbol-ically by the mythical tree at the spring ofTagmachig and the tradition of yogin hermits.

The type of irrigation practiced in our example,in the upper part of the Indus river, in Ladakh,has existed since the Neolithic in various places allover Central Asia – in Eastern Iran, Uzbekistanand Afghanistan, in the Tarim basin along thesouthern Silk Route, and in Tibet. And some ofthe symbolic meanings of water in Tagmachigtoday can also be traced to the ancient civiliza-tions it came into contact with. For example,water is related to the creation and destructionof the world, which is understood as a cyclicalprocess of regeneration. And zoomorphic deitiesrelate people to nature, as well as being associ-ated with fertility. The contrast between thecomplex, closed oasis system and the vaststeppe or mountain pasture is a central themein water imagery of this region. Additionally,Buddhist symbolism associates water with therise of consciousness, including awareness ofthe impermanence of existence.

Water symbolism inTagmachig: an interpretation

Tagmachig is a small oasis, where the water man-agement system is built and maintained tradi-tionally, with stones, mud and local vegetation.Its remoteness, subsistence economy, cold win-ters with temperatures far below freezing – andtherefore unsuitable for the iron pipes of mod-ern water management systems – are all reasonswhy the traditional system has not been modern-ized. The ceremonial calendar of Tagmachig dis-plays the symbolic meaning of water and relatesthe ‘little tradition’ of the local culture to the‘great traditions’ of distant cultural centres, likeIran, India, Tibet and Mongolia. The rich symbol-ism of water in Tagmachig has borrowed con-cepts from various cultures and periods of historyand blended them into a locally unique ritual sys-tem, adapted to the local ecosystem of the oasis.This ritual system highlights three main symbolicmeanings of water: vulnerability, interdepend-ence and continuity. We looked at the rituals andanalysed the qualities attributed to the waterdeity in the community. The water deity isdescribed as unreliable and short-tempered; itcan be furious and destructive, or generous and

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fertile; it can be intolerant against real or ritualpollution as well as easily seduced whenapproached with purity, sweet food, jewels andfragrant incenses.

The vulnerability of people in the desert oasis isthus symbolically transferred to a water deity, theLhu-mo. It makes it possible for the people toachieve a shift from effective dependency onwater to a relationship of reciprocity and mutualinterdependence with water. This widens thescope for the people to play a part in determiningtheir own livelihood. The rituals and differentforms of co-operation result in fostering a com-munity that shares its risks and increases itschances of survival.

Fresh water is the most precious of the offerings in the daily

ritual performed at the monastery of Tagmachig

© C. Wacker

Nature is unpredictable in the place where thiscase study was done. Below the village, the Induscarries rocks, silt and ice, which sometimes blockits passage and create floods. Heavy weather inthe mountains, or a cracked glacier, can bringcatastrophes. Sharp temperature changes cancreate earthquakes and stone hails which, inturn, can bury the springs upon which life in theoasis depends. The altitude, temperature andavailability of water set narrow limits upon agri-culture. For example if the crops are sown toolate, the snow-melt might not last long enoughfor two crops a year. If sown too early, frost mightdestroy the crop, etc.

White stones are ceremonially deposited at New Year at the

edge of the irrigated land towards the Indus – © C. Wacker

The ritual calendar structures agricultural work,and, as most tasks such as defining the day whenwatering should start, are collective, the risks andresponsibilities are also collective. This symbolicallyintroduces an element of predictability andcontrollability to counterbalance the inherentunpredictability of Nature here. At the NewYear ceremony, the fundamental theme is thecontinuity of cosmic existence. And it is from thisbasis that predictability and perpetuity are sym-bolically constructed. While a new year and newagricultural season are anticipated accordingto the calendar and the sun (i.e. the shortest dayof the year), the cosmogony performed at theNew Year’s ceremony explains how the worldappeared, how it will also one day disappear, andhow a new creation will arise once again. By asso-ciating the symbolic continuity created throughrituals with water, and water with fertility andthus with procreation, water in itself representsthe continuity of culture, and the continuity ofthe individual and collective identity of a villageor a community.

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ENDNOTES (1) Sanskrit spelling of yogi

(2) The Tagmachig people were bartering salt and fine wool from the nomads in Rupshu (Chang Tang) at the Saktiautumn fair in upper Ladakh for dried apricots fromBaltistan, and home grown barley and walnuts, before theice cover of the Indus river melted again in spring and thevillage was cut off from the international trade route duringthe agricultural months. Some villagers even went on six-month caravans up to Gerge in Tibet and also sentrelatives to study in Tibetan monasteries.

(3) sTag means tiger in the Tibetan language. The villagename is also written Tag-ma-gic or sTagmachig.

(4) Bon in Tibetan means “to invoke”. In Bon Shamanism,religion was transmitted mainly in the form of myths,recited by invoking priests, recounting the origin ofexistence of all beings including gods, spirits, humans and others.

(5) The folksong is sung by the men of Tagmachig. It hasbeen recorded and translated by Tashi Rabgyas, 1997.

(6) Before the advent of Buddhism in Central Asia andLadakh, knowledge about water was transmitted orally. Noreligious buildings were constructed. The main means oftransmitting symbolic knowledge are religious rituals andvillage ceremonies, as well as the rituals performed byreligious specialists, such as oracles and shamans. InMahayana Buddhism, the cult of local gods and thetradition of oracles and divination techniques weremaintained. Villages such as Tagmachig, related to the ‘oldschool’ of the Red Hat sects of Mahayana Buddhism, havealso maintained the tradition of the yogin way toenlightenment. In Tagmachig, a yogin and a village oracleare today relevant specialists in water management.

(7) A lhu-bang is a small, cubic construction of about onemeter per side, decorated with juniper twigs and smallwhite stones in the shape of a stupa. The buildingsymbolically represents the cosmos. The juniper twigs at the centre of the roof symbolise the cosmic tree of theworld. The lhu-bang is a ceremonial place for offerings tothe water deity and contains a bum-pa, a ceremonial potwith offerings.

(8) The iron-tipped plough was introduced to Ladakh in the 2nd century AD, according to the Ladakh Chronicles(Dollfuss 1989).

(9) In the Dard tradition of some villages neighbouringTagmachig, the King Willow is the Tree of the World, fromwhich the bird brought the initial seeds (Vohra 1989).

(10) The fields of the Mon families are watered upstreambefore the water is collected in the reservoir, probablybecause the Mon were the original settlers. It is possible that later settlers built the reservoir below their lands. Drew (1875) states that the Indus portion below Tagmachigwas once a lake, which gradually drained and made moreland available for cultivation.

(11) The symbolic relationship between the sound of the riverand human life refers to the myth of creation of the world inthe Bon cosmogony which explains the coming into existenceof the world from a primordial ocean, out of which a furiousdragon arises and then, eventually, releases some of thewater to allow the formation of land and then the world.

(12) The beginning of the agricultural year is celebratedwith the Saka ceremony in March. Bulls with decorated(anointed) horns are allowed to run in the fields as theystart to turn green; then a child masked with white flouropens the land for the initial ploughing and the villagegoddess is worshipped.

(13) Yur means “water canal”, Chang means “beer”.

(14) In Tagmachig the irrigation canals are built only withnatural materials found nearby: stones and shrubs, whichare held together with sand and silt, by the fine roots of aform of millet grass planted in the silt, and by the roots ofthe willow trees planted along the irrigation canals.

(15) The family has no special privileges and has this roledesignated by tradition. It is probable that in the timebefore the village belonged to the Ladakhi kingdom, with its land and water rights registration system fortaxation, the land was also a common property of thevillage and was also allocated at the Saka ceremony eachyear to the families, as described by Vohra (1989b) for aneighbouring Dard village.

(16) Rites of passage in human life such as birth and deathand the uncontrolled presence of foreigners ignoring therules for maintaining the purity of the water and themarriage rules of the village, can pollute the water andcause skin diseases. Pollution, it is believed, leads to areduction of the water volume, to infertility of the land andto diseases.

(17) At the Jing-tsrak ceremony, the monks throw rice andmustard seeds into an open fire, where they areceremonially destroyed.

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(18) Storlok is a ceremony performed in the monastery bythe monks. They make figures out of barley representingevil spirits and burn them, thus removing them fromagriculture.

(19) Chosil prayers are performed at family level in summer,connecting households to each other. Three monks readholy texts in one family at a time for two to three days andcontinue the reading in the next family, and so on.

(20) To keep the wealth in the homes until the next harvestcomes, another ceremony takes place at family level inSeptember, in honour of the spirits of wealth, calledSkansol. A handful of barley, wheat, corals, some money,copper and silver are tied together in a sack to attract thespirits of wealth and to pray for enough water. The sack isstored in the house for the next year in the presence ofmonks reciting prayers for the family.

(21) The hermitage of Tagmachig village, the Tseamskang(isolated place) was the meditation site of a famous TibetanKhanpo (Buddhist title). It is inhabited today by a hermitmonk from Bodhgaya (near Benares).

(22) In the lunar cycle, the months follow the phases of the moon and the weeks are reckoned on a seven-daycycle related to the planets. According to this calendar the first month corresponds approximately to the month of February or March.

(23) Having a written script, this urban culture was alsoinvolved in sea trade and had some cultural exchange withMesopotamia and ancient Egypt.

(24) The irrigation technique was introduced into Tibet bythe Pontian migration from the Black Sea through centralAsia in the 9th and 8th century BC.

(25) At the highest place of the village there is a majorLhato shrine for the village goddess Urbis-Chomo and fivesmaller ones with bum-pa’s (ceremonial vessels) for waterand wealth. The village goddess of Tagmachig is the chief of’the Seven Sisters‘, the protection deities of theneighbouring villages of Domkhar, Skurbuchan, Ledo andothers: Hagnis-Chomo, Foka-Chomo, Dagmar-Chomo, Dag-nag Chomo, Yakra-Chomo, Shukpa-Chomo.

(26) The settlement of the two Tibetan families inTagmachig might date back to the invasion of this Silk Routepassage by the Ladhaki king, Seng-ge rNam-rgyal, who alsobrought Tantric Buddhism and established or rebuilt majormonasteries, e.g. Lamayuru, the head monastery ofTagmachig and also built the long row of chörten and maniwalls bordering the trade route at Tagmachig village.Lamayuru is the most ancient religious building in Ladakh, aplace having many names (e.g. also known as Gyu-ru orYuru Sen-ge-sgan) and many monasteries. It existed beforethe advent of Buddhism in Ladakh and was turned into aBuddhist monastery in about 1050 A.D. (Hassiani 1973).

(27) Many of the early head monks of the Drepung sect in the 13th and 14th century were from Mongolia. Altaic beliefs and shamanistic practices from this contexthave an important place in this Buddhist sect (Snellgrove and Richardson 1968).

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Bellezza John Vincent, 2002, Antiquities of upper Tibet. Aninventory of pre-Buddhist archeological sites on the highplateau. Findings of the upper Tibet circumnavigationexpedition, 2000, Adroit Publishers, Delhi.

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Carrasco Pedro, 1974, Land and polity in Tibet. Monograph 32, the American Ethnologial Society, Universityof Washington Press, Seattle and London.

Cohen Alvin P, 1978, Coercing the Rain Deities in AncientChina. History of Religions 17, 1977/78, The University ofChicago, USA.

Conze Edward ed., 1954 (1995), Buddhist Texts Through theAges. Munishiram Manoharlal Publishers Pvt Ltd, Delhi.

Crook John, Osmaston Henry, 1994, Himalayan BuddhistVillages. Environment, resources, society and religious life inZangskar, Ladakh. University of Bristol, Bristol.

Dargyay Eva K, 1988, Buddhism in adaptation: ancestor godsand their tantric counterparts in the religious life in Zanskar.History of Religions 28 (1988), pp 123-134. University ofChicago.

Dollfus Pascale, 1989, Lieu de neige et de genévriers.Organization sociale et religieuse des communautésbouddhistes du ladakh. CNRS, Paris.

Drew F, 1875 (1976), The Jummo and Kashmir Territories.Delhi.

Eliade Mircea, 1949, Traité d’histoire des religions.Bibliothèque historique Payot, Editions Payot, Paris.

Eliot A ed.,1976, Mythen der Welt. Bucher Verlag, Luzernund Frankfurt/M.

Engler Ivan, 1989, Entstehung des Wassers. In Ders. ed.Wasser, Polaritätsphänomen, Informationsträger, Lebens-und Heilmittel, Sommer Verlag Gmbh, Teningen.

Francke AH, 1907 (1978), Ladakh, the Mysterious Land. Cosmo Publications, New Delhi.

Francke AH, 1923, Tibetische Hochzeitslieder, übersetzt nachHandschriften von Tag-ma-cig. Hagen/Darmstadt.

Grist Nicky, 1985, Ladakh, a trading state. Acta biologicalmontagna 5, pp 91-102.

Gyaltsen Jamyang, 1997, The introduction of Buddhism intoLadakh. Osmaston Henry and Nawang Tsering eds., RecentResearch on Ladakh 6, University of Bristol, Bristol.

Hassnani FM, 1973, Buddhist Kashmir. Light and LifePublishers, Delhi.

Kaltenmark Max, 1970, Religion de la Chine Antique.Encyclopédie de la pléiade, histoire des religions 1, ÉditionsGallimard, Paris.

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Kaplanian P, 1983, Quelques aspects du mythe et desstructures mentales du Ladakh. Kantowsky D and Sander R,Recent Research on Ladakh.

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Rather Ali Mohmad, 1997, Discrimination in Ladakh Society.A Study of Mons and Bedas of Ladakh. Osmaston Henry andNawang Tsering eds., Recent Research on Ladakh 6,University of Bristol, Bristol.

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Many citizens in our rural areas still remember the indigenousCommunal Food Security program, but the generation gap is huge. Ourelders can remember, but our youth have no idea. This traditional historyof food security practices cannot be a blueprint for these modern times.But for change to happen, both the local government and the house ofchiefs should be mobilized to take up this challenge seriously. This iswhy we created the Water for Food Movement.

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Tshepo Khumbane has worked in many positions and places in South Africa, as a social worker,development activist and volunteer community development worker. Currently she lives on asmallholding at Dewagendrift near Cullinan and keeps records of every action, cost and benefit of her food production activities to motivate the groups of rural women she regularly leads fromdespondency. In 2002 she initiated the Water for Food Movement, which is also supported by the International Water Management Institute.

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Introduction

This presentation aims to raise concerns aroundthe problem of food insecurity for many peopleliving in arid, rural, communal areas. AlthoughSouth Africa has a large sector of commercialfarmers and food processors producing an abun-dance of food, many marginalized rural commu-nities live in poverty with very little money. Foodis therefore inaccessible because of the cost.

It is a great pity that we have lost the history offood security that previously existed at thehousehold level in all rural communities, carriedwithin the basket of social systems that mobilizedindividuals and families to take responsibility fortheir own survival. I grew up during times whenthose systems still existed. I remember well howwe produced food. Currently, I have seen womenand men losing hope and retreating into a deeppit of apathy. In order to overcome these prob-lems I believe the Water for Food Movement pro-vides a vision to change the individual mindsetand stand up to fight hunger and malnutrition.

Indigenous traditions and rituals for food security

South Africa used to have many rural communi-ties that survived on the land through farming.They had developed social systems and rituals insupport of food production and food security forall. These systems acted as the guardians of landuse management systems and ensured commit-ment to communal farming activities to keepfood production a first priority.

The system of land cultivation was simple andcaused very limited soil erosion. Rivers still hadbanks and there was no silting to the level we seetoday. The rivers provided numerous sources offood. On the riverbanks there were reeds, grass,and water vegetables (morogo) and we also hadfish from the river. Sand in the river filtered theminimal pollution, providing us with drinkingwater directly from the river. The river flowedthroughout the year and we dug wells at house-hold plots so everyone had their own access towater. When the water table dropped, the com-

munity dug protected wells next to the river-banks so there was plenty of water for all.

To ensure proper sanitation, the elders told astory about a man who broke the communityrule about squatting next to the drinking well.He developed a tail that grew so long he couldno longer wear trousers. He became a joke in thevillage because he could only wear silk aprons.Through the teachings of our elders we learnhow to respect water.

Every year, before the rains would start and markthe beginning of the New Year farming calendar,an environmental cleansing ritual was performed.The chief, counsellors and traditional doctors wereresponsible for ensuring that the environment waspurified, so that when the rains started, the dirtwas removed from the forest and veld, and thewater did not carry carcasses into wells and rivers.It was also a ritual for rain and to divert insects.

The current situationThings have changed so much, that it is hard toknow where to start looking at issues of foodsecurity. South Africa’s poor majority nowadaysdepends on social grants for survival, creating asyndrome of apathy and helplessness. Our pres-ent youth have no idea how to produce food atthe household level. They only know about buy-ing it daily from markets.

I will not go into detail about the apartheid gov-ernment’s legislative apathy. There are piles ofdocumentation throughout the country, butmuch more has not been documented: howremovals from their original settlements not onlydisplaced people, but psychologically changedtheir attitudes; how removals dispossessed themof their livelihoods – the loss of their land andaccessible water resources, grazing land, theirwoodlots, the wildlife that they so dearlydepended on. Our little village at Tshukudungwas dismantled in 1957, when all satellite villageswere destroyed and people moved to the big set-tlement next to the chiefs’ kraal. This scheme waspackaged as part of the government’s so-called‘Betterment Scheme’. ‘Betterment’ meant chang-ing land allocation and losing housing. It also

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meant that river water and wells were now faraway from people’s homes. Inevitably, people’slifestyles changed, migratory labour became moreprevalent and social systems collapsed. Crimemoved in and households sank into poverty.People who used to cooperate became helpless.

For present grassroots rural inhabitants, work isinterpreted as being employed for a salary. Thismindset is very different from the time when Igrew up. People have lost the power to valuethemselves and value the land and water systemsaround them. Nowadays, not even one of therivers flows throughout the year. The bigMononong River is dry and silted. Hlaafele Riverhas no water, the riverbanks are untraceable.People are buying water from those who haveboreholes in their homesteads; the communalwater supply is inadequate or non-existent in cer-tain sections of the village. It is a nightmare tolive in that area. The silent messages pumpedinto our heads by all the devious laws ofapartheid are still a reality today. The country isfree but the people are not yet free.

South Africa’s new local government has beenborn into a period of great challenges. To me, thegreat challenge we face during this era of newcivilization is whether we have suitable strategiesto deliver on the promise of ‘a better life for all’.Everyone is looking forward to the promiseddream. We should recognize that the strategy of‘self-targeting’ works for those already on theirfeet. But what about the many that are stilltrapped in apathy? While we all recognize thenecessity to share the water of rivers and bore-holes in the country and in the Southern Africanregion, we have failed to provide the poorer peo-ple of our country with adequate water even forhousehold use, let alone for food production.

The Water for FoodMovement

Many citizens in our rural areas still rememberthe indigenous Communal Food Security pro-gram, but the generation gap is huge. Our elderscan remember, but our youth have no idea. I real-

ize that this traditional history of food securitypractices cannot be a blueprint for these moderntimes. But for change to happen, both the localgovernment and the house of chiefs should bemobilized to take up this challenge seriously. Thisis why we created the Water for Food Movement.

The Vision of the Water for Food Movement is:active households in communities taking respon-sibility for their own livelihoods, starting withfood as a priority to liberate the minds andrebuild the family as the primary institution forthe re-socialization of youth.

The Water for Food Movement aims to break thecycle of apathy so common among insecure fami-lies, and to lead them from helplessness towardsself-confidence and creativity; to enable them toface the challenges of rebuilding their livesthrough their own initiatives. This process enablesthem to see the opportunities that are open tothem to change their situations, and not sit backand wait for someone to do it for them. TheWater for Food Movement stimulates co-opera-tion and inter-personal support within communi-ties, so that community values and norms canregenerate. The process helps eliminate self-pity,idleness and negative perceptions in the power-less section of communities. There is a packagedtraining program to help make this happen.

•To ensure food security, the targeted house-holds become conscious of water – capturing,storage, manual pumping and utilization ofrainfall run-off, roof water and recycled greywater on homesteads. Conservation ofpotable domestic water will become a prior-ity through wastewater recycling.• Through a land- and water-managementdesign for the homestead, these familiesbecome conscious of run-off water catch-ments. This involves creative initiatives withinthe homestead, and low-cost methods forintensive, sustainable, homestead land usefor vegetables, fruit trees, grains, etc.• Rebuilding arid soils and managing wasteat household level and in surrounding areasare priorities. Environmental health is notjust a matter of legislation and by-laws. It isa people-driven program that makes localgovernment effective in its approach toreconstruction.

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•Fruit tree planting at household level is partof social reforestation initiatives – to buildlong-term food assets at household level,with an impact on nature conservation. Thishelps to raise awareness about environmen-tal care that is based on social values andnorms at village level, which local govern-ment can support through by-laws, ratherthan legislating policy from top-down.• Festivals improve broad-based communityawareness and mutual support, sharing ofskills and information. Government represen-tatives can be invited to share information andalso become exposed to the people’s power, tocreate a positive working partnership.• Youth are not passive participants at thesefestivals but instead re-socialized. And there isa Youth Day celebration, where they can testthe skills they have gained at home. They canalso see a range of skills during the fun-filledfestival, which will help them to think posi-tively about their lives. Children from disad-vantaged homes, where apathy still domi-nates, will be motivated to help their parentschange the situation. Creative and fun activi-ties, like recycling waste material to produceuseful articles, help them combine play withwork, to build a working nation for the future. • Time management at household level willstimulate greater awareness of time and howto use it, as an asset to self-empowerment.Children growing up in disadvantaged homeswith illiterate parents will start helping themto learn to write and read. By making adultbasic education and training fun at the house-hold level, a spirit of cooperation will develop,smoothing out tense relationships at home.

The training program starts with the partici-pants’ own empowerment within their home-steads. There, they are in control of their lives.From the homestead, the program moves intothe village community, with continued supportof the Water for Food Movement. The sequenceof the program is as follows.

•Self-reflection, motivation, and design workshopsAn analysis of the present situation helpsindividuals to reflect on their situation andshare the pain and frustrations they face. Thissharing helps people realize that there is away forward. Apathy is turned into hope –

changing the mindset. At the end of the self-reflection workshops, each participant has adraft design for land and water managementin his or her homestead.• Implementation of the design at home Participants are told to start changing andimplementing their land and water manage-ment designs in their homestead. They aretold that they need the support of theirneighbourhood for their initiative, and thattheir own effort alone cannot defeat apathyin the community. Mobilization helps to cre-ate an enabling environment for each personto achieve his or her vision.• Community mobilizationThrough informal groups each person shareshis or her hopes with their neighbours andothers in similar circumstances. The Water forFood Movement is there to help influenceand change the mindset of the rest of thecommunity, to shape new values for coopera-tion and caring. Festivals boost hopes of suc-cess, promote skill-sharing and demonstratewhat has been achieved. • Follow-up training and input by resource persons The Water for Food Movement motivates theinitial target families to continue working.Skill-sharing is expanded to improve skills forland design, soil preparation, crop planting,educat-ion, irrigation, etc. Other stakehold-ers are brought in to share other skills andtechniques.

Once food security has been achieved, the familyis ready:

• Confidence has been rebuilt•Relationships are harmonized• The neighbourhood respects their initia-tives and has bought into the strategy• The family works as a unit – and has devel-oped business skills•The family is ready to go forward. They canstart a small business, find jobs and sell theirland design skills to the middle class, learnirrigation and water harvesting technologies.They can do this for others, for modest finan-cial rewards.

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IntroductionCenturies ago the San (Bushmen) were the only inhabitants of the semi-arid Kalahari area insouthern Africa. They lived in family groups as hunter-gatherers tied to their territorial area termedN!ore (plural !Noresi). The size of a N!ore is based on the available natural resources such as game,edible plants and water, ranging from approximately 5000 to 30,000 ha. The migrations of the Sanwere mostly determined by the seasons. The various San family groups respected each other’s territorial boundaries. However, they assistedeach other by permitting the visiting San to collect food in their area if it had become scarce inanother N!ore. In accordance with the San’s customary law it was considered a serious crime tocollect food from another group’s N!oresi without permission. Water, being an essential resource for the San living in the harsh semi-arid environment of theKalahari, was never refused to anyone. A San settlement within a N!ore was commonly located nextto a reliable water source. San moved only to other places when their water source was drying up.

Traditional water sourcesWhen I interviewed my own people the Hai//om of northern Namibia and elders of other Sangroups such as the Ju/’hoansi and Naro, I learned that for centuries the San used various naturalwater sources and even invented a technology to pump water out of the ground.The very old technology of sucking water out of sip wells might still be used in the KgalagadiDistrict of Botswana today. Sip-wells were places where San sucked water through the sand usinglong or short straws, depending on the water level. These places were often situated north of thesalt pans, which had a sand dune at their southern end. To obtain water the San shovelled theupper layer of the whitish sand with their hands to the side. They prepared an approximately 60cmhole with their digging stick, into which they inserted a straw cut from the Kalanchoe plant, witha grass filter attached to its lower and upper ends. The sand around the straw was compacted andleft for half an hour to accumulate moisture. By using their mouths to produce a kind of vacuum,the San sucked water out of the sand. They then stored the water in ostrich eggs and sealed andburied them in the sand for later use.The San also knew of rare artesian springs which appeared in more rocky areas and provided freshwater all year round. Rainwater, which collected in depressions of rocky areas, was used by the Sanbut not appreciated as it was often greenish or had a brackish taste. Other water sources used bythe San were pan-like areas which stored rainwater for 3 to 9 months. The water was commonlyonly used during the cooler season of the year, when the mosquitoes were decreasing and thedanger of catching malaria limited. Melon fields in the Kalahari (Tsamma melon contain 90%water) and water-bearing tubers were and are still collected by the San of all language groups

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A history of water resource access in thesouthern Kalahari: San perspectives onthe role of modern technology indispossession and poverty

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throughout the year. Trees such as Marula and Manketti have holes where rain water and dewcollects easily. The San sucked this water from the holes using straws.

The dispossession processFor centuries the San fed on natural resources such as game, edible plants and water. A drasticchange occurred when Bantu groups and European settlers invaded San territories with theirlivestock during the 17th century. It is ironic that the San’s habit of sharing resources, thusproviding assistance to the new settlers in finding good pasture and water for the people andlivestock, was the beginning of the San’s almost entire dispossession of their natural resources. Themelons, the water-bearing tubers, edible berries, fruit and plants from the bush were eaten by thelivestock. Wild game was pushed out of the N!oresi or hunted with firearms. The San realised theirdispossession only after the ever-increasing livestock numbers of the intruders had depleted thescarce water and food resources. Without these natural resources at the basis of their livelihood,the San were forced to work for the intruders, who established a feudal relationship. The new settlers not only depleted the San’s resources but also introduced new technology such asdrilling and sinking boreholes. They pumped masses of water from deep in the ground and becamethe owners of the water, the most precious natural resource of the Kalahari. Subsequently the sip-wells of the San dried up. Within a short period the San were not only entirely dispossessed of alltheir natural resources but lost control over their ancestral land. The new settlers’ concept ofindividual land ownership disempowered the San completely. Now they were forced to live ontheir ancestral land as servants dominated by others who used and controlled the land.Some anthropologists have also contributed to the San’s dispossession. By designating the San as‘nomadic’ they provided governments of the southern African region with the argument that Sanshould not be allocated land or services. Government officials argued that, being ‘nomadic’, the Sanwould not be able to utilise land and services as they were roaming around from one place to the next. Although we have been dispossessed of our land, disempowered and marginalized, we areorganized. We also see that governments are noticing that we have a voice. For example, thegovernment of South Africa has returned a substantial piece of land to the San within their landrestitution programme. The government of Namibia has granted a conservancy to a group of San,which makes it possible for them to manage natural resources in their area. Only the governmentof Botswana continues to move people out of their N!oresi to make space for the tourism industryin the Central Kalahari Game Reserve. We will not give up, we will continue to unite and exchangeour experiences with other indigenous people in Africa and from around the world, so that we canlearn from each other.

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Joram/Useb is a member of the Hai//om community residing in Outjo, a small town near the EtoshaNational Park, once the Hai//om’s ancestral land. Born in 1975, he obtained an International GeneralCertificate of Secondary Education in 1996. Since 1999, he has been appointed the assistant to WIMSA*-coordinator. Joram/Useb is committed to assisting the Hai//om community, one of the San groups inNamibia, to resolve problems in a democratic and transparent manner.

[email protected]

* WIMSA (Working Group on Indigenous Minorities of Southern Africa) was established in 1996 atthe request of San in South Africa, Botswana, Namibia, Zambia and Zimbabwe to serve as a plat-form for communities to express their problems, needs and concerns.

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When the political leadership of the ‡Khomani San Association sat withthree of the most fluent speakers of the ancient N/u language and askedthem for guidance on the land claim and restitution process, the eldersidentified the three most important resources of their aboriginal culturein the Southern Kalahari: water, land and truth. This short summarydocument is based on the work that SASI has been doing with‡Khomani San elders from the Southern Kalahari in a Cultural ResourceAuditing project. It aims at bringing together dispersed elders therebyhelping the community to transmit valuable traditional knowledge tothe younger generation.

Nigel Crawhall has a MPhil in Linguistics from the University of Zimbabwe and a PhD on socio-linguistichistory of the demise of hunter gatherer !Ui languages in South Africa. From 1996, he worked as aconsultant to the South African San Institute (SASI) and the Working Group on Indigenous Minoritiesof Southern Africa (WIMSA). His work concerned cultural resource management support to thedisplaced Khomani San People of the Southern Kalahari. He is currently a consultant to the IndigenousPeoples of Africa Coordinating Committee (IPACC).

[email protected]

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This short summary document is based on thework that SASI has been doing with ‡KhomaniSan elders from the Southern Kalahari in aCultural Resource Auditing project. The projectaims at bringing together dispersed elders tohelp audit their traditional knowledge. Thisauditing has helped the community reintegrateitself and its sense of identity and history, as wellas transmit valuable traditional knowledge tothe younger generation. This community is in thedifficult situation of having been in diaspora forfifty years. Their ancestral languages have almostgone extinct. Only about twenty-eight peopleare full or partial speakers of the language(s).These language varieties are from the !Ui branchof the Southern San languages, related to |Xam.Today the San generally consider themselves tobe ‡Khomani. However the elders and the ethno-graphic research show there were several ethnicand linguistic groups. The broadest group calledthemselves N||ng !e (or Home People), andincluded the ‡Khomani as a subgroup. Therewere also neighbouring groups speaking relatedlanguages, the |’Auni and |Haasi speakers. Therewere also probably some southerly !Kung peoplein the area, speaking an unrelated language.

When the political leadership of the ‡KhomaniSan Association sat with three of the most fluentspeakers of the ancient N/u language, they askedthe elders for guidance on the land claim andrestitution process. The elders identified thethree most important resources of their aborigi-nal culture in the Southern Kalahari: !haa, !ão,//kx’am. That is: water, land and truth(1). Water,and access to water, has been a key variable inthe defence, conquest and colonization of theSouthern Kalahari.

The oldest members of the San community remem-ber a time when there were no boreholes in theSouthern Kalahari. There was no surface wateravailable except during the rains. The people livedoff those plants that absorbed water, including theall important tsamma melon (Citrillus lanatus), afavoured wild food with plenty of liquid. Duringthe 19th century, settlers could not penetrate theinterior of the Southern Kalahari (where thepresent borders of South Africa, Namibia andBotswana come together) without using the tra-ditional technology of the San people.

When this region became engulfed in the Nama-German war (1904-1908) that spilled over fromneighbouring Namibia, the humble tsamma melonbecame critical to all parties. Simon Koper’s horse-mounted Nama troops swept down to Rietfontein,then up through the Auob and N‡osob dry riverbeds, surviving only on the water of the melons.They were soon followed by the German imperialarmy that had to water its men, horses and camelsentirely on desert food. This all took place in thepeak of summer when temperatures soar up to 50degrees in the shade – and there is very little shade.Both sets of aggressors kidnapped San trackers tohelp them through the endless sand dunes andfind all the crucial plants to feed and water them.Elderly San still recall hiding in the dunes for fear ofbeing shot by German troops. (Source: Keis Browand Elsie Vaalbooi)

The San themselves had a number of techniquesfor capturing and managing water. Ostricheggshells would be cleaned out and buried deepwithin the red sand dunes during the rainy sea-son. Water would percolate down through thesand dunes, weeks after the rains and the surfacewater were gone. The eggs would be recoveredwhen necessary and plugged with a wax stopper.To this day the practice continues on some farms,though people now use plastic bottles (Source:Petrus Vaalbooi).

The government of Britain and the Union ofSouth Africa were deeply disturbed by the sover-eignty issues involved in the German invasion ofthe Southern Kalahari, and soon Britain was atwar with her previous ally. The South Africangovernment of the day decided to recruit whitesettlers to fill up the frontier and consolidate theborder. Boreholes had to be sunk to achieve this.During the early 1920s, the government spon-sored white farmers to sink boreholes, particu-larly along the riverbeds (the Auob, N‡osob,Molopo and Kuruman) where subterraneanwater was easily accessible.

The sinking of the boreholes had a drastic effecton the Southern Kalahari. Firstly, the seasonallynomadic San people lost all of their territory in amatter of a few years. Fences were put up andpeople were not permitted to move freely.Secondly, as elsewhere, the settlers went on killingsprees, devastating the wild animal population. By

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1927 there was a famine throughout the area, asgame had become so scarce. This drove the San tolive and work on farms where they would earn ameagre income to afford to buy food that hadonce been theirs for the taking and managing.Farmers banned the San from practicing their tra-ditional religion, including the powerful trancedance that was used for healing. The San identitywas ruthlessly suppressed. First there were scien-tific efforts to determine authenticity, thatinvolved measuring the heads, noses and genitaliaof people. Later, all San were forcibly reclassifiedas being of mixed race. During this time much ofthe culture, language and traditional knowledgewas not passed down to the younger generationfor fear of stigmatising them. All of this because ofborehole technology.

Some areas of the Southern Kalahari could not beaccessed in the 1920’s, as the water was too deepbelow the surface for the wells to reach. This area,particularly in what was once designated as theOld Kalahari Game Reserve, remained an open ter-ritory. San families would use this area for emer-gency food relief, and would traverse it while seek-ing new work opportunities and visiting relatives.After the 1950’s, however, new technology led tothe fencing and partition of this last wild area.

The area of the Kalahari Gemsbok National Parkused to be the traditional territory of theSouthern Kalahari San. Most of the San wereforced to leave the park in 1936. A few familieswho helped the warden with game managementwere allowed to stay, and even to hunt andgather, up until the beginning of apartheid inthe late 1940’s.

The Southern Kalahari is composed of a number ofdifferent soil types, but the predominant type isthat of red sand dunes, that run for up to severalhundred kilometres. These are permanent,unshifting dunes. When it rains, water runs downbetween two dunes. This is called a ‘street’.Where several streets meet and the water cannotrun off anywhere a ‘pan’ is formed. A pan is a flatindentation in the earth where water collectsand sits until evaporation is complete. A pan canbe as small as 500m, or wider than 30km. Some ofthese pans may have been in place for up to amillion years. According to the San (and con-firmed by scientists), the chemical composition of

each dune and pan is distinct. Some pans are nowmined for salt. The San know which streets pro-duce the best plants, and which pans havepotable surface water after rains. The water insome pans will cause immediate diarrhoea or caneven be poisonous to humans. However, thereare traditional methods for purifying some of thewater. The San give names to pans to rememberthis, such as Large Diarrhoea Pan (Xausndi ‡gas).

During the process of the land claim against theKalahari Gemsbok National Park (now KgalagadiTransfrontier Park), the Park officials argued thatthere was no potable water in the park. A map-ping project has demonstrated that not only iswater available through the plant life, but thereare also a number of sites where water can befound on the surface or just below the surface.These water sources were already pointed outseventy years ago to the settlers and the warden,and are still known to some of the older people.

On 21 March 1999, the South African governmentawarded the Southern Kalahari San almost40,000 ha. of land outside the national park, and25,000 ha. inside the park as restitution andredress for their losses. On the day that ThaboMbeki gave the land back, the N/u speaking eld-ers gathered and prayed to their ancestors tosend rain. As Mr. Mbeki climbed into his limousineto depart, a large rain cloud moved over the landsettlement site and rained huge drops of rain inthe otherwise hot and dry desert. For many of thewesterners this was a marvellous and inexplicablephenomenon.

After the transfer of the first farm to the San inDecember 1999, a great rainy season began, withthe highest rainfall since the early 1970’s, whenthe last San were expelled from the park. The newrains have restored all of the wonderful plant lifeand replenished the animal life. Some of the eld-ers are back on the land and are taking theirgrandchildren out into the dunes to collect tsam-mas, gemsbok cucumbers and desert onions. Somuch rain fell that the streets filled like reservoirsand both the N‡osob and Auob began to flow foronly the third time in a hundred years. Ironically,the massively irrigated agriculture along theOrange River, land that was taken from theindigenous peoples by the settlers, was swampedwith water and the crops started rotting that year.

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ENDNOTES (1) Later Ouma /Una added a fourth, ll’ã’a, meaning to loveone another with respect.

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The fact that the forests of Totonicapán are still in a good natural state is because of the collectivecontrol and resistance that the Maya-Quiché culture has exercised. It is safe to say that it would notbe possible to deal with this natural resource without alluding to the community organization.Moreover, in some communities, forest and water issues determine the forms of local organization,based on specific collective relationships. For example, the indigenous council is the mostimportant community political organization.

In addition, the Totonicapán forests are not only natural ecosystems, but also constitute a culturalbenefit, to such a degree that they strengthen the collective identity of the Maya-Quichécommunities. These forests fulfill a transcendental hydrological function for the local and regionalareas of Guatemala. The communities understand the importance of the water-forest relationship,and the seriousness of the consequences that they could face if they place at risk an element sovital to the survival of their people.

In each of the communities there is a water source committee, whose fundamental function is theconservation of the water resources. To accomplish this, the people contribute a large number ofwork hours, called faenas, which represent sacrifices, hardships and economic expense, given thatthe work is done ad honorem. This process is not understood or supported by state agencies, whichcreate obstacles and politicise the actions taken to protect water sources and sustainable forest use(for example, to prevent deforestation).

There is a committee for each water source and the members constitute the general assembly.The board of leaders is composed of nine people (women and youth participate) who serve fortwo years. The board conducts activities that include the maintenance of the entire distributionsystem, the organization and distribution of work crews (faenas) to clean up the area aroundthe water sources and water containment tanks, and reforestation. They prevent tree-cutting,identify new water sources and evaluate their capacity. In communities where the committeesare well organized, there are regulations for the use of this vital liquid. The board of leadersestablishes monetary quotas subject to previous consultation and consensus, which they areresponsible for managing transparently. In addition, a member who does not fulfill his or herfaena responsibility must pay a monetary fine, and if the person fails to attend a committeemeeting he or she will suffer the same penalty. Some visionary committees have opened bankaccounts or have deposited their funds in a local cooperative.

Periodically, the community celebrates a Mass, a worship service or a Mayan religious ceremony toshow their appreciation to God for the benefits received through this natural water source.

Thus, the communities fulfil the role of guardians of the forest and the water sources. And, inkeeping with this fascinating reality, the people connect practices with community values, such asmutual assistance (TOBANIK), communal autonomy, common law, community organization,

The guardians of trees and waterE chajinel rech le che’ ruk le ja’

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consultation and consensus, and community service, among others.

A majority of the committees have joined an organization called ULEU, CHE’, JA’, which means“Land, Tree, Water” respectively, and they have achieved the development of a very importantmanagement capacity.

Finally, we cannot fail to mention the problems that these communities face, the advance of theagricultural frontier due to uncontrolled logging, and the pressure of population growth.Totonicapán has a population density of 315 inhabitants per square km., while the nationalaverage is approximately 115 inhabitants per square km. The politicisation of the communityorganizations by the governing political party, and the process called modernization whichtranslates into the Plan Puebla-Panamá, reveal some of these issues. Faced with these situations, weare strengthened by our culture and its values and social identity.

Santos Augusto Norato is the President of Totonicapán Indigenous Mayor’s office and a memberof the Totonicapán community. He is also Director of the Training Centre – Cooperation for RuralDevelopment of the West (CDRO), in Aldea Santa Rita, Salcajá, Quetzaltenango, Guatemala.

[email protected]

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The spiritual connection to water that indigenous societies maintain asan integral aspect of their culture is a basis for countless water conflictswith outside, predominantly Western, forces for development. WhileWestern cultural values do give some attention to a spiritual dimensionof water, it is very much a minority view. The dominant value systemdetermining how water is utilized in Western culture is basically aneconomic one. In indigenous societies the situation is reversed. Thedominant cultural perspective places great importance on spiritualaspects of water and water bodies. Internal debates revolving arounddevelopment options nonetheless often reflect economic considerationspromoted by the outside dominant society. More explicit understandingof indigenous value systems by the Western world would help relievecultural pressure on indigenous societies, and to the extent that theWest might emulate indigenous notions of humanity’s role vis-à-visnature, could benefit the cause of sustainable development worldwide.

David Groenfeldt is an anthropologist and independent water consultant in Santa Fe, New Mexico (USA).He is the Coordinator of the Indigenous Water Initiative (www.indigenouswater.org), which providesassistance in water planning to indigenous communities.

[email protected]

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Do indigenous perspectives on water represent atype of spirituality that is absent from Westernsocieties, or are they fundamentally similar? Thispaper explores the nature of water and spiritualityin the ‘West’ as contrasted to indigenous soci-eties(1). Two interconnected arguments are putforth in this paper. The first is that Western viewson water reflect significantly distinct values,which contrast and clash with indigenous valuesystems. While there are spiritual traditionswithin Western society that resonate with indige-nous values regarding nature (and hence, water),these Western spiritual traditions identify lesscompletely with Nature, and externalise a deitythat is seen as separate from Nature. The secondargument is that even the more naturalisticthemes that are found in Western religionsoccupy minority positions within Western society.By culturally relegating the spirituality of natureto that of a minority tradition, Western societyhas set the stage for economic exploitation ofwater and other natural resources, without theenvironmental restraints attached to a moredominant spiritual perspective.

While these two arguments may sound like familiarcriticisms of Western society, my intention is notto criticize, so much as to suggest some construct-ive implications, namely that indigenous societieshave much to teach us about the profound reli-gious and philosophical relationship of man andnature, as well as about the practical relationshipof human societies with natural ecosystems.Indigenous views about water are much morethan cultural curiosities that add an interestingdimension to international discussions of water.Indigenous perspectives about water are simulta-neously a warning and an insight that can help usall – together – to find a development path thatis environmentally sustainable.

The Western cultural theory of water

Let me begin this section by asking the reader’sindulgence in my choice of terminology. I am try-ing to capture broad meanings, and this requiresbroad categories to which the perceptive reader

can find many exceptions. The category of ‘theWest’ has been noted(1), and my claim that there issuch a thing as Western culture is perhaps easilychallenged. And even if there is such a culture,does it have a theory about water? On this point,I will simply assert that there are broadly-heldassumptions in Western culture about what wateris and is not, and to maintain simplicity, I refer tothese assumptions as a cultural theory of water.

Water, in Western cultural theory, is a resource. Itis not alive, it is inert, and it can be fully definedin terms of its physical properties. It has no con-sciousness, and it has no life. It is neither plantnor animal; it is a type of mineral, a liquid one(usually) but very much a mineral. It has no valuein itself, but has great potential value in beingapplied to some productive purpose. There is nobenefit from water’s existence other than theextent to which humans can benefit, directly orindirectly, from the water itself, or the environ-ments that water supports (e.g. stocks of foodfish that depend on the viability of a lake ecosys-tem). Water is a resource, much like coal or oil orphosphate or gold. It is not only culturally per-mitted, but actually culturally preferred to makeuse of the resource by ‘mining’ it, or recovering itin whatever way is technologically feasible.Choosing not to recover the resource, electingnot to utilize the potential benefits of theresource, is considered to be wasteful and in thissense, even sinful.

The environment within which water is found isalso a resource, which can be utilized for product-ive benefit. Recent views about the water envi-ronment have changed to accord greater eco-nomic value to the environmental services of theecosystems that water supports, such as a riverineenvironment that includes fish, birds, wildlife,wetlands and the associated plants and micro-organisms, etc. This recent appreciation of thebiological aspects of river systems, and the asso-ciated economic benefits of water ecosystems,has led to reconsiderations about the desirabilityof water diversions for irrigation, and reanalysisof the costs and benefits of hydropower dams.But while the equations have changed with thenew values accorded to biological and ecologicalfactors, the cultural theory underlying the equa-tions has stayed the same: the value of water isdefined in economic terms(2).

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Minority views on waterwithin Western culture

Western culture masks many minority voices thatprovide richness and depth to the total culturalexperience. The bubbling of minority discoursealso serves to define the position of the dominantculture, by constantly challenging it and forcingclarification – and sometimes successfully inject-ing reforms into the dominant position. Withinthe contemporary Western discourse aboutwater, there is a lively debate about the extent towhich water is an economic good or a social good.The World Bank, for example, calls for borrowingcountries to treat water as an economic good,that can be bought and sold, and that has eco-nomic value (measured in monetary terms).Against this dominant view is the liberal minorityperspective that water is a social good that is nec-essary for survival, and should be made availableto all. This debate between pure economic valua-tion and that of a blended economic-plus-socialvaluation, constitutes much of the policy dis-course about water. Other minority views, partic-ularly spiritual ones, can also be found withinWestern society, but these have little chance ofgaining serious attention when the focus is on thebattle between the proponents of economicthinking versus those of more social thinking.

Historically there is a long tradition of environ-mental spirituality within Western culture, whichhas always remained safely marginalized fromthe mainstream. The followers of St. Francis ofAssisi fit into this category. In the United States,the 19th Century Transcendentalist writers,notably Henry David Thoreau and Ralph WaldoEmerson, articulated a spiritual interpretation ofthe natural world. The reaction of mainstreamAmerican society to spiritual interpretations ofnature was to treat these as metaphors, withoutacknowledging a true spiritual aspect of nature.The virgin pine forests of Wisconsin were awe-inspiring ecosystems reminiscent of Europeancathedrals, perhaps, but were not accorded thestatus of sacred places in the eyes of the 19th

century white settlers who encountered them.Nor were the streams and rivers – which wereabundant with fish and supported a complexarray of wildlife – considered sacred to thesewhite settlers. Clear-cutting the forests and

upsetting the hydrology of the streams was aform of manifest destiny that took on a sense ofreligious duty. Today the only patch of forest inthe state of Wisconsin that has not been clear-cutis the reservation land of the Menominee Indians(Davis, 2000). The streams running through theselands still contain some fish, but they can beeaten only sparingly to avoid build-up of danger-ous carcinogens, the result of 20th century indus-trial development.

Contemporary calls for a new environmentalethic have received little attention in the rush foreconomic exploitation of natural resources.Compared with indigenous spirituality, theWestern ethical approach to nature is an emascu-lated form of spirituality, having a moral author-ity but lacking a religious one. The religiousauthority that is part of Western culture – in theform of the Catholic, Protestant, and Jewish reli-gions – lacks a credible environmental message.Indeed, Christianity is often cited as being part ofthe problem (e.g. White, 1967). Efforts are beingmade, however, to promote a new environ-mental ethic, not only inside organized religions,but also outside the Church, through an environ-mental ethos rooted in various traditions, includ-ing 19th century American transcendentalism. Forexample, the National Catholic Rural LifeConference (NCRLC) is formulating a ‘waterethic’ that seeks to respond to the appeal ofPope John Paul II for Catholics to undergo an‘ecological conversion’, a moral call to protectthe environment and make the earth a placewhere all life is valued and can grow in harmony(Kautza and Grontsky, 2003).

The Earth Charter initiative promotes an environ-mental ethic that reveres water bodies as intrinsi-cally important, independent of their economicvalue to people(3). The Charter reflects diverse tradi-tions, both religious and secular, brought togetherin a consensus statement that avoids spiritual asser-tions to render it palatable to believers of any faith,as well as atheists. The moral imperative is to hon-our the Earth as our mother, which can be inter-preted religiously, or through evolutionary ration-ality in the sense that human life, as well as all otherlife, is derived from a family tree originating withthe Earth itself. The Earth Charter seeks to use thiskinship between people and the Earth as a moralbasis for protecting the Earth’s natural resources.

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In both Christianity and within the environ-mental movement, there are strong currents ofkinship with the Earth, and a spiritual perspectiveon the nature of water itself. While water is notviewed as a form of life, it is viewed as somethingsacred, in the sense that it is a basis for life, and itis a major shareholder in the stock of Earth’sresources. To the extent that the Earth itself issacred, then water too is sacred.

If Western culture contains these sacred views ofwater, then why is water so abused in practice?There are two parts to this answer. First: the spiri-tual message about water is a qualified one, thatdoes not explicitly acknowledge water or waterbodies as having a spirit quality. Rather, water issacred through a logical framework of the earthand all creation, as representing a sacred trustfrom God (Christianity) or from evolutionary his-tory (Earth Charter). The spiritual message, inother words, is muted. It is there, but it is weak.Secondly, the spiritual perspective about theenvironment (including water), even in thismuted form, is very much a minority voice withinWestern culture, and even within Western reli-gions. The mainstream religious expressionswithin the United States, for example, viewwater as a secular commodity that can beexploited without religious or moral compunc-tions. Proponents of environmental ethics repres-ent minorities within the organized religions of theWest, as well as within Western society generally.

Case study: the Silvery MinnowThe Rio Grande River, which forms much of theborder between the United States and Mexico,has become intermittently dry in parts of itsupper basin in New Mexico (US), because ofdiversions for agriculture and urban / industrialuse. All the waters of the river are legally ownedby the various water users – farmers, private com-panies, and municipalities – and the federal gov-ernment has constructed a network of dams toregulate the flow and ensure that water is avail-able to the owners. Not only is there no waterallocated to environmental flows, but the wateris actually over-subscribed and is supplementedby an inter-basin diversion from the adjacentColorado River system.

The fact that a major river has gone dry due towater diversions caused no particular alarm untilenvironmental groups brought a lawsuit to forcethe federal government to release water storedin the dams, in order to provide an environmen-tal flow. The legal basis for the suit was to protectan endangered species of small fish, the SilveryMinnow (Hybognathus nuchalis), whose habitatcoincided with the stretch of river that hadbecome dry. Under environmental laws alreadyin place, water withdrawals from federal projectswere not allowed to endanger the survival of afish (or plant) species.

The initial outcome of the legal action was acourt order instructing the concerned govern-ment agency (the Bureau of Reclamation) torelease water to preserve the fish habitat, even ifit meant cutting contract-water deliveries tofarmers and municipalities. This legal decisionwas quickly circumvented by political action inthe federal Congress, where both the Republicanand Democratic Party senators from New Mexicojoined forces to push for an exemption in thefederal Endangered Species Act. The final resultis an attachment to a Congressional bill thatexpressly forbids the government agencies con-trolling the Rio Grande water to reduce alloca-tions to water rights holders (the various munici-palities, farmers, industry, etc) for the purpose ofsaving the habitat of the Silvery Minnow.

What cultural values are being expressed in theSilvery Minnow debate? Private ownership rightsto water are viewed as sacrosanct – literallysacred – so long as there is water that can bediverted. The survival of the Silvery Minnow andthe health of the riverine habitat are also seen asimportant, but these concerns cannot match thegreater priority of meeting the water commit-ments made to legally recognized water cus-tomers. The Mayor of Albuquerque, the largestcity along the upper Rio Grande, was enthusiasticat hearing the news that the city’s waterallowances would not be cut to create an envi-ronmental flow for the Minnow. “I’m a veryhappy mayor this afternoon,” he said. “All ofAlbuquerque should be dancing in the street”(5).Water for nature is seen as a luxury to beaddressed only after the human customers havebeen fully served.

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Water and spirituality inindigenous societiesFor indigenous societies, the natural, spiritualconnections linking humans, water, fish, and theriver itself preclude the option of placing humandesires for an unreduced quota of water aheadof nature’s needs. In contrast to Western culture,the indigenous spiritual perspective of the envi-ronment is clearly articulated and directly experi-enced. It also provides a more dominant ‘voice’within the society, than is the case in the West.The introductory words of the IndigenousPeoples’ Water Declaration(6) very clearly demon-strate the identification that indigenous spiritu-ality makes between people and Nature:

• “We, the Indigenous Peoples from all parts ofthe world assembled here, reaffirm our rela-tionship to Mother Earth and responsibility tofuture generations to raise our voices in soli-darity to speak for the protection of water.We were placed in a sacred manner on thisEarth, each in our own sacred and traditionallands and territories to care for all of creationand to care for water. • We recognize, honour and respect water assacred and sustaining. Our traditional knowl-edge, laws and ways of life teach us to beresponsible in caring for this sacred gift thatconnects all life.• Our relationship with our lands, territoriesand water is the fundamental physical culturaland spiritual basis for our existence. This rela-tionship to our Mother Earth requires us toconserve our freshwaters and oceans for thesurvival of present and future generations…”

Water is not only an aspect of Indigenous spiritu-ality, but a very major component of that spirit-ual world. Water, whether as a substance, or in theform of water bodies (rivers, lakes) and meteor-ological phenomena (rain, snow, fog, clouds), isseen through a spiritual – not an economic – lens.Water is not viewed as a way of making money anymore than children are seen as sources of revenue.Money can, of course, be derived from the labourof children, and from water projects, but this is notthe dominant motivation for having children, orfor protecting water. The spiritual perspective ofindigenous people is one that is challenging forWesterners to appreciate, given our own peculiarcultural perspectives as outlined above.

But if indigenous people view water as such animportant spiritual aspect of life, then how is thisreflected in the actual decisions they make aboutwater development? When money is at stake, arethese spiritual values strong enough to over-ridethe monetary values? Does water developmentwithin indigenous territories reflect the valuesarticulated in the Indigenous Declaration onWater? This question is not entirely fair, sinceindigenous societies are normally in a position ofpolitical disadvantage vis-à-vis a dominant societywhich seeks to impose, even with good intent-ions, its own value system – which is generallyWestern in its broad features.

Water development projects within Indigenousareas typically are imposed on the indigenouscommunities by outside forces of governmentand /or private industry. Many of the papers inthis present volume document cases of outsidepolitical, economic, and even military pressure onindigenous communities to force particularforms of water-related development. Perhapsthe most familiar examples of forced develop-ment are hydro-power dams built on indigenouslands for the purpose of exporting power to non-indigenous areas. The injustices of dam develop-ment have been carefully documented by therecent World Commission on Dams, and recom-mendations adopted for empowering indige-nous communities regarding dam-related devel-opment decisions(7).

But what about cases of indigenously controlleddevelopment, where indigenous communitiesthemselves decide whether and how waterdevelopment will occur? When indigenous com-munities themselves are in charge, do spiritual val-ues become evident in the decisions made aboutwater development? Here we encounter complex-ities of meaning and debates about assigningresponsibility for water development decisions. Ifan indigenous community agrees to allow a damto be constructed that forever alters the riverineenvironment that has nourished that communityfor generations, is this an example of free deci-sion-making? Was the decision made by the entirecommunity or by a political minority that hasusurped control? Did spiritual values pertaining tothe river enter the decision-making process?When confronted with actual cases where indige-nous communities have literally sold their natural

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resources to outside developers, it is easy to pre-sume that spiritual values are really superficial,and that money has far greater power than spiri-tual considerations. Do indigenous societies reallyhold the spiritual values that their leaders claim?Or are these values only tools for political negoti-ations and international statements?

The Case of Black Mesa (Arizona, USA)The Peabody coal mine that straddles the triballands of the Hopi and the Navajo in the high aridplateau of northern Arizona, has a contract withthe Hopi tribal government, to extract pristinegroundwater for its mining operations. Thewater is mixed with the coal to form a slurry,which is conveyed by an open aqueduct nearly400 kms to an electrical generating plant servingthe cities of southern California. The contractallows Peabody Energy (a subsidiary of LehmanBrothers) to pump water from an aquifer, whichfeeds the springs and few streams that comprisethe sole source of water – other than infrequentrainfall – for the entire Hopi tribe, and for theNavajo communities in the vicinity. As a result ofthe pumping, which has gone on since the 1960s,the Hopi streams are starting to dry up, and theceremonies that have always been integral toHopi religion can no longer be performed. It ispossible (though expensive) to bring drinkingwater in by truck, but the religious base of thetribe is now at risk of being permanently lost.

How has the Hopi tribal government allowed thisto happen? There is, of course, a history. Thetribal government is a relatively recent (1947)creation, imposed by the federal Bureau of IndianAffairs (BIA) partly for the purpose of having aconvenient body to consent to a coal-mine lease.There are legal barriers to breaking the contractand stopping the mine, and most importantly,there are financial considerations. The vast major-ity of the tribal government’s budget derives fromthe royalties and fees collected annually fromPeabody. The tribal council is not in favour ofrescinding the contract, apparently for this finan-cial reason. And what of the spiritual considera-tions? Both the springs, and Black Mesa itself, havealways been considered sacred to the Hopi, andyet here is a Hopi tribal council that votes to con-tinue the contract, in exchange for its operatingbudget. Has the Hopi tribe sold its spirituality tothe coal-mine?

If we analyse the Black Mesa case in terms of out-comes – the coal-mine is operating with the con-sent of the Hopi government – then we could saythat spirituality has lost out to financial pres-sures. But if we look at the process by which thisoutcome has resulted, then we see a differentpicture of spiritual values. There is strong opposi-tion to the mine within the Hopi communities.Indeed, there is suspicion of the tribal govern-ment itself, seen by traditionalists as colonialtampering with traditional Hopi institutions.Hopi opposition to the mine is formalized inBlack Mesa Trust(8), an organization dedicated tothe preservation of the water supplies that thePeabody coal mine is depleting. The organizationis headed by a formal tribal chairman, who haschanged his own views about the mine sinceleaving office, and who has galvanized manyHopi to speak out.

The approach of Black Mesa Trust is to appeal topeople’s spiritual values about water in general,and particularly the sacred springs which are nowgoing dry from over-pumping by the miningcompany. The argument is not based on econom-ics (although the argument could be made thatthe tribe’s contract with Peabody coal drasticallyunderprices the water), nor is it based primarilyon environmental considerations (though thedeterioration of the aquifer is an important con-cern). The message of Black Mesa Trust is prima-rily spiritual and cultural: the sacred springs aresuffering just as the language is suffering. Thenext generation is in danger of being left with-out Hopi water and without Hopi language. Thismessage resonates with the Hopi people becausetheir spiritual view of water remains largelyintact. They are losing their water, but not theirvalues.

Comparing Western andindigenous spirituality about waterIndigenous societies, in general, hold spiritualvalues about water that are not found in themainstream of Western culture. In the discussionabove, I have tried to show that Western culture

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does contain some minority views about the spir-ituality of water, but these views do not shapeactual decisions about how water is used. Riversare protected in the West only where there is aneconomic reason to protect them. Even Westernenvironmental movements subscribe to eco-nomic values. In IUCN’s recent publication aboutthe importance of environmental flows (Dyson etal 2003), for example, the rationale presented isbased purely on economics – environmental eco-nomics to be sure – but without any appeal tospiritual or even aesthetic argumentation.

Indigenous societies, in contrast, invariably viewwater and water bodies as spiritual phenomena.They might fail to protect those water bodies fromexternal forces, and even from internal forces, butsuch failures should not be misinterpreted neces-sarily as failures of values; rather these are morelikely to represent political failures. For most mem-bers of indigenous society, their spiritual valuesabout water are still very much intact. It is theminority voices of secularism within indigenoussocieties that find powerful friends among out-siders with vested interests in exploiting indige-nous water resources. These are the forces thatdrive water development in indigenous areas.

It has been the presumption of both outsidewater experts as well as the more secular mem-bers of indigenous societies, that Western-stylewater development has much to teach indige-nous societies. The future of indigenous societies,according to this view, will be the adoption ofWestern approaches. Certainly history points inthis direction; that indigenous values will eventu-ally fall in line with the Western values, asWestern technology dominates the world scene.Yet Western technology is not doing very wellwith managing water. The long-term prognosisfor the world’s water suggests that an accommo-dation needs to be made with the environmentin the interests of long-term food production.

Does indigenous spirituality regarding waterhave a future? Is it destined to succumb toWestern concepts of secular rationality? Thereare many reasons to suggest that indigenousvalue systems do indeed have a future, and thatas alternatives to Western culture become fewerand fewer, the importance of valuing diversity isalso becoming more appreciated both inside and

outside indigenous societies (Groenfeldt 2003).Within indigenous societies, this process is one ofcultural revitalization. From the outside, i.e. fromthe Western perspective, an appreciation ofindigenous values comes from education. Thiswas the basic intention of UNESCO’s co-sponsor-ship of the sessions on Water and CulturalDiversity at the 3rd World Water Forum.

Western appreciation of cultural diversity regard-ing water, however, needs to go beyond the levelof, for example, appreciating tribal art in a Parisgallery, to one of respecting a society’s culturalright to a diversity of thought and values. It is thelack of genuine respect for cultural diversity thatlies at the foundation of many controversiesabout water development. Does the US Bureauof Indian Affairs respect the Hopi view of theirsprings as sacred places? Did Hydro-Quebecrespect the Cree view of the animals they huntedas sacred beings? Does the World Bank respectindigenous views of sacred river spirits? It is prob-ably safe to say that a position of ‘appreciation’of indigenous spirituality is easier for Westernersto adopt than is genuine ‘respect’. Appreciationof the river spirit means that the dam can still bebuilt, while respect for the spirit implies that thedam might not be built.

The differences between Western views on waterand the more spiritual, indigenous values aboutwater suggest great potential for conflict, but,with education, there can also be cooperation.The emerging Western approach to water man-agement that accords greater economic value tohealthy aquatic ecosystems offers particular reasonfor hope. The European Union’s recently adoptedWater Framework Directive, for example, requiresrestoration and maintenance of riparian habitats.The survival of the Silvery Minnow would beassured if the state of New Mexico adopted thesame policies. By agreeing on the importance ofhealthy water ecosystems, a major potential forvalue-based conflicts can be reduced.

The purpose of learning more about indigenousspirituality of water goes beyond environmentalstrategies, however. The West has much to learn –or to relearn – from the indigenous view of man’sspiritual relationship with the rest of nature. Theethical perspective embedded in indigenousviews about nature and water is largely missing

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from the Western toolkit on water management,and we Westerners need to acquire some ethicaltools. It is in everyone’s interest that Western societylearns from indigenous peoples what it means tofeel a kinship with the earth, with the land, andespecially, with water.

ENDNOTES (1) The ‘West’ refers in this paper to the industrialized, so-called ‘developed’ countries, whose centre of gravity is inNorth America and Europe (the geographic ‘west’) but which also include many Eastern countries (e.g. Japan,Korea). I use the term even to refer to many so-called‘developing’ countries which are embarking on amaterialistic development path borrowed from the West,including China, India, Brazil and the economic elite of most developing countries.

(2) Economic analysis can include ‘non-economic’ variablessuch as landscape value, cultural heritage value, and evenreligious value, but only if they can be reduced to a commoncurrency which, in economic analysis, is monetary. This typeof analysis has been applied to the multi-functional benefitsof agriculture and the same approach could be applied tomulti-functional benefits of water.

(3) The text of the Earth Charter is available atwww.earthcharter.org.

(4) In water conflicts, nothing seems to be ‘final’ but this is the situation as of November 2003.

(5) Taken from the on-line edition of the newspaper, The Santa Fe New Mexican, 7 November 2003(www.santafenewmexican.com).

(6) The full text of the Declaration, which was drafted by indigenous participants at the 3rd World Water Forum in Kyoto, Japan, in March 2003, is available in this volume, as well as atwww.indigenouswater.org.

(7) The report of the World Commission on Dams was released in November 2000 and is available fordownload at www.dams.org.

(9) For details about Black Mesa Trust, see their website:www.blackmesatrust.org.

REFERENCE LISTDavis Thomas, 2000, Sustaining the forest, the people, andthe spirit. State University of New York Press.

Groenfeldt David, 2003, The future of indigenous values:cultural relativism in the face of economic development.Futures 35(9), pp 917-929.

Dyson M, Bergkamp G, Scanlon J eds., 2003, Flow: theessentials of environmental flows. IUCN Water and NatureInitiative (www.waterandnature.org).

Kautza Tim, Gronski Robert, 2003, A water ethic to renewthe earth. National Catholic Rural Life Conference website(www.ncrlc.com/WaterEthic-RenewEarth.html).

White Lynn Jr, 1967, The historical roots of our ecologiccrisis. Science 155, 1203-7.

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“Here, poverty is widespread, but when we make proposals, they treatus like subversives. The thing is that the government doesn’t understandreality. They tell us that this is politics. Of course it is. Do we have a rightto politics, or can only the government talk about that? We have ourown thoughts – is that a crime?”(Villager from Ajllata Grande, Bolivian Altiplano, in PULSO No. 38)

Rocio Renee Bustamante is a researcher at the Andean Centre for Water Management and Use (CentroAGUA), San Simón University. She is also responsible for the Water Law and Indigenous Rights (WALIR)project in Bolivia, and pursuing doctoral research at Wageningen University, the Netherlands.

[email protected]

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Background

Over the past few years, demonstrations byindigenous peoples have shaken a number ofLatin American countries and led them to thebrink of serious crisis. This has prompted socialscientists and political analysts to attempt tounderstand what is going on, since somethingcrucial is obviously happening – but what?

Since the 1990’s, the struggle for land and naturalresources has been a key issue for Latin America’sindigenous movement. However, we mustremember that this “is not a right to beachieved in a vacuum, nor limited to purely sym-bolic aspects – the Earth and its resources are itsmaterial support” (Toledo, 1996). It is preciselyfor that reason that the main demands duringthese last few years have involved control overand management of these key resources. Thestrategy of struggling for territorial ownershiphas been displaced by the quest for immediaterecognition and respect for the rights to controland manage certain resources. Obviously, thisshift in strategy does not mean that indigenouspeoples have given up on territorial demands,but they are acting with ’political realism‘ andare responding to concrete situations that call forurgent action to avert the day “when indigenousrights are finally recognized, if such a day evercomes, [but] only a few resources will actually beunder indigenous control” (Toledo, 1996).

This position, which some consider more prag-matic and focused on the short term, attempts toachieve protection for natural resources that arelocated in territories belonging to, or that areunder the control of indigenous peoples andrural communities, so that their rights will not beaffected by third parties. Accordingly, proposalshave been formulated and measures taken,including:

“(…) protection of vulnerable groups andareas, positive discrimination, safeguardingof the ecological balance. Concrete legalstrategies may be assertive, such as demand-ing exclusive concession, or mild, such asapplying for preferential rights, with mid-range options such as prohibiting concessionsin certain areas or resources”. (Ibid.)

Although significant headway has been made inachieving recognition for the rights of indige-nous peoples and rural communities, in mostcases they “(…) have to overcome a series of hur-dles, as a result of the complexity and high proce-dural and / or enforcement costs of norms andprocedures to operationalise their rights”(Marinissen,1998). This has a negative impactbecause, if we add to the bureaucratic difficultiesthe lack of political will, we can envision a seriousthreat to respect for and actual fulfilment ofthese rights. Moreover, in some cases, this recog-nition also poses various dilemmas, some ofwhich we will explain below.

So, in summary, we could say that the process ofrecognizing diversity, based on the right-to-be-different approach, is just getting off theground. And, like any beginning, this poses aseries of challenges that must be addressed.Considering pluri- or multi-national issues leadsus to think more seriously about other issues,such as participation and societal oversight,democracy and autonomous governance on dif-ferent levels (local, ethnic, etc.).

In the more specific domain of water resources,the debate begins with the legislative amend-ments undertaken by several countries in theregion. In some, such as Ecuador, Peru and Bolivia,governments have put forward proposals, thatinclude de-authorizing the rights of indigenouspeoples and rural communities who had rightsand had been managing water since pre-Conquest times. In certain cases (Ecuador andBolivia) legal counter-proposals have even arisen,with the main feature of emphasizing the essen-tially community-based, social and ecologicalnature of water, without denying its economicimportance. The voices raised in several places todefend this latter vision have led to reconsideringprevious approaches and recognizing the existingrights of indigenous peoples and rural communi-ties, as well as guaranteeing their participation ininstitutions created to manage water resources.However, most current proposals are still insuffi-cient, in the context of the scope required byinternational standards, such as the ILO’sConvention No. 169. For example, if these pro-posals recognize the rights of indigenous peoplesto water sources located in their territories, theydo so only in terms of ‘actual use’, or they also

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consider the rights acquired by powerful stake-holders, which limits the scope of this type ofprovision.

In Bolivia, this situation is even more complex,since unlike other countries even in the Andeanregion, we have a government that is weak andplays a negligent role in water management.Accordingly, water management has beenhandled autonomously and independently, withonly occasional outside intervention (except fordevelopment projects), especially in rural zones.It is only recently and in response to pressurefrom international co-operation agencies, thatthe Bolivian government has attempted to play amore active role in water management, mainlyby enacting laws to regulate water use rights.

This unique feature of Bolivia’s situation hasenabled local management and water rights toevolve(1) based on different cultural principlesand values such as the ‘uses, customs and rights-of-way’ wielded by rural and indigenous peopleand used for negotiating changes in laws andgovernment institutions, even for makingdemands regarding territory.

Nevertheless, most indigenous and rural commu-nities and peoples have no documents or recordsattesting to their rights over water sources.Recently, with recognition from the Communityof Origin Territories (which have been authorizedmainly in Bolivia’s Amazonian region) some offi-cial rights have been granted. However, these arevery limited, since rural folk are basically grantedwater supply for domestic use and in exceptionalcases for fish farming. Moreover, the possibilityalways remains open for these resources to bereassigned for other uses.

However, in many places, there are still refer-ences to so-called ‘historical rights’ – that is, thoserights granted to communities (formerly RoyalIndian Peoples) during the colonial period. Theserights were, in principle, exclusively rights of pos-session. But after independence they were con-firmed and expanded to include rights of owner-ship, granted to provide access to land.Indigenous and rural organizations demandthese rights even today:

“On the basis of these ownership rights,irrigation water users feel that they own thewater they use. This feeling is also reinforcedbecause the government, despite the consti-tutional provision giving it ‘original owner-ship’ of natural resources, at least regardingwater resources, has never enforced this inpractice.

(…) most irrigation water users’ organiza-tions can back their water use rights withdocumentation that is valid in any legal sys-tem; these rights are also clear in terms ofwater source(s), the zone of influence of theirrigation system (which, among otheraspects, is also a territorial phenomenon),social organization and their own manage-ment norms. It goes without saying that,when these are Quechua indigenous commu-nities and rural organizations, these normsare grounded in their own organizationalculture.”(Proposal to be considered in drafting theWater Resource Law, 21 August 1998)

The thorny road toformulating a new water law for BoliviaThe first legal reference since independence inBolivia dates back to 1879, when a Decree wasissued (8 September 1879) on Water Ownershipand Use, and raised to the status of a Law on 28November 1906. Several parts of this 1906 lawhave been repealed by later rulings, so althoughits provisions are still currently in effect(2) they arenot enforced, mainly due to negligence andbecause sectoral laws and regulations havesuperseded its norms with different ones.

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Table prepared by the author.

So, the laws in effect regarding water resources inBolivia, along with some general principles in thenational Constitution, provide a complex maze ofnorms regulating concrete sectors. For this rea-son, a bill has been under discussion for the last 30years, to fill the gaps left by the 1906 Law. But ithas not yet materialized, despite 32 draft versionsby the government and several alternative pro-posals by civil society organizations.

Such strong social forces opposed the new WaterLaw (September and October 2000) that the gov-ernment was forced to withdraw and shelve thedraft being scrutinized at the time by theNational Congress, thus ‘freezing’ discussion onthe topic. Agreements signed at the time boundthe government to set up a commission to pre-

pare an alternative draft, amending the normscontained in other laws and rulings that jeopard-ized smallholder, indigenous and settler rights towater. Moreover, until this commission finishedits work, “no other norm or concession regardingwater resources would be enacted”(3). Finally, aspart of these agreements, the 1906 WaterOwnership and Use Law was repealed.

Several years have passed since these agreementswere signed, but until now (end of 2003) no head-way has been made in complying with the abovepoints, or in formulating new legal norms forBolivia. This has meant that in the absence of anygeneral norms enabling new rights to be granted,specific laws, sectoral provisions and administra-tive contracts are being used, often ensuringoptimal conditions for investors that disregardsocial and even environmental considerations.

Nevertheless, despite the time that has gone byand the difficulties encountered, water resourcelegislation is still on the public agenda and is aworking priority for international co-operationagencies because of the implications for invest-ment in development projects (in irrigation anddomestic water supply). These agencies havebeen pressuring and funding the government tofinalise a new legal framework. But this has nothappened yet, partly because the issue is sopolemical and complex, and because sectoralinterests prefer to maintain the current situation(mining, industry, hydropower). In many cases,this gap in the legislation enables other legalprovisions to guarantee them major rights andfew responsibilities.

In a change of approach to that initially taken tomodify the legislation in Bolivia, and to makeprogress in formulating a new law, two consulta-tion processes began in 2000. One aimed to draftregulations for Law No. 2066 on Water Supply andSewerage Services (financed by the World Bankand facilitated by GTZ), and the other concernedIrrigation Norms for Bolivia (financed by the IDBand facilitated by the Commission for IntegratedWater Management in Bolivia and the NationalIrrigation Program). Both processes have hadextremely interesting results in proposing legalalternatives for a more social consensus-basedwater management, but they have run up againsta lack of political will(4) to put them into practice.

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YEAR

195319671967

19751975

1975

1977

1990

199319931994199419961996199719971997

1998

19992000

LEGAL INSTRUMENT

Law of Agrarian ReformNational ConstitutionRegulations on Water for Irrigation,Ministry Resolution No. 210/67Code of Civil Procedures Decree-Law on River, Lake and Maritime Navigation (DS 12684)Decree-Law on Wildlife, National Parks,Hunting and Fishing (DS 12301)Regulations on Water Sector InstitutionalOrganization and Concessions (DS 24716)Regulations on Fishing and Aquaculture (DS 22581)Law on Public ParticipationLaw on ExportsSIRESE LawLaw on ElectricityForestry LawINRA LawMining CodeRegulations on Protected Areas (DS 24781)Regulations on the Use of Public-Domain Property and Water Service Right of Way (DS 24716)Regulatory Standards for Water Use and Utilisation for Irrigation, Bi-Ministry Resolution 01/98Law on MunicipalitiesLaw Nº 2066 on Water Supply andSewerage Services

(Situation by end of 2003)

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During the process of constructing the IrrigationNorms, representatives from the watershedswhere work had been carried out prepared pro-posals for norms to create a Water Authority andto regulate the irrigation sector. These were pre-sented to government authorities and interna-tional agency officials. On the basis of this expe-rience, it was decided to begin systematizingproposals from other water-use sectors, and gen-erating dialogue mechanisms to attempt to buildconsensus for a Water Law based on an actualwater policy. Mainly with support from theMinistry of Agriculture, Livestock and RuralDevelopment, the Inter-Institutional WaterCouncil (CONIAG) was promoted and finally cre-ated through Supreme Decree Nº 26599 of 20April 2002. It aims to:

“Open up dialogue and consensus-buildingamong the government and economic andsocial organizations in order to better adaptthe legal, institutional and technical frame-work regarding water issues, to put in orderand regulate water resource management.”(Article 1)

To achieve this aim, the Council has three years,during which time it will:

• “Build consensus and propose actions forthe country’s water resource use, manage-ment and conservation.• Promote preparation and implementationof a consensus-based action plan for legaland institutional organization of the coun-try’s water resources.”

The Council comprises four ministries as well asrepresentatives of Bolivia’s municipalities, ofirrigator organizations, rural organizations,indigenous organizations, private enterpriseand academic and research institutions. Councilmembers receive no compensation for this work.For operational purposes, the Council has atechnical secretariat to facilitate, co-ordinateand systematize the whole process.

At the time of writing (2003), the Council hadmet a few times and was moving towardpreparing a water policy, on the basis of consul-tation and consensus-building with the country’ssocietal and economic organizations.

The issues

As part of the above process of legal and policyamendment, several questions have arisenregarding the issues discussed in this article,including the following:

What should be recognized?The latest proposals for the Water Law maintainthe idea that it is necessary to establish minimumindispensable requirements to obtain recogni-tion of water rights according to ‘uses and cus-toms’ prevailing in each region (Article 53, draftlaw No 32), indicating that these rights (in situ orderived) must be demonstrated and accreditedby presenting some suitable document (Article56-III). This poses a problem that even legalanthropology has been unable to resolve: thatis, it is practically impossible to define what thecontents of indigenous / rural ‘customary law’are. They include concepts, principles, practicesand customs which have tremendous diversity intheir formulation, application and reproduction.Consequently, the fundamental feature of thistype of normative repertoire is that it is dynamic,continually changing and therefore quite differentfrom the relatively stable positive-law provisions.

How to achieve this recognition, i.e. by whatprocedure?Most proposals are not clear about this issue.Official proposals have included preliminary pro-cedures similar to those pertaining to agrarianrights, whereas societal organizations haveemphasized that any procedure must be free ofcharge, swift and simple, without outlining anyfurther details.

Nevertheless, we could make the followingremarks about existing procedural proposals:

The idea of using regulation to define ‘uses andcustoms prevailing in each region’ implies, on theground, a sort of inventory or codification of‘valid’, ‘official’ and ‘legitimate’ uses and customsaccording to government criteria:

“this recognizes a right, but for indigenousand rural communities to exercise it, theymust accredit that they are entitled to enjoythat right. (…) such accreditation and demon-stration will most surely entail the presenta-

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tion of documents showing legal status, doc-uments dating back to previous times (…)referring to water sources used by communi-ties, anthropological and ethnological stud-ies by some cognizant body or some agency,or custom-made by the rights-holder to verifythat there are uses and customs”. (Orellana, 2000: 11)

At the same time, this entails a risk:

“if some community does not have the usesand customs that meet the standards set ineach region according to the Regulations,it may be assumed that they will not havecustomary-law rights to manage, use oraccess their water”. (Orellana, 2000)

So, users might not ‘qualify’ for their rights tothis vital resource to be recognized. This is thecase of several indigenous peoples and communi-ties in Chile, who do not have any recognition oftheir indigenous status and are therefore notentitled to water source concessions.

In the case of ‘community irrigation systems’,which have a different arrangement, official pro-posals would have them “demonstrate owner-ship of their land by any suitable means”. This isalmost a cruel joke, since Bolivia is only just nowundergoing the process of straightening outagrarian property records.Other issues, such as the need to have legal sta-tus, procedural costs or timeframes for example,have also been questioned.

What subject /object is to be recognized?In general, official proposals are so ambiguousthat they can be stretched to cover, under thesame rules, not only the rights of indigenous peo-ples and rural communities, but of anyone – indi-vidual or corporate entity – that has water useand utilisation rights “arising from traditional,customary uses and customs” (Article 64-II).

Accordingly, the indigenous / rural proposal(5)

stipulates that social, collective and beneficialuses of water resources are more important inrecognizing rights. These rights are connected toorganizations considered indigenous or rural,but could also cover urban and peri-urban sec-tors. So, the nature of the organization matters,but so does the way the resource is managed. Asa central argument, they say that ‘indigenous-ness’ should not be the main criterion for recog-nizing their water management rights andapproaches, but rather indigenous principles andvalues characterized by ‘collective’ interests.

What is the legal validity of this recognition?A number of official proposals speak of recogniz-ing ‘uses and customs’ by granting a Water Title,the legal value of which is not clear, and is severelyquestioned by stakeholder organizations.

“What kind of title of ownership do thesecustomary owners have? How can theydefend their rights from any conflict? Whereis that right registered, under what system?Are there two or more classes of legal gov-ernmental recognition of usage rights?Which is the over-riding right? The draft pro-posal explicitly states that the concessionmust be made in clear, stable terms, grantingrights to use, enjoy and dispose of theresource granted under the “Water Title”.From this, we conclude that any other formof access, aside from administrative conces-sion, creates legal insecurity for hypotheticalbeneficiaries.” (Orellana, 2000: 11)

That is, although the law recognizes ‘uses andcustoms’ of different indigenous peoples andrural communities, the procedure to follow, thelegal security to be obtained, and the contents ofthose rights are not clear enough.

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Indigenous farmers, Bolivia – © R. Bustamante

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What are the consequences of this recognition, the desired and undesired effects?All official proposals state that rights based on‘uses and customs‘ will be included in the gen-eral concession system, establishing only a fewexceptions such as the non-payment of registra-tion fees. It was only with the enactment of LawNo. 2066 (Provision of Water Supply andSewerage Services) that a different legalarrangement was established for rural communi-ties and indigenous peoples (Registration)although it is limited for the time being todomestic use and consumption.

Although this form of recognition has not yetcome into effect because there are no regula-tions to establish the procedures to follow, apolemic has arisen regarding its consequences.For example, rights will be registered only “interms of actual use of water resources”, whichimplies that, with the same way of thinking asduring colonial times, water that is declared ‘sur-plus’ could be granted to third parties. This wayof thinking would also establish all concessionsby unit of volume per unit of time, which hasbeen seriously questioned by societal organiza-tions, since this ignores the traditional ways ofallocating rights. Moreover, there is also theissue of revoking rights granted. The causes forrevocation have not yet been clearly estab-lished, since the Law indicates only a limit onthe ‘lifetime’ of the service.

Therefore, counter-proposals by societal organi-zations clearly state that, although “registrationof community water rights have the same legalvalue as any other type of usage authorisation”and priority status over any other sort of right,they also include special conditions for puttingrights into practice, such as over-riding otherrights, multi-use, non-transferability, protectionagainst seizure, perpetuity and exoneration frompayment of fees.

In summary, the crux of the matter is still: How toachieve recognition of local, indigenous andrural rights without thereby curtailing them?And how to make headway in more integrated,equitable, sustainable management in the cur-rent context of local, indigenous and rural peo-ple’s rights?

The new context and thechallenges it posesDuring the last few years, dialogue sessions havebeen organized on several occasions, regardingnatural resource management issues in generalamong indigenous and rural organizations andthe Government, although almost always as theresult of a social conflict. These discussions havemade significant progress in recognition ofindigenous and rural peoples’ and communities’rights – however, not precisely through consen-sus-building, but due to the pressure of socialaction.

The social conflicts of April (the Water War) andSeptember 2000 in Bolivia have generated a‘time-out’ in the process of formulating a newWater Law, in order to think through the propos-als and relate them to a Water Policy. Conflictshave also placed this discussion in a context thatis essentially different, in which it is important tohave opportunities for dialogue and consensus-building, not only with social organizations, buteven within the government itself. Even interna-tional financial institutions such as the Inter-American Development Bank and the World Banknow feel that it is important to take societaldemands into account more systematically andresponsibly. Along these lines, the process offormulating the Water Policy, facilitated by theCONIAG, has been planned to involve water usesectors more effectively. However, although thisis a step forward, making decisions in bodies suchas the CONIAG also poses questions regardinghow to resolve issues of representation, repre-sentativeness and legitimacy – in sum, the mostdemocratic ways to involve society in policy- andlaw-making.

Furthermore, formulating new laws and policiesis only the beginning of a lengthy process. As wehave seen, although many issues have normsnow, even very precise ones, the problem ofeffectiveness lies in how they are implemented.Procedures established so far for other sectorsare complex (overly technical), costly and do notreally guarantee recognition of rights, since theyalways leave loopholes through which the gov-ernment can limit and even infringe on theserights to favour economic interests. Often, provi-sions favouring societal sectors are evaded or

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ignored, especially when they involve invest-ments by economically powerful sectors. AsMarinissen puts it, “there is a relationshipbetween economic interests and the poverty ofsocial norms” (Marinissen, 1998). Regarding thetopic of this paper, this has happened, for exam-ple, in the several attempts to approve a norm tomake it possible to export raw water from theSud Lípez region in Potosí to the neighbouringRepublic of Chile, and more generally in the sign-ing of free-trade agreements (such as the FTAA)that treat water as a tradable commodity.

Final reflections What is going on? This was the question withwhich we began this paper. It is difficult to give asatisfying answer yet. Some analysts haveattempted an explanation:

“(…) The strikes in 2000 and 2003 showunequivocally that political stability, legiti-macy and governmental order cannot be con-structed without taking into account therecognition of the indigenous cultural identi-ties of the majorities, their power structureand their eagerness to govern themselves.Indians are now the core of social struggles, ofdiscourse about change and of the forces forthis country’s moral and intellectual renewal.Recurring indigenous uprisings, such as thepresent one, have rendered visible the failureof society and government to see eye to eye.What is new is that, in addition to the radicalresistance of insurgent indigenous people andthe real capacity to take de facto political con-trol of sizeable territories, there is an indige-nous intellectual elite with a sufficiently pene-trating discourse that they can makeindigenous demands into a full-blown nationalindigenous advocacy movement. And experi-ence with de-colonizing nationalism (asopposed to large-power nationalism), onceunleashed, is that it is irreversible and can beresolved only by creating multi-national statesor setting up independent states.”(Alvaro García-Linera, 2003 in El JugueteRabioso No. 89 and PULSO No.218 respectively).

More modestly, we feel that, to achieve inte-grated, sustainable, equitable development ofindigenous peoples and rural communities, thesemust be granted a number of rights:

• to be able to co-exist, according to theirown culture, traditions and customs (with theimplications that this has for education, law,health, etc.)• to have territory that will meet their currentand future needs, which also means that theymust have the right to utilize and / or takepart in the benefits of utilizing naturalresources in their territory; and• to decide autonomously regarding their owndevelopment priorities and alternatives(6).

It is essential to guarantee indigenous peoples’participation and a certain degree of controlwithin power structures (national, sub-nationaland local governments) and to ensure there ispolitical will (amongst governmental officials,leaders and the public) to make these rights areality.

Recognition of these rights for indigenous peo-ples and rural communities, moving towardsgreater autonomy, ultimately poses the greatestchallenge of all: deciding what to do with pluri- /multi-national issues in our countries. How toaddress these issues in order to make them thefoundation of development? This requires us toseek out a difficult series of balances, between:

• the right to equality, and the right to differ-ence;•autonomous systems, and the State per se.

Some progress has been made in this direction.For example, it is clear that indigenous peoples’demands for autonomy do not entail seceding,setting up independent States or anything of thatnature (although different positions arose duringthe latest conflicts in Bolivia, that were more‘regional’ than ‘ethnic’). Rather, their proposal ismainly to build pluri-national states, that is:

“Not to create ‘islands’ of segregation, but torespect – and even encourage – different cul-tural identities, to create or enhance otherelements of national or governmental cohe-siveness, with tangible correlations in terms

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of equity. The State should willingly allowadjustments in the persistent asymmetriesbuilt up over our common, indissoluble his-tory, but – in order to move toward a desir-able future for the many – it must reduce, orcompletely eliminate that shameful correla-tion between being indigenous and peasant(even worse if we include the variable of“women”) and being poor.” (Albo et al.,1995)

This is a way of building democracy, by co-ordi-nating different ethnic and social identities.

“Fighting for our future as peoples, we main-tain our traditional lifestyles, which underpinour survival as a people. And we must beselective, introducing into our lifestyle whatwill enrich us and confronting that whichdestroys us.Autonomy of territories makes it possible tocarry out development processes based onconcepts, traditions and proposals of ourown. We aim to promote and reinforce sus-tainable management of renewable naturalresources, without excluding economicgrowth.”(Sergio Javivi, Member of the CIDOB, 1997)

This thorny ‘balancing act’ poses a challenge: “(…)for everyone, for the world and its norms, forcountries and the way they see themselves, andfor stakeholders and their discourse, which mustbe inclusive” (Urioste, 2000:9). It is important,above all, to take into account that these issuescan be understood only in “(…) a completelydemocratic setting, leading to inter-culturaldialogue, to avoid positions that get tough andbackslide into fundamentalism” (Assies, 2000: 9).This would take us toward transforming the Stateby ‘making it more sincere’, with a pluri- /multi-national reality that is increasingly difficult toignore. In Garcia-Linera’s words: “the idea is toachieve modernity as what we actually are, not bypretending to be what we will never be, and cannever be”. (Garcia-Linera, 2003, in PULSO No. 218).

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Women washing clothes, Bolivia – © R. Bustamante

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ENDNOTES (1) Bolivia’s ecological, social, cultural, and ethnic diversity,expressed in local water management forms, makes it verydifficult to generalize about these arrangements. However,research on this topic has helped us understand it better.

(2) Recently, some sectors have attempted to ‘retrieve’norms from the old 1906 Law, e.g. to justify rights tounderground water or to argue that municipalities have thecognisant jurisdiction to grant rights.

(3) Points of Consensus among government representativesand rural and indigenous organizations on 4 October 2000,as an outcome of the so-called “Water War”.

(4) The same had happened before, with the RegulatoryStandards for Water Use and Utilisation for Irrigation, whichwere to be drafted pursuant to the government’scommitment in order to receive an IDB loan to implementthe National Irrigation Program. The initial condition was toenact a new Water Law, but after several abortive effortsthis was reduced to simply regulating the irrigation sector.Work for at least two years finally got these RegulatoryStandards passed, which are among the first precedents forrecognition of entitlements due to use and custom.However, although the standards established very shortdeadlines to put rights in order, institutional arrangementsand procedures were not clear. This called for specialregulations, which were discussed for about two more yearsand then discarded.

(5) Because of the experiences in how this recognitionmaterializes in agrarian and forestry issues. For example, theINRA Law establishes the need to identify spatial needs,based on qualitative and quantitative criteria regarding theapplicant people’s lifestyle and production system, prior togranting them title to water rights.

(6) Convention 169 states: “Interested peoples should have the right to set their ownpriorities regarding the development process, insofar as itaffects their lives, beliefs, institutions and spiritual well-beingand the land that they occupy or use in any way, and to controlinsofar as possible their own economic, social and culturaldevelopment. These peoples must also take part in formulating,enforcing and evaluating national and regional developmentplans and programmes that could affect them directly.Improving living and working conditions and health andeducation for interested peoples, with their participationand co-operation, should be a priority in overall economicdevelopment plans in regions where they live. Specialdevelopment projects for these regions must also beprepared so as to promote such improvement.Governments must ensure that, whenever possible, studiesbe conducted, in co-operation with interested peoples, inorder to assess the social, spiritual, cultural andenvironmental impact that development activities couldhave on these peoples. The findings of such studies must beconsidered as fundamental criteria for implementing suchactivities.” (Article 7)

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Assies Willem, 2000, Unas reflexiones sobre lascontribuciones al Foro. Paper presented at the First Forumon Legal Pluralism and Constitutional Recognition ofIndigenous Rights. http://geocities.com/alertanet

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Assies Willem, 2001, Jurisdicción y organización Indígena:una exploración. Paper presented at the Second Forum onProposals for Constitutional Development andJurisprudence: Indigenous Law and Human Rights.http://geocities.com/alertanet

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Boelens Rutgerd and Dávila Gloria, eds., 1998, Searching forEquity. Conceptions of justice and equity in peasantirrigation. Van Gorcum, Assen.

Boelens Rutgerd, Roth Dik and Zwarteveen Margreet,2002Legal complexity and irrigation water control: Analysis,recognition and beyond. Paper for the 13th InternationalCongress on Folk Law and Legal Pluralism, Chiang Mai,Thailand.

Bustamante Rocío, 2002, Documento WALIR Bolivia: Estudiolegislativo. Wageningen University – CEPAL/ECLAC.

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Bustamante Rocío, 1998, Estudio comparativo de lalegislación de agua en Bolivia y Ecuador con referencia aPerú y Chile. paper for the Inter-Institutional Forum onIrrigation – Ecuador.

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Bustamante Rocío, 2000, Nuestras Aguas, Nuestra Vida”,indigenous and rural rights in proposals for the Water Lawin Bolivia. (unpublished)

Bustamante Rocío and Gutiérrez Z, 1999, Usos y costumbresen la Gestion de Riego: Caos u orden en la gestion de Aguapara riego. Chapter 7 in Agua y Municipios, Ed. PaulHoogendam, PLURAL Editores, Cochabamba, Bolivia.

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Fundación Solon, 1998, El agua es la Vida-Análisis Critico delProyecto de Ley de Aguas. TUNUPA Boletín 1, SolonFoundation, Bolivia.

Gelles Paul H, 2000, Water and Power in Highland Peru: TheCultural Politics of Irrigation and Development. Rutgers University Press, New Brunswick, New Jersey.

Gelles Paul H, 2003, Indigenous peoples, cultural identityand water rights in the Andean nations. WALIR:CEPAL/ECLAC /Wageningen University /University ofCalifornia, Wageningen and Riverside, California.

Gentes Ingo, 2002, Estudio de la Legislación Oficial Chilena ydel Derecho Indígena a los Recursos Hídricos. WALIR:CEPAL/ECLAC and Wageningen University, Santiago, Chile.

Gentes Ingo, 2003, Estudio sobre marcos normativosindígenas y consuetudinarios referente a la gestión del aguaen Chile. WALIR: CEPAL/ECLAC and Wageningen University,Santiago, Chile.

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Izko Xavier, Iturralde Diego et al., 1993, Derecho, PueblosIndígenas y Reforma del Estado. Abya Yala Library Collection 2, Ed. Abya Yala, Quito, Ecuador.

Javivi Sergio, 1997, Presentación de la CIDOB in DerechosHumanos, Derechos de los Pueblos Indígenas, InternationalSeminar, 4-7 March 1996, Cochabamba, Bolivia,International Jurists’ Commission, France.

Lillo-Vera Rodrigo, 2000, Conflicto, estado y PuebloMapuche: La interculturalidad como paradigma delDerecho. Paper presented at the International Congress onJuridical Anthropology and Legal Pluralism. Arica,Indigenous Institute Foundation.

Marinissen Judith, 1998, Legislación Boliviana y PueblosIndígenas. Inventory and Analysis in the perspective ofindigenous demands, 2nd Edition SNV – CEJIS, Santa Cruz, Bolivia.

Mesa Técnica del Agua, 2002, Plataforma para una justa yequitativa Ley del Recurso Agua. Document fromCochabamba, prepared by the Inter-Institutional TechnicalCommission on Water Issues. (mimeographed).

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Orellana Rene, 2000, Agua que no has de beber, no lavendas… dejala correr. Privatisation and Commoditisation ofwater rights under the proposed law on water resources,Separata, special issue of Articulo Primero magazine, Vol. 3,No 5, CEJIS, Santa Cruz, Bolivia.

Palacios Paulina, 2002, Estudio nacional de la LegislaciónOficial y los Marcos Normativos Consuetudinarios referentea la Gestón Indígena de los Recursos Hídricos. WALIR:CEPAL/ECLAC and Wageningen University, Quito.

Palacios Paulina, 2003, Estudio sobre marcos normativos indígenasy consuetudinarios en la gestión del agua en el Ecuador.WALIR: CEPAL/ECLAC and Wageningen University, Quito.

PEIRAV, 1998, La guerra del agua; conflicto y negociaciónentre organizaciones campesinas y SEMAPA en el Valle deCochabamba, 1977-1998. (Final Report and Attachments),Cochabamba: PEIRAV, UMSS-UAW. (mimeographed).

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Rivera C Silvia, 1997, La noción de ‘derecho’ o las paradojas dela modernidad postcolonial: indígenas y mujeres en Bolivia.Derechos Humanos, Derechos de los Pueblos Indígenas,International Seminar, 4-7 March 1996, Cochabamba,Bolivia, International Jurists’ Commission, France.

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Yrigoyen-Fajardo Raquel, 2000, Perú, Constitución pluralista,Judicatura monista: Un balance de la pos reforma. Pluri-cultural and Multi-ethnic: Evaluating the implications forState and Society in Mesoamérica and the Andes. Institute ofLatin American Studies (ILAS), University of London, London. http://geocities.com/alertanet.

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129Local irrigation practices in indigenous communities, Ecuador – © R. Boelens

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In Peru, state law, public policy and the government bureaucracyresponsible for managing water either deny or only barely recognize thevalidity of indigenous and peasant water rights and usages.Transforming this situation will call for, among other tasks, a dialoguebetween the government and indigenous and peasant organizations,and subsequent legal amendments.

To contribute to this dialogue, I examine some central concepts forrevisiting relations between the official law and indigenous and peasantrights to water. My purpose is to clarify the meaning of such categoriesas ‘indigenous peoples’, ‘Indians’, ‘rural communities’, ‘peasants’,‘ethnicity’, ‘development’ and ‘legal plurality’, in order to foster a debatethat will help to transform the current legal framework. In addition tothese issues, I present an overview of current Peruvian water legislationto illustrate both its particular orientations and constraints, and thepotential for supporting indigenous and peasant demands.

Armando Guevara-Gil, M.A. Cultural Anthropology (University of Wisconsin-Madison, 1991), is aLaw Professor at Pontificia Universidad Católica del Perú, Lima. He is also co-ordinator for Peru of theWater Law and Indigenous Rights Project – WALIR Peru, coordinated by Wageningen University andthe United Nations Economic Commission for Latin America and the Caribbean (ECLAC).

[email protected]

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In Peru, as many Andean countries, failure torecognize the validity of indigenous and peasantwater rights and uses is due to the pretensions ofthe modern nation-state and the market eco-nomy, which aspire to create a political and eco-nomic arena with universal ‘rules of play’ that aredivorced from the cultural, social and ecologicaldiversity native to the Andes. Transforming sucha situation will call for a major political move-ment to reclaim indigenous and small-farmerrights to control water according to their ownapproaches. It will also require a theoreticalfoundation to underpin demands for change,dialogue with the State and subsequent transform-ations in governmental legislation (Assies et al.,1999; Boelens and Dávila, 1998; Gelles, 2000;Guevara et al., 2002; Urteaga and Guevara, 2002).

To assist in this task, I will examine below somecentral concepts to revisit relations between offi-cial law and indigenous / smallholder waterrights. Beyond technical issues regarding the law-making process itself, it is crucial to reflect uponthe foundations of this problem. Therefore, wemust question the meaning of such categories asindigenous peoples, Indians, rural communities,peasants, ethnicity, development and legal plu-rality. Only by clarifying them can we propose aproductive debate leading to transformation ofthe current legal framework. In addition toaddressing these issues, this article concludeswith an overview of current constitutional andinternational norms that illustrate particularorientations and constraints, as well as potentialfor supporting indigenous and peasant demands.

‘Indigenous peoples’ and ‘Indians’

Since the early 20th century, scholars have useddifferent viewpoints to analyse Andean reality.Whereas the term ‘peasant’ (campesino) is asocio-economic category often used by anthro-pology and rural sociology of Marxist inspiration,the term ‘indigenous’ is an ethnic, cultural cate-gory coined by indigenous and culturally-inclinedanthropology. This fundamental difference inthe way of categorizing the anthropological

subject has inspired diverging public policies andagendas. At one extreme, we find the moderniz-ers, liberals or progressives, who intend tochange the agrarian reality at any cost, includingcultural costs. At the other, radical Indianists andadvocates of recovering ‘Andean technologies’favour a romantic vision that places Andeanpeople beyond history and very close to autarkicutopia (Golte, 2000; Pajuelo, 2000; Mayer, 1993).The conceptual range of viewpoints has generatedunending arguments about the specific features of‘Andean life’, the rural-urban relationship, ruraleconomics, the current force of Andean culture,and the propriety of the terms ‘indigenous’ and‘peasant’ or ‘small farmer’.

In the political domain, the military reform gov-ernment (1968-1980) tried to eradicate the word‘Indian’ from official national vocabulary,because of its tremendous racist, exclusive,semantic baggage, replacing it by ‘peasant’(Gelles, 2000)(2). However, during the past decadethis term has been re-appropriated and retrievedby the indigenous themselves. This trend is clear-est in the Amazon, where the word ‘native’ended up sounding more patronizing than‘indigenous’, but this is also evolving in the polit-ical language of Andean communities. Moreover,since the administration of President AlejandroToledo (2001-2006) has embraced the indigenouscause (e.g. Declaration of Machu Picchu, creationof CONAPA [National Commission of Andean,Amazonian and Afro-Peruvian Peoples]), it is tobe expected that the Andean population willalso process their demands by affirming theirindigenous nature.

The reasons for revitalizing this concept are mul-tiple. The first is the ethnic revival, experienced asa backlash against neoliberal globalisation (Falk,1998; Favre, 1998). The second is the re-valuing ofethnic differences after decades of assimilationand integration policies that have caused onlyfrustration and dismay. The third is political advo-cacy of indigenous identity to get governmentfunding (Appadurai, 1997) and support fromnational and international development agen-cies (e.g. to qualify for poverty relief programs).The fourth is the assertion of an ‘exotic other-ness’ that would make its mark in national andinternational images of Peru, to appeal totourists and their money. Finally, one very impor-

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tant reason is the possibility of grounding localdiscourse and demands in the headway made ininternational indigenous law and domestic law.International forums such as the ILO, the UN, andthe OAS are lending their ear, albeit selectivelyand with a certain distance, to indigenousdemands, and beginning to enact them in inter-national treaties, conventions or declarationsthat then become incorporated into nationallaws. When they achieve normative status, theseprovisions may be wielded by the indigenous assupport for their rights vis-à-vis the State andthird parties.

To advocate recognition of indigenous and small-farmer rights to water, it will be necessary toanalyse both the anthropology implicit in the officialoutlook and the different theoretical currents ofAndean anthropology that have addressed‘indigenous’ affairs.

The legal definition of ‘indigenous peoples’ and‘indigenous’ in effect in Peru since 1995, whenthe International Labour Organization (ILO)Convention 169 On Indigenous and TribalPeoples in Independent Countries was approvedand ratified, states that indigenous peoples arethose who descend from population groups wholived in the country at the time of the Conquestor the establishment of current borders, and whohave preserved all or part of their own social,economic, cultural and political institutions.Additionally, a fundamental criterion to deter-mine indigenous affiliation, and the domain forapplication of the Convention, is awareness ofethnic identity, i.e. self-recognition.

As for theoretical currents, there are two majorschools of thought on indigenous identity (Field,1994; see Degregori, 2000). The first is the schoolof ‘cultural survival’, which emphasizes the pri-mary or essential traits of the groups studied.These attributes are spatially and culturally dis-tributed, discretely and distinctively compared toother groups. Language, political organization,ritual, religion or ways of adapting to the envi-ronment are markers that set and typify thegroup’s identity and become essential elementsto define ‘indigenous’ lifestyles. From this stand-point, the degree of ‘Indian-ness’ is measured bythe nearness or distance from the identifiedparameters, and the group’s survival or assimila-

tion is forecast as a function of the feasibility ofcontinuing to practice the cultural patterns thatare considered essential. This position flows fromstructural-functionalist theory favouring thestudy of internal homogeneity and equilibrium,while providing a very solid ideological and polit-ical foundation for the indigenous movementand national and international activists engagedin promoting indigenous peoples’ rights.

The second is the school of ‘resistance’. Here it ispostulated that indigenous identity is an out-growth of historical evolution and various cul-tural, social and political encounters experiencedby the indigenous peoples over history (pre-colo-nial, colonial, post-independence). The currentsituation and identity is, accordingly, the out-come of the struggles against territorial depriva-tion, cultural assimilation, social marginalisation,ethnic degradation and impoverishment of abo-riginal societies affected by external or internalcolonialism. In this context, indigenous identity isfluid, relational and flexible, because it con-denses as a function of the constant re-defini-tions and re-inventions that peoples must maketo resist and adapt to external pressures.

This school emphasizes that pressure and influ-ence by outside forces may be of such magnitudethat contemporary indigenous societies are notnecessarily much like their predecessors, becausethey have incorporated different socio-culturalforms over time, which have transformed themcompletely (e.g. the Catholic religion, localcabildo governing boards, literacy, law). Thus,the identity of the indigenous peoples is notdefined by the presence of immutable essencesor historical links to a primordial past, but by thedynamics of resistance and adaptation that theyhave developed under a position of ethnic subor-dination and social exclusion.

Within this perspective, ‘Indians’ are, in fact, acolonial and governmental creation. Withoutboth referents, there would be no ‘Indians’ orindigenous or peasant communities. Indians andcommunities are not the vestiges of isolatednative societies, suspended in time, but theresult of historical processes of resistance toexclusion, subordination and incorporation into agreater political economy (colonial, national,international). The autochtonous peoples would

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not have been ‘indigenous’ and would have hadtheir own historical discourse, were it not for cen-turies of struggles against the dominant invasivesociety.

As already mentioned, another way to approachrural Andean societies comes from materialisticanthropology. This trend of analysis is not ethnic-cultural but socio-economic. The advantage ofthis approach is that it emphasizes the relationalnature of categories such as ‘peasant’ and ‘ruralcommunity’. The disadvantage is that, in mostcases, the specific features of ethnic and culturalphenomena tend to be lost in materialistic, eco-nomic and social categories.

In any event, the theoretical and political prob-lem lies in determining the best way to approachthis radical other-ness (we/them) that has markedthe history of Peru and the Andean countries, inorder to design public policies and institutionsthat are truly inclusive and equitable.

Identity, ethnicity and multi-cultural policies(3)

Cultural groups and societies invent differentways to symbolize reality and distinguish them-selves from ‘others’. By so doing, they assemble anethnic identity characterized by self-acceptanceor self-recognition and membership of certaingroups. In this dynamic, identities do not expressprimary bonds (‘the Andean essence’) butemerge from ethno-political processes of inter-group differentiation. The dichotomy betweenown and other is based on ethnic markers formu-lated to play the game of identities. These mark-ers may be customs, occupation, forms of politi-cal organization, language, geographical originor so-called ‘racial’ differences among groups.

The game of local identities and the historical andcultural assembly of Andean ethnicity (ethnogen-esis) are examined, among others, by Abercrombie(1991) and Gelles (2000). Abercrombie emphasizesthe role of colonial and neocolonial historicalexperience in giving form to Andean identities:“In the Andean case, centuries of colonial domi-

nation (and resistance to it) have produced manyhundreds of small, community-sized ‘ethnicgroups,’ centreed on ‘county seats,’ i.e. towns intowhich pre-Columbian populations were forced tosettle. Within these rural towns, ‘Indians’ (as theyare called, deceptively, by city folks) generallydefine themselves as members of a local group,co-terminous with town-territory, and beyond it,as citizens of the province and departmentdefined by the nation-state to which they alsobelong” (1991: 95-96).

Based on this observation, Gelles proposes an‘emic’ concept of ethnicity emerging from thepropitiatory ritual practices that a social group(people, community) performs to link up withtheir sacred universe of guardian mountains andwaters. The important element of his proposal isthat the play of ethnic identities is not reduced toa differential use of such categories as ‘Indian’,‘cholo’, ‘mestizo /misti’ or ‘criollo’ but is enrichedby the countless ‘pacts’ between populationgroups and their local deities (e.g. apus, cabildos).In turn, Andean peoples and communities as awhole are differentiated from the rest of societybecause they share this belief system: “Because ofthe ways that Andean religion and ritual practiceatomise power among thousands of mountains,each of which has a subject population depend-ent on it (and a patron saint) for fertility and pros-perity, there is an almost endless differentiationof ethnic identity among social groups in theAndes. [It] is the shared conviction that moun-tains and the earth possess spiritual propertieswhich, among other things (e.g. language, dress,diet), differentiate indigenous peoples frommistis and mainstream criollo society, a societythat denies the validity of these Andean culturalorientations” (Gelles, 2000: 44-55).

Both authors emphasize that Andean identitiesare particular and local, which makes the conceptof ‘indigenous’ questionable, to refer to such dif-ferentiated, fragmented local identities. Is there‘Andean’ or ‘indigenous’ ethnic identity, or arethese processes of ‘micro-ethnogenesis’ emptyingthe concept of ‘ethnicity’ of all contents? What isthe impact of local ethnic focus and loyalty to localidentities on the community’s self-recognition as‘indigenous’ and on the Peruvian indigenousmovement? If we assume that self-recognition isa fundamental requirement in order to qualify as

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an indigenous person then it is hard to acceptthat because of the theoretical need to classifyhuman groups, we attribute that status to peoplewho do not assume it explicitly. Despite thesetheoretical and political issues with the categoryof ‘indigenous’, Gelles does feel that it should beused as a broad label for the diversity that hehimself documents: “The fact is that millions ofQuechua-, Aymara-, and Spanish-speakingindigenous peoples living in the highlands ofEcuador, Peru, and Bolivia, while participating indiverse social and cultural worlds, also have similarbeliefs and ritual practices that are distinctlyAndean and are tied to fundamental notions ofcommunity and ethnic identity. These beliefs andpractices, forged in a colonial context and todayignored or denigrated by dominant culturaldiscourses and policy-making in the Andeannations, are fundamental components of localsystems of agricultural and pastoral production”(2000: 11-12).

Following Gelles, ethnicity in the Andes goesbeyond the Indian-white dichotomy and isfleshed out by the multiplicity of local indige-nous identities. Both extremes are sources of con-flict (i.e. inter-community conflicts). In general,the common denominator in ethnic conflicts isthat accentuating identities and differenceshardens boundaries between groups, bolstersinternal solidarity vis-à-vis the ‘other’ and deniesthe possibilities for intercultural understanding.This produces a spiral of symbolic and physicalviolence that may reach extremes, from discrimi-nation and prejudice to persecution and ‘ethniccleansing’. Thus, it is fundamental to imagineand construct sensitive, sensible policies on diver-sity, reinforcing cultural communities’ autonomyand proposing ‘more sophisticated forms ofpolitical co-existence among cultures, formsrespecting pluralism and the identity of universesin conflict’(4).

In general, ethnic conflict does not entail a sim-ple dispute over the imposition of a system of col-lective representations, for the supremacy of aprimary identity or the affirmation of one world-view over another. The struggle also involvescontrol over or creation of an alternative politicalopening (e.g. state, autonomous region) orreconfiguration of economic and social powerrelations among the ethnic groups involved. As

anthropologist John Comaroff (1992: 54) describesit, ethnicity originates in the asymmetrical incor-poration of structurally differentiated groupsinto a given political economy.

In the contemporary world, the structuralasymmetries of ethnicity are expressed in multi-cultural scenarios with diverse roots and direc-tions. They may be the outgrowth of colonialexperience or of a subsequent process of internalcolonialism (Stavenhagen, 1990). They also comefrom modernizing, liberal or socialist nationalprojects, that collide with the resistance, vitalityand heterogeneity of the different culturalgroups that they meant to homogenize (e.g.Latin American countries, former Soviet block). Inthis situation, Mexico has been the first LatinAmerican country to acknowledge the limits ofintegration and postulate a policy of ‘ethnicmanagement’ (Favre, 1998: 142). Other causes ofmulti-culturality are trans-national migratoryflows, which have completely changed the ethnicand cultural make-up of vast regions of theplanet, driven by globalisation (e.g. north-Atlantic countries) (Kottak, 1997; Kymlicka, 1995;Giusti, 1999).

Under the label of multi-culturalism, there arevarious political currents, not all truly counter-hegemonic, but rather paving the way to politi-cal subordination of indigenous peoples. Thatwas the case of the ‘Republics of Indians andSpaniards’ in the Andes, where cultural differ-ences were used to set up a hierarchical, exclud-ing, segregated colonial order. In the case ofstructural State reform in Latin America andAfrica, multi-culturalism acquires a distinctiveconnotation. The aim is for the new neoliberalState to stop providing the public goods andservices that the development-oriented or inter-vening State attempted to give the public, andgenerate geographical and political fragments,to guarantee “indirect control at the lowest pos-sible cost over population groups and territoriesthat it can no longer directly administer” (Favre,1998: 146). Favre distinguishes between integra-tion of the indigenous under populistic govern-ments and the ideology of ‘Indianism’ promotedby neoliberalism, observing that the margins ofautonomy achieved do not transform the natureof the State, but just relieve it of obligations. Forexample, “the people bequeathed these territo-

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ries must make sure that law and order reignthere, and learn to live in their reservations withautonomy, that is, without any public services,which have run dry” (ibid.).

Along with these neoliberal reforms, multi-cul-turalism acquires hegemonic properties, whenofficial discourse on globalisation makes struc-tural differences and inequitable internationalrelations the subject of a cultural other-nessmeant to be respected and acclaimed (Degregori,2000: 58-59; Golte, 2000: 222). However, theinteresting thing is that multi-culturalism canalso be associated with the emergence ofcounter-hegemonic discourse, since, as Giustistresses, it is driven by the “process of de-legit-imizing the western model of civilization” byrejecting ”the supposed moral, political or epis-temological universalism of the liberal para-digm” (1999: 222).

The problem for modern States, and Peru claimsto be one of them, is to balance the principle ofequality with that of respect for difference in aplural, open, democratic setting (Kymlicka, 1995;Kukathas, 1997). The old chimera of the nationalproject must be left aside, to transform the ‘prob-lem’ of ethnic and cultural multiplicity into thepivot of a new way of organizing the State,upgrading from the ‘nation-state’ to the ‘multi-national’ or ‘pluri-ethnic’ State. This does notentail creating a sealed compartment for eachculture, ethnic group or rural community identi-fied by anthropological analysis. Rather, the ideais to affirm the identity of each, through intercul-tural dialogue. The fecund hybridisation pro-duced by inter-ethnic contacts and by overcom-ing one’s ingrown conceptual structures, canreveal ‘our own solutions to new problems’ asthe key to unleashing the emancipating poten-tial of multi-culturalism (Golte 2000: 223;Degregori 2000: 59-61). This task will call forrefining the interpretative tools that will enableus to ”meld horizons of meaning”(5).

In the case of indigenous and peasant waterrights, it will be necessary for the dialogue withthe State to be informed by the political philoso-phy and theory of multi-cultural law. This willmake it possible to suitably underpin proposedlaws for recognition of customary practices andindigenous law. It will be important to go beyond

present-day ‘common sense’ about multi-cultur-alism and ethnicity, to enrich the discussionabout the changes we need to make in Statestructure, in the nature of inter-ethnic relationsand in relations between State and communityor State and indigenous peoples. This will meandevising counter-hegemonic forms of multi-cul-turalism and inter-culturality that will be able tosoften the conceptual and institutional rigidity ofgovernmental law.

Rural communities in PeruIn Peru, rural communities and Peruvian anthro-pology maintain an “(almost) eternal love affair”(Urrutia, 1992). This leads to over-concentrationon topics involving ‘peasants’ and their ‘commu-nities’ (Monge, 1993). It is imperative to avoidreducing rural society to the ‘peasant’ community,to recover an overview of all stakeholders andprocesses in the countryside, to pose – for instance– the appropriate unit of analysis to study Andeanirrigation (for a discussion, see Guevara et al.,2002; Urteaga and Guevara, 2002). The core issueis to determine what we mean by ‘peasant com-munity’. Some authors question the existence ofthe ‘magma’ described in scholarly papers, and thelack of ongoing, consistent reflection about thistopic. Therefore, we do not have an adequatetypology of communities and, paraphrasing thetitle of a famous Peruvian novel, Urrutia concludesthat “we are actually not talking about ‘one butmany communities” (1992: 11)(6).

Mossbrucker is also skeptical, saying that “due tothe great variety of functions and contents thatthe community assumes in different peoples, aclear, single definition of its contents is not cur-rently possible, nor would it make much sense”(1990: 100). Even so, he proposes a series ofabstractions to orient specific research:

• “It is an administrator of resources.• It is an association of families who have thegoal of utilizing resources placed under theinstitution’s management.• At present, when it exists, it is generally oneof the conditions for the rural people tobelong, in order to be able to participate in

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the market.• It is an instrument for rational problem-solving for members. Explanations that seeirrational or purely spiritual motivations inthe community, such as clinging to traditions,keeping the Andean culture alive, and so onare not explanations; at least, not scientificones” (Mossbrucker, 1990: 101).

Golte (1992) presents a very interesting sugges-tion of approaching the problem from the stand-point of political practice and rural economicsversus the colonial and post-independence State.He, like Arguedas and Fuenzalida, maintains that‘community’ is a juridical concept originating incolonial legislation to handle ‘ordinary Indians’.This social aggregate had a differentiated politi-cal organization and acquired customary rightsto the land. This concept was picked up by early20th century indigenous advocates in order to‘protect the indigenous race’ and, more impor-tantly, was selectively adopted by the rural peo-ple themselves, eager to qualify for exceptionsand the State’s protection. “The fact that, overthe decades, many rural peoples found multiple,diverse reasons to seek coverage by this legisla-tion, including adaptation of certain norms forpolitical and economic organization, does notmean, however, that the social, political and eco-nomic organization of the peoples actually hadthe same basic features. This problem is central,because social sciences in general have not chal-lenged this concept: on the contrary, they havedescribed a huge variety of peoples as if theywere really variants of a basic organization thatfits them all” (Golte, 1992: 17). Golte’s proposalhelps us understand that subordinated socialgroups use State law to serve their own interests,beyond official intentions.

Accordingly, it is no surprise that Skar finds thatmistis (mestizo, non-indigenous, mixed-blood)have manipulated the law on recognition ofcommunities to establish “their pseudo-commu-nity under State protection” and that “ironically,although the law was made to benefit indige-nous communities, the newly-established com-munities were often neither communities norindigenous”. He reports that the population ofone community that had been recognized wasmainly black, whereas other communities wereapparently of Chinese descent (1997: 111).

The Peruvian government currently uses the defi-nition of rural communities given in Law 25656(General Law on Rural Communities, of 30-3-1987). There they are defined as public-interestorganizations, with legal corporate status, com-prising families who live in and control certainterritories, linked by ancestral, social, economicand cultural connections, expressed in communalownership of land, communal work, mutualassistance, democratic governance and develop-ment of multi-sectoral activities, geared towardmembers’ self-realization and the country’sprogress.

Obviously, this definition is closer to the mythol-ogy woven by early 20th century indigenousadvocates than to current social science. There isa similar mismatch between the image of thetarget population (e.g. community = co-opera-tive) for the military government’s agrarianreform (1969) and scientific findings of the time(Skar, 1997). Therefore, different theoretical andethnographic approaches to Peruvian rural realityand the voices of social stakeholders themselvesshould inform the official vision. This task willmake it possible to overhaul public policy oncommunities and Andean irrigation. Otherwise,the official law will once again fall for theconceptual mirage.

Development andconstruction of ‘peasants’ and‘indigenous people’

Intervention-oriented development projects oftenpractise what is called ‘the fallacy of under-differ-entiation’, i.e. “the tendency to see ‘less-devel-oped countries’ as more similar than they actuallyare,” ignoring cultural diversity and adopting auniform (often ethnocentric) approach for highlydifferent types of beneficiaries (Kottak, 1997:224). The Andean world is no exception.

Peasants and indigenous, as a synonym for‘needy population groups,’ have often becomekey categories for development projects thatprove their legitimacy by proclaiming themselves

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to be indispensable components for their well-being. ‘Developmentalists’ manufacture argu-ments that then become self-fulfilling throughproject implementation. These argumentsinclude assertions about the ‘target population’,classifying it and categorizing it so that it has thecharacteristics that call for a particular interven-tion. The most common claims underlying devel-opment projects geared toward indigenous andrural peoples consider, for instance, that ‘thelifestyle of the indigenous peoples is materiallyinadequate’, that ‘integration will improve theirquality of life’, that ‘interest by indigenous peo-ples in new technology reflects their desire tobecome integrated’ and ‘progress is inevitable’(Bodley, 1988: 3). These premises are the founda-tion for developmentalist interventions and forthrusting the target population into anexpanded political economy, justifying the loss oftheir local autonomy.

However, there are ‘culturally compatible’ eco-nomic development projects that support locally-perceived needs for change, that are culturallyappropriate in design and practice (Kottak,1997). The problem is that, in their eagernessto support vulnerable groups, they often makethe same mistake, defining these groups as‘traditional’, isolated, autarkic entities, when inpractice they have been relating with othergroups of society for centuries. This tendencyincludes projects based on cultural ecology,which assume the existence of a harmoniousbalance between the behaviour of societies andtheir adaptation to the environment. Followingfunctionalistic logic, in which a change in anyelement of the system leads to changes in therest, they criticize development projects with‘westernising’ technological aspects that modifyor attempt to modify the cultural patterns ofsocietal groups. By so doing, they conceive ofthese groups as pristine, idealized entities thatmaintain their cultural characteristics and ecolo-gical equilibrium. They often also forget, in theirpurism, that the indigenous and rural peoplesthemselves are often the ones who exhaust theirown resources by using them unsustainably.

To cope with external interventions into theirculture, organization and environment, someindigenous peoples have mobilized themselves,attempting to regain the initiative and take

control. The Kunas in Panama organized them-selves to protect a forest and wildlife refuge intheir indigenous reservation. Forming theCommittee of Indigenous Peoples andCommunities of the Bolivian East (CIDOB) wascrucial to defending indigenous territory in thatpart of Bolivia. Both Amazon indigenous confed-erations (AIDESEP, CONAP) and Peruvian ruralconfederations (e.g. CONACAMI, Confederationof Communities Affected by Mining) bear wit-ness to the protagonist role that indigenous andrural folk are playing in the struggle to defendtheir rights. Interestingly, instead of groundingtheir claims in images of themselves as the‘needy population’, they base their demandsfundamentally on concepts of autonomy andsovereignty over their resources; i.e. on thepower to decide for themselves about the typeof development they want and need.

Any successful reworking of official laws onindigenous and rural water rights, for example,will require overcoming classical moulds ofparticipation and the discussion of proposalsprepared by the interested parties themselves.

State law, social meaning oflaw, and legal plurality

Revision of legislative policy on Andean irriga-tion must take into account the ‘social life’ ofgovernment legislation, i.e. what societal agentsdo with positive law. Beyond official desires anddictates, positive law acquires a constellation ofsocial meanings that can be appreciated onlywhen one abandons classical instrumentalismand pays attention to the social function thatState norms acquire (Griffiths, 1992).

The problem is that the instrumental vision oflaw is widespread. It is shared by State represen-tatives, development agents, classic legal sociol-ogy and people’s ‘common sense’. This ideologybelieves in the transforming power of law. Itassumes that the law is a privileged instrumentfor inducing and making social changes (e.g.agrarian, labour or judicial reform laws).

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This instrumental vision of law makes a series ofassumptions. The first is that the State, society andthe law are autonomous systems, but mechani-cally related. The second is that society and indi-viduals respond directly and automatically to gov-ernmental norms. The third is that the law is theprivileged ‘voice’ of the modern State. The Statespeaks, preaches and commands – even itself – inlegal terms and ways (not in moral, philosophicalor religious terms; Benda-Beckmann, 1989). Thefourth assumption is that communicationbetween the State and Society is perfect. The fifthis that positive-law norms are justified self-refer-entially if issued following the formalities of theirown system. Finally, instrumentalism assumes theState’s normative monopoly. On the basis of theseassumptions, it is postulated that legal changesproduce social changes according to the parame-ters established in public policy and are positive. Itis also postulated that law is a rational system forplanning and ‘social engineering’.

However, law is not a rational system for planningand designing societal life. It is a cultural phenom-enon and a social product, constructed by socialand governmental agents who ply their strategiesusing reasoning and the available legal tools. Lawprescribes, proscribes and also re-creates socialreality. Moreover, in a context of legal plurality,governmental norms acquire meaning as they areinterpreted, enforced and manipulated in societalsettings. The important thing is not to seewhether they were enforced as the legislatorintended, but to determine what role they play ina pre-existing social and legal constellation.

It is also very important to understand how theState is experienced and coped with locally. Localexpressions of the State are a far cry from thetheoretical self-portrayal (i.e. the Constitution)which emphasises the normative hierarchy,bureaucratic specialization of functions andneatly-established lines of command. As Urbanand Sherzer put it: “From the point of view ofnative peoples, states do not appear to bemonolithic or goal-driven, but rather heteroge-neous and random, guided by impenetrable andchanging motives (…) The state is heteroge-neous, composed of different and conflictingfactions, intertwined with local power groups”(1991: 12).

The State, for rural communities and indigenouspeoples, is not a consistent, self-regulated entitythat impartially regulates the life of society. Itacquires its physiognomy in terms of local condi-tions and the political deals that officials makewith local power brokers. The supposed autonomyof the State and impartiality of authorities repre-senting it become radically different in day-to-daypolitical practice: “Just as the state is not a singlemonolithic entity but made up of individuals andsemi-autonomous groups vying for resources andinstitutional survival, so too the state’s policies andorganizational models will be refigured at the locallevel” (Gelles, 2000: 174, note 6).

To analyse the water rights of indigenous andpeasant population groups within and versus apositive-law framework, the theory of pluralismwill be quite useful. Legal pluralism assumes theharmonious or conflicting co-existence of morethan one legal order in a single geopolitical set-ting(7). This concept has opposed the notion of‘legal centralism’, which maintains that the onlybody able to create law is the State (Griffiths,1986). On the contrary, many researchers haveshown that both creation of norms and adminis-tration of justice are not exclusively State func-tions, but are produced in multiple social domains.

Law is not only a normative system with coercivecapacity, but is above all an exercise of socialimagination, a cultural construction for politicalpurposes (Santos, 1995) whose changes are con-ditioned by its historical context. Additionally, itis crucial to remember that, in terms of powerrelationships and margins of autonomy, locallegal and social orders have been incorporatingelements and concepts from other groups andthe State (Gelles, 2000). The possibilities of repro-ducing customary law lie precisely in the perme-ability and adaptability arising from its semi-autonomous nature.

In this context, law is seen as an instrument at theservice of human behaviour, and is used accord-ing to people’s needs. Individuals make changesto legal systems. For example, the quest for jus-tice is not restricted to a single legal jurisdiction,but is carried out by what has been called ‘forumshopping’ (in the classic formulation by K. vonBenda Beckmann).

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Current law and the various strategies wieldedby societal agents are the clearest expressions ofthe legal hybridisation process developed byrural communities to cope with their changingpolitical and social contexts.

Official neoliberal legislationand indigenous andsmallholder rights

Peruvian laws on natural resources and waterdeny, ignore or, at best, very restrictedly recognizethe validity of indigenous and small-farmer rights.This slant has been reinforced over the pastdecade, in which the concept of economics andthe State changed, reversing the polarity of tradi-tional Latin American nationalism. Liberalizationof the economy and the consequent need toadapt the State’s role to these processes took formduring the successive governments of former andnow fugitive President Fujimori (1990-2000). Inideological terms, this economic liberalization hasattempted to reinforce the concept of State sover-eignty over natural resources. For some resourcessuch as minerals, the Republic had eminentdomain, reproducing the Spanish colonial royal-ties system. But for others such as water, thisnational control took much longer. For instance, itwas only in 1969 that the military reform govern-ment nationalized water resources. In the recentwave of neoliberal reforms, the State has reaf-firmed its monopoly over natural resources onbehalf of the Nation and assumed the power ofdistributing them (e.g. through concessions, ortransfers). The aim is not to use resources directlythrough public enterprises, but to tender themto investors, promote national and foreigninvestment, and generate fiscal revenues. Underthis arrangement, the neoliberal State proclaimseminent domain over resources to provide legalsecurity to concessionaires who receive usagerights.

The social and economic engineering required todevelop this model assumes proper managementof laws. One of the first legal instruments to takethis orientation was the 1993 Constitution. First

of all, it restricts the State’s entrepreneurial activ-ity to a minimum and secondly it defines renew-able and non-renewable natural resources as theNation’s heritage, over which the State has sover-eign control. ‘The organizational law sets theconditions for its utilisation and its granting toprivate parties. A concession grants its bearerreal rights, subject to those legal norms (Article66). Developing the constitutional mandate, theorganizational law for natural resource usageclarifies that this State sovereignty ‘becomes thejurisdiction to legislate and exercise executiveand judicial functions over them’ and the powerto grant ‘rights for sustainable utilisation’ (LawNo. 26821 of 1997, Articles 6 and 19).

These norms aim to foster an active policy of con-cessions to the private sector and prevent theState from getting directly involved in naturalresource usage. Accordingly, the national andforeign business sector has to finance anddevelop investment and utilisation projects.Pursuant to these provisions, the draft water lawprepared by a commission under the Presidencyin 2001, for example, empowered public admin-istration to grant water concessions as real rights,whereas the new proposal in 2003(8) specifies thatwater concessions will be categorized as adminis-trative real rights (Del Castillo, 2001).

Although the current proposal specifies the cov-erage of the real right granted(9), there is a prob-lem with these approaches, namely, what hap-pens with societal groups who have owned andused resources ancestrally? Is it enough todeclare that ancestral rights of rural communitieswill be recognized and respected? What is thescope of the term ‘ancestral rights’ of indigenousand smallholder communities? Since the norm isdesigned for economic agents who have financ-ing, in practice this will tend to displace Andeanpeoples and communities from the customaryrights that they had prior to enacting the norm.In sum, the norm will create an implicit socialhierarchy based on business capacity and the pos-sibility of providing revenues for the State itself.

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With this same approach, the law for utilisationof natural resources (mentioned above) stipu-lates, for example, that rural communities andlocal population groups may use ‘naturalresources freely accessible in the environmentadjacent to their land’ for ritual and subsistencepurposes but ‘without exclusive right’ and ‘pro-viding that there are no exclusive or excludingthird-party rights or reservation for the State’. Italso states that local utilisation ‘cannot beclaimed against third parties, registered, ordemanded’ and that it concludes when theState grants the resource to other parties.Communities have preference to use resourceslocated within their own land providing thatthe State has not reserved them for itself orgranted them via concessions. Although the1993 Constitution recognizes the power of ruraland native communities to administer justiceaccording to their own customary law, the normdoes not recognize the validity of customarylaw to define, enjoy or exclude third partiesfrom utilizing those resources.

Obviously, ‘what was written with the right handhas been erased with the left hand’. That is, thereis no recognition or effective legislative protec-tion to enforce ‘community jurisdiction’ or localrights over resources they control. The right thathas been granted is frail, subject to revocationwhenever the State or third parties activate offi-cial mechanisms to appropriate or exploit thoseresources. Although it does produce the ‘legalsecurity’ longed for by investors (e.g. miningcompanies) and paves the way for infrastructuredevelopment projects, the other side of the coinis the social and legal insecurity for local people(from the standpoint of customary allocation ofaccess and usage rights).

In the specific case of water, the market has notyet been liberalized, because the law in effectdates back to 1969, and is eminently public-sector– and State-oriented. It is used by many ruralsociety sectors to oppose full privatisation ofwater. However, the numerous proposals draftedsince 1993 have aimed to fit this special law intothe current constitutional framework, arguingthat water management must be freed ofbureaucratic stumbling-blocks, and local man-agement organizations must be granted greaterautonomy (e.g. users’ boards, irrigators’ commit-

tees; see Del Castillo, 2001; Rebosio, 2001). Theissue in this national debate is precisely thedegree to which water law will be bent towardliberal postulates, what role the State will play inwater management (overseeing, arbitration,neutral), what room for local autonomy will beacceptable for sustainable water management,and how equitable, efficient water distributioncan be encouraged (e.g. the electronic confer-ence on water law, Del Castillo, 2001).

The status of indigenousrights in the Peruvianconstitution and legal system Peru’s 1993 constitution recognizes – in Article2(19) – that all persons are entitled to their ethnic,cultural identity. On the basis of this principle, theState recognizes and protects the nation’s ethnicand cultural plurality. It also declares that Quechua,Aymara and other native languages are official inaddition to Spanish, in areas where they predomi-nate (Article 48). These individual rights have theircollective correlation in Article 89, which obligesthe State to respect rural and native communities’cultural and ethnic identity. That article also recog-nizes communities’ legal existence and corporate-body status and stipulates that they areautonomous in their social, economic and adminis-trative organization, in communal work and infreedom to distribute their land.

In Article 88, the State guarantees the right toown land privately or communally. However,unlike the above constitutional provisions, com-munal ownership of land is only non-transferable,having lost the protection against seizure andtransfer granted by the 1933 and 1979 constitu-tions. Furthermore, this non-transferability hasbeen curtailed by stipulating that communitiescan lose their land through legal abandonment.Such abandonment happens when, according toLegislative Decree No. 653 of 1991, “the ownerhas left the land uncultivated for two consecu-tive years”. In this case, land becomes publicdomain and is put up for sale. The reduction ofconstitutional protection aims to incorporatecommunal land into the market economy(10).

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In the administration of justice, the Constitutionhas innovated by recognizing the authorities ofrural and native communities as empowered toexercise judicial functions within their territories,applying customary law as long as they do notviolate fundamental human rights (Article 149).Finally, the amendment of Chapter 14 on decen-tralization, regions and municipalities includesnorms to promote the right to political participa-tion (Article 2.17) for native communities and‘original peoples’(11) in membership of regionaland municipal councils(12).

In the field of international law applicable toindigenous peoples, the most important treatyratified by Peru is the International LabourOrganization Convention 169 on Indigenous andTribal Peoples in Independent Countries. TheConvention has been in force since February 2nd

1995(13). As indicated in the first section, theConvention stipulates who qualifies under thelegal definition of ‘indigenous peoples’ and‘indigenous’ (Article 1. 1.b.2).

Regarding indigenous rights and the environment,Peru has signed the most important documentsfrom the Earth Summit (Rio de Janeiro, 1992).Whereas the Rio Declaration is legally binding,Agenda 21 is not, and is an example of ‘soft law’because it sets principles that are only morallybinding on States. In general, the need is recog-nized for indigenous peoples to participate in poli-cies ensuring sustainable development (Principle21). Agenda 21 devotes a chapter to the role ofindigenous peoples, recognizing their wealth oftraditional knowledge regarding natural resourcesand environmental management. It recommendsfor States to foster the resolution of conflicts ofland and resource use and to protect traditionalknowledge. It also recommends ensuring the par-ticipation of indigenous peoples in the design ofenvironmental laws and policies that affect them.

In domestic law, the legal definition of rural com-munities and community members is crucialwhen determining the enforcement of speciallegislation. The most important laws are the 1984Code of Civil Procedure and the General Law onRural Communities, No. 24656 of 1987. Article134, in the book on corporate bodies, of theCode states that: “Rural and native communitiesare traditional, stable public-interest organiza-

tions, constituted by individuals and orientedtoward the purposes of optimal utilisation oftheir property, for general, equitable benefit ofcommunity members, promoting their inte-grated development. They are regulated by spe-cial legislation”.

However, this recognition is subject to a series ofconditions that the Code itself establishes in thefollowing articles:

“For communities to exist legally, in addition tofiling for registration, they must be officially rec-ognized” (Article 135).

“The Executive Branch regulates the status ofcommunities, ensuring their economic andadministrative autonomy, as well as their mem-bers’ rights and obligations and other norms fortheir recognition, registration, organization andoperation” (Article 137).

Evidently, the apparently full recognition by the1993 Constitution (rural communities’ legal exis-tence and corporate-body status) collides withthe Civil Code barriers that impose the require-ments of official registration and recognition byadministrative agencies. Furthermore, althoughthe Constitution could be construed to override,being the highest-ranking norm, in daily legalpractice communities can operate successfullyonly when they accredit their official registrationand recognition.

The General Law on Rural Communities, Article 2,defines them as “public-interest organizationswith legal existence and corporate-body status,comprising families who inhabit and control cer-tain territories, linked by ancestral, social, eco-nomic and cultural connections, expressed in thecommunal ownership of land, communal work,mutual assistance, democratic governance, anddevelopment of multi-sectoral activities…”

To obtain official recognition and registration oftheir legal status, the regulations of the GeneralLaw on Rural Communities (Supreme Decree 008-91-TR) establish that communities must havetheir territory in their possession, feature thecharacteristics defined in Article 2 above, andhave the consensus of at least two thirds of theirmembers to begin the procedure. Additionally,

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to obtain title to their territory, communitiesmust present a series of proofs as evidence oftheir ownership. In fact, Law 24657 on the titleand boundaries of rural community territory(1987) states that: “Communal territory com-prises the community’s original land, landacquired according to common and agrarian law,and land awarded for agrarian reform purposes.Original land includes: what the community haspossessed, including land not being used, andthat land indicated in their titles” (Article 2).

On belonging to the community, Article 5 of Law24656 distinguishes between members and qual-ified members. The former are born in the com-munity, offspring of community members andpeople integrated into the community. They canbe integrated by establishing a stable couplewith a community member or when a person oflegal age applies to the general assembly to beadmitted as a member. Qualified members arethose of legal age (or acquired civil capacity), liv-ing in the community for over five years, notbelonging to any other community, and regis-tered in the community roster. Additionally, eachcommunity’s by-laws can establish furtherrequirements, besides those of the Law.

For proper natural resource management,Convention 169 prescribes that the State mustrecognize and protect indigenous peoples’ landand habitat because they are essential for theirmaterial and cultural reproduction. It must alsooversee indigenous peoples’ rights to naturalresources within their territories. These “rightsinclude peoples’ right to take part in using,administering and conserving such resources”(Art. 15.1). However, in royalty-based systemssuch as Peru’s, which attribute ownership ofunderground minerals and resources to theState, indigenous peoples’ rights to participationand consultation in decisions about using theseresources are clearly restricted (Art. 15.2).

Regarding identity and use of natural resources,Peruvian law states that “the State respects andprotects the community’s uses, customs and tra-ditions [and] fosters the development of theircultural identity”; and that the community isobliged to ”defend ecological equilibrium,preservation and rational use of naturalresources” (Arts. 1.d and 3.e, Law 24656 of 1987).

Along these lines, the Organizational Law forSustainable Use of Natural Resources mentionedabove (Law 26821 of 26-6-1997), for example,defines water as a natural resource and recog-nizes ancestral modes of natural resource use byrural communities and local population groups.Unfortunately, as we have seen, it then imposesthe State’s eminent domain to grant manage-ment of these resources, thus favouring govern-mental rights (e.g. concessions).

Additionally, Article 18 ratifies liberal thinking bystating that “Rural and native communities havepreference in sustainable use of naturalresources on their land, to which they have duetitle, except for the State’s express reservation orexclusive or excluding rights of third parties”. Thisclear pre-eminence of rights issued by the Statecontradicts the provisions of ILO Convention 169,by failing to respect participation by and consul-tation with indigenous peoples affected by useof natural resources located in their territories(Articles 15.1, 15.2, 13 and 14).

Environmental law – gathered into the Environ-mental Code in effect since 1990 (LegislativeDecree 613) but emasculated by the governmentthat enacted it, because the headway it made”increased the cost of doing business” – extendsrecognition of rural communities’ rights in natu-ral protected areas: ”The State recognizes ruraland ancestral native communities’ right to ownland that they possess within protected naturalareas and their zones of influence; [and] pro-motes participation by such communities for thepurposes and aims of protected natural areaswhere they are located” (Article 54).

In an apparent play on words, the environmentalcode introduces the category of ‘cultural naturalheritage’, as “all archaeological or historical con-structions that, being integrated into the envi-ronment, make rational, sustained use possible”(Article 59). It states that areas containing themcannot be claimed for agricultural, mining, orsuch purposes, and that “areas where there areterraces, canals, aqueducts or any construction ofan archaeological or historic nature shall beexcluded from any concession” (Article 61). Sincethese articles on cultural natural heritage matchthe definition of the elements constitutinghuman settlements in general (Article 80,

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Environmental Code), we find that a fundamen-tal element in these settlements, in addition tothe soils, water, natural resources and atmos-phere making them possible, is “the economicand social infrastructure that shapes organiza-tion and conditioning of space”.

Since indigenous peoples, local populationgroups and rural communities form human set-tlements, these provisions could be used toaffirm their rights to control the cultural naturalresources that they manage (e.g. canals, terraces)and to exclude third parties who attempt to gainconcessions over them. These articles could alsobe used to defend and assert their customaryways of using resources, because this organiza-tion is, per se, a constitutive element of theirhuman settlements, i.e. part of the “economicand social infrastructure that shapes organiza-tion and conditioning of space”.

The General Law on Water in effect (Decree Law17752 of 1969) makes no mention whatsoever ofrural and native communities’ rights to managetheir water resources. What we do find is uni-form, abstract treatment for all those who usewater for agrarian and non-agrarian purposes,whom the Law terms, in general, ‘users’ (Article12). Article 136 of the Law establishes that waterusers in each irrigation district must organizeinto Users’ Boards and Irrigators’ Commissionsfor each Irrigation District Sector. Current regula-tions for this Law have no explicit reference,either, to rural communities’ rights.

Legislative Decree 653 (Law to Promote AgrarianInvestments) and its regulations maintain theconcepts of users, users’ board and irrigators’commissions, which are also present in SupremeDecrees 047-2001-AG and 057-2001-AG, whichestablish the current regulations for water userorganizations (Articles 1 and 2). The first normdefines the Irrigation District as “the continual,geographical area, comprising one or morewatersheds, sub-watersheds or part thereof, inthe jurisdiction where the Technical IrrigationAdministrator has authority to enforce theGeneral Law of Water”. It also orders that: ”Waterusers in each Irrigation District shall mandatorilyorganize into Irrigators’ Commissions for eachirrigation sector or subsector and a Users’ Boardfor each Irrigation District. They shall also register

in the respective roster to be able to use waterand pay the water fees by unit of volume”(Article59, Leg. Dec. 653).

These norms make no direct reference, either, torural communities, but it follows that communi-ties must organize an irrigators’ commission inorder to join the respective users’ board. Tohave full rights to participate in the irrigationsystem, this commission must be recognized bythe administrative ruling of the TechnicalAdministrator of the Irrigation District (Article 4,Supreme Decree 057-2001-AG; Legislative Decree653, Article 60). Comparing this norm with theprovisions of the regulations of the General Lawon Rural Communities (Supreme Decree 008-91-TR of 1991), we see that communities materializethis participation by setting up a specialised irri-gation committee.

The law has granted preference to communitieswho decide to use mineral / medicinal waterlocated in their territory for tourism. In this case,they can set up a specialised committee and theregulations of Law 25533 establish that theMinistry of Industry, Tourism and Integration isresponsible for granting the usage license. If therural communities decide not to take advantageof this possibility, the concessionaire must obtainexplicit community authorisation before theState will grant the concession.

In general, Peruvian norms recognize indigenouspeoples’ and rural communities’ territorial rightsby subjecting them to a series of requirements,such as registration of their land, providing con-tinual possession of it, and maintaining traditionalforms of social organization. The problem theyface, pursuant to the Constitution, the Civil Codeand Legislative Decree 653, is that their land canbe declared legally abandoned when they fail tooccupy and work the land for two consecutiveyears. Undoubtedly, this possibility placesindigenous peoples and communities in a veryfragile position, because it is well known that, inAndean and Amazon ecosystems, land may beleft fallow for longer than this legal limit.Moreover, the Law considers that all unusedland is State property, which makes it urgentlynecessary to obtain communal title to land,because the legal presumption assumes againstcommunities.

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The Law not only recognizes rights to a giventerritory but includes the habitat traditionallyused by indigenous peoples (particularly, in theAmazon region). This opens up possibilities todefend resources they use without necessarilyhaving to be located within their delimited terri-tory. As for uses, the Organizational Law forSustainable Use of Natural Resources recognizesancestral modes of natural resource use by ruralcommunities and local population groups, butsubject to the State’s eminent domain; the Statemay alter these uses and grant them via conces-sions. It also subjects recognition of ancestralmodes of natural resource use to the conditionof respecting environmental protection norms.

In terms of water used for consumption, thenorms recognize no specific treatment forindigenous rights. In general, they state that con-sumption to meet primary needs requires noadministrative authorisation. Also, the Statemust respect communities’ uses and customs andconsequently recognizes traditional modes ofnatural resource usage. In theory, uses for con-sumption by indigenous and small farmers mustabide by general water law.

In theory, the system of constitutional guaran-tees, the constitutional nature of indigenousrights and their establishment in internationaltreaties should help Andean communities andfarmers interested in having their customaryrights respected or preventing their fundamentalrights from being violated. They could apply tothe judicial authorities to demand respect andaffirmation of their rights (e.g. to ethnic identity,community autonomy, ownership and the rightsprovided for in ILO Convention 169). To achievethis, they could take different actions, dependingon the nature of the threat or violation of theirrights, and could even activate internationalhuman rights protection mechanisms (e.g. theInter-American Human Rights Protection Systemof San José). In this way, they could force a sup-portive action (against authorities who areundermining their rights), a declaration ofunconstitutionality or class action (against lawsand decrees that violate the Constitution), or anaction of compliance (for the authorities to abideby the norms).

Conclusion

This overview shows how necessary it is to radicallytransform the relationship between peasant andindigenous peoples and the State. Not only muststrategies be designed for defence on the basis ofofficial laws, both national and international, butabove all a political mobilization must achievethe recognition and legal establishment ofindigenous and peasant rights to control suchvital resources as water.

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ENDNOTES (1) Based on Guevara et al. (2002) and on Urteaga andGuevara (2002).

(2) Skar remarks that “the term ‘Indian’ was forbidden, under the pretext that the word ‘small farmer’ [or peasant] was more dignified… Because of strict use of the term ‘smallfarmer’, Indians are grouped into the Marxist economic class of peasants, and their cultural identity – what makes them so different from the rest of the Peruvian population – is discarded as something undesirable or unimportant”. (1997, 102-103).

(3) Guevara-Gil 2001.

(4) Giusti 1999, 222. In the context of Latin Americanconstitutional law, Clavero makes a truly advanced proposal (2000).

(5) As Taylor puts it, “true value judgements assume thefusion of normative horizons, assuming that we have beentransformed by studying the ‘other’, so that we do not judgeaccording to only our familiar original norms” (1993, 104).

(6) Enrique Congrains, No una, sino muchas muertes [Notone, but many deaths] (Lima, 1957).

(7) A summary of the main technical contributions inGuevara-Gil and Thome (1992).

(8) Proposed Water Law, April 2003, drafted by the Multi-Sectoral Technical Commission D.S. 122-2002-PCM.

(9) According to the Proposal, “[…] the National WaterAuthority grants the titular holder the right to utilize water[…]” (Article 45) and the titular holder may “use, enjoy,allocate and claim an annual allotment of the waterextracted” (Article 46); the concession can expire because of“[…] c) failure to pay two consecutive quotas of theeconomic retribution […] d) un-authorized change of thewater utilisation activity; and e) when the titular holder hasbeen penalized twice for the same water norm infraction, ofa very serious nature, and has not complied with the ordersissued by the National Water Authority”.

(10) The 1984 Code of Civil Law states that “communities’land may not be transferred, encumbered or seized” (Article136) but the subsequent constitutional mandate hascurtailed these features of communal property.

(11) Note that here a new term is introduced into Peruvianpositive law. The juridical and social scope of the category of“original peoples” must be determined. According toCONAPA, the National Commission of Andean, Amazonianand Afro-Peruvian Peoples, “the term ‘indigenous’ includesand may be used as a synonym of ‘original’, ‘traditional’,‘ethnic’, ‘ancestral’, ‘native’, or other such words” (Article 5of the proposed constitutional amendment presented toCongress on 17-4-02; in Congreso del Perú 2002, 59).

(12) Law No. 27680 on Constitutional Amendment ofChapter XIV, Title IV on Decentralisation (6-3-2002)establishes that regional governments have political,economic and administrative autonomy and comprise thePresident (executive branch), the Co-ordinating Council(consultative and co-ordinating branch), and the RegionalCouncil (normative and oversight branch). The regionalcouncil shall have no more than 25 members and isempowered to “regulate activities and /or services regardingagriculture (…), energy, mining (…) and the environment”(Article 192.7). The constitutional amendment involves a lawthat will establish “minimum percentages to grant access forrepresentation in terms of gender, native communities andthe original peoples on Regional Councils “. Law No. 27683on regional elections (27-3-02) stipulates that the list ofcandidates for the regional council will comprise “no lessthan 30% men or women, and at least 15% representativesof native communities and original peoples of each regionwhere they are located “ (Art. 12).

(13) According to the Fourth and Last Transitional Provisionof the 1993 Constitution, constitutional norms and those oflower hierarchy must be interpreted according to theUniversal Declaration on Human Rights and otherinternational treaties ratified by Peru dealing withfundamental rights and freedoms. Accordingly, ILOConvention 169 has constitutional status, and informsinterpretation of all Peru’s juridical pyramid.

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Urteaga Crovetto Patricia, Guevara-Gil Armando, 2002,Legislación de recursos hídricos y derechos indígenas.Propuesta de investigación para el caso del Perú. Water Lawand Indigenous Rights. The Research Proposals. WALIR Phase 1, Volume 1, Rutgerd Boelens and MiguelSolanes, co-ordinators, pp 24-54, Wageningen Universityand UN CEPAL/ECLAC, Wageningen/Santiago, Chile.

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A comparative research and action programme focusing on peasant and indigenous waterrights and the legal and material discrimination of local water management forms:

In regions like the Andes, peasant and indigenous water management systems are the fundamentalbasis for sustaining local livelihoods and national food security. Nevertheless, in addition to long-stand-ing, extreme inequalities with regard to water access, indigenous and customary water rights are beingencroached upon, discriminated against and put under growing pressure. Consequently, millions ofindigenous water users are being marginalized. Moreover, they are usually not represented in nationaland international decision-making structures. This contributes to a situation of increasing inequality,poverty, conflict and ecological destruction. The Water Law and Indigenous Rights programme sets outto understand indigenous and customary rights and management forms and sheds light on how theyare legally and materially discriminated against and undermined.

An inter-institutional think-tank that critically informs the debates on indigenous andcustomary rights to facilitate action of local, national and international platforms:

The WALIR initiative is a research and action programme that supports and deepens the debateson indigenous and customary rights and their relevance to water legislation and policy, both tofacilitate local and national action platforms and to influence law- and policy-makers. Thereby,WALIR aims to make a concrete contribution to better legislation and water management policies.Of major concern are the distribution of equitable rights and democratic decision-making, as wellas support for the empowerment of marginalized water use sectors.

A research alliance that presents concepts, methodologies and contextual proposalsconcerning the recognition of indigenous water rights and management rules:

WALIR seeks to integrate in its analysis and proposals its fundamental water management concepts:• Institutional viability: an appropriate organizational and normative framework that sustainswater management, embedded in its cultural context• Equity: social justice and acceptability of the rules and practices that inform water manage-ment and distribution • Political democracy: veritable representation of the diverse, multiple stakeholder groups in deci-sion-making on water management• Human capacity and capability: adequate water management knowledge and contextual skills • Economic viability: economically sustainable water management to maintain livelihoods andproduction strategies• Productivity, efficiency and effectiveness of water use: productive and appropriate land andwater management as well as technical sustainability• Security of water access: the ability to enforce water use rights now and in the future

WALIRWater Law and Indigenous Rights

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• Ecological equilibrium: protection of good quality water resources and prevention of ecolog-ical degradation

A strategy that builds upon academic investigation, action-research, capacity building andadvocacy, together with existing networks:

The strategy of WALIR builds upon research and action, together with local, regional and interna-tional networks – both indigenous and non-indigenous. While WALIR research also covers thecases of Mexico and the United States, its main focus of action is in the Andean countries: Peru,Bolivia, Chile and Ecuador. Central issues are indigenous water rights in the context of local rule-making, in national law and in international treaties. Several thematic research projects comple-ment and strengthen the network, and lay the foundation for a broad international framework: forexample, on water management and livelihood systems, indigenous identity, gender, food secu-rity, legal pluralism, and methods for dialogue on water policy. On the basis of this research, WALIRand its counterpart platforms implement a number of exchange, dissemination, capacity buildingand advocacy activities on water legislation.

An endeavour joining committed, inter-disciplinary researchers, platforms and counterpartorganizations in Latin America, North America and Europe:

WALIR is coordinated by• Wageningen University, Department of Irrigation & Water Engineering, The Netherlands • UN/ECLAC – United Nations Economic Commission for Latin America and the Caribbean

The basic WALIR network of research and action counterparts consists of• Peasant & indigenous organizations and NGOs in Peru, Bolivia, Chile, Ecuador and Mexico• University of California at Riverside, Dept. of Anthropology, USA• University of Colorado at Boulder, School of Law, USA• Universidad Católica del Perú• IPROGA/ Inter-institutional Program for Improved Water Management, Peru • CEDLA /Centre for Latin American Research and Documentation, The Netherlands• Universidad Mayor San Simon – Centro AGUA, Bolivia • Universidad Jesuita Alberto Hurtado, Chile• IRD / Institute for Development Research, Montpellier, France• CAMAREN /Capacity-building Network on Natural Resource Management, Ecuador • CONAIE /Confederation of Indigenous Nationalities of Ecuador• El Colegio de San Luis, México• CGIAB /Commission for Integrated Water management in Bolivia • SNV/Netherlands Development Organization, The Netherlands, Peru, Ecuador

The Water Unit of the Netherlands Ministry of Foreign Affairs funds the program.

Contact / coordination: [email protected] and www.eclac.cl/drni/proyectos/walir

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Drying up lakes and wetlands, moving rivers to build hydropowerplants, polluting watersheds and ruining springs – these are governmentdecisions that have affected indigenous peoples and rural communitiesin different states and regions of Mexico. This situation has not changedduring the government of President Vicente Fox, as shown by the damson the Usumacinta River.Water management in indigenous regions is a complex issue. It is notenough to ensure adequate flow to irrigate crops. Ecosystems must also beprotected. It is vital to regulate water cycles, for the survival of the peopleliving there. Government failure to keep its word in agreements withZapatismo has left pending the issue of respect for indigenous peoples’rights to manage and control basic territorial resources, such as water.

Francisco Peña is an anthropologist (CIESAS-Occidente) and researcher at El Colegio de San Luis,CONACYT system. He studies social relations involving water management, particularly pollution bysewage in regions with indigenous populations and is the co-ordinator for Mexico of the Water Lawand Indigenous Rights programme, Wageningen-CEPAL/ECLAC.

[email protected]

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Indigenous communities in Mexico have oftenhad to defend the water resources they need tosustain their lifestyles and livelihoods. They havealso had to cope with governmental decisionsthat fail to consider their needs and rights.Drying up lakes and wetlands, flooding townsand farmland to build huge dams, pollutingrivers and aquifers with petroleum industrywastes, transferring water to big cities – these arejust a few examples of decisions that haveaffected the indigenous peoples in differentregions of Mexico.

Changes made since the federal elections in 2000have not substantially altered the involvementof indigenous peoples in water managementdecision-making, particularly in regard to drasticalterations in the territories where they live, suchas the construction of major reservoirs to gener-ate electricity.

On the contrary, as we shall see below, there isevidence that the Vicente Fox government isrepeating the same types of measures as in thepast, by building dams against the interests andrights of indigenous and rural communities(1). Thegovernment’s failure to keep its commitmentsunder the San Andrés agreements(2), defendednot only by the Zapatista movement, but also bythe largest coalition of unarmed indigenousorganizations, confirms the position taken by thefederal government in this field.

Studies under the Water Law and Indigenous Rights(WALIR) programme in the Andean area show thatthe issue of water rights, always linked to the rightto territory, is one of the great challenges facing theindigenous peoples of Latin America (Gelles, 2002;Gentes, 2002; Guevara et al., 2002, among others).This is a key issue for water management on thissubcontinent, if we consider that conservative cal-culations estimate that 40 million indigenous peo-ple live in this part of the world.

The purpose of this paper is to offer an overview ofthe water management challenges facing Mexico’sindigenous peoples. Democratic water manage-ment must include respect for the rights of indige-nous peoples and rural communities, which meansactually including them in decision-making.Unfortunately, this issue has not received dueattention by government institutions in Mexico(3).

This article is divided into four sections. The firstoffers an overview of Mexico’s indigenous peoplesand their relationship with water resources. Thesecond presents background information onwater management in Mexico, and the roleplayed by indigenous people. The third sectionoffers a summary of some of the main problemsfacing rural communities and indigenous peoplesin water management. Special mention is madeof links between water management and territo-rial management, which is a central element inthe program of claims raised by various indige-nous organizations of Mexico. Finally, some con-clusions and proposals are presented.

The indigenous peoples ofMexico: a brief overview

Mexico is a country with great ethnic and linguis-tic diversity. According to the 2000 populationcensus, there are just over 10 million indigenouspersons, 10.5% of the total population, speakingover 62 languages and living throughout thecountry, although mainly concentrated in thecentral and southern states(4).

The states with the greatest indigenous popula-tion are: Oaxaca, 1.5 million; Chiapas, one million;Veracruz, Yucatán, State of Mexico and Puebla,with about 900,000 indigenous inhabitants each.

Hidalgo, Guerrero, Quintana Roo, San Luis Potosíand Tabasco are other states with sizeableindigenous populations. Among the northernentities on the US border, Sonora has a signifi-cant population of Yaquis and Mayos, Chihuahuahas Tarahumaras, and Coahuila has a smallKikapú group. About 27% of the country’s 2443municipalities have populations that are 40% ormore indigenous (Figure 1).

Some 333,000 indigenous people live in MexicoCity, the capital, making it the urban concentra-tion with the largest indigenous population inMexico. The languages most spoken are Náhuatl,Maya and different variants of Zapotec andMixtec.

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100 0 100 200 300km

National Indigenous Affairs Institute

Source: INI-CONAPOEstimate of indigenous population based on data from the 12th Population and Housing Census, Mexico City, 2000, INEGI.

Localities

With 40 to 69% indigenous population

With 70% or more indigenous population

With under 5000 indigenous inhabitants

With under 40% and over 5000 indigenous inhabitants

With 40 to 69% indigenous population

With 70% or more indigenous population

State division

Figure 1. Distribution of Indigenous Populations in Mexico

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Indigenous peoples are not just a populationstatistic. They play a very important social rolein various aspects of the life of the country, andtheir intervention is particularly outstanding inmanaging forests, jungles and lacustrine envi-ronments (Toledo and Argueta, 1992; Nigh andRodríguez, 1995). Most of the country’s wood-lands area is legally owned or inhabited byindigenous communities and peoples, who havebecome major forest resource stewards. (Merino,1997; Chapela, 1995).

Indigenous people also play a leading role in theuse and protection of biodiversity, and havebroad, complex knowledge of the highly variedecosystems where they live: deserts, coastalplains, rain forests and temperate / cold forests(Carabias et al., 1994).

The water situation varies for indigenous peoples.Most live in parts of Mexico where water isreadily available, since central and especiallysouthern Mexico have the highest mean annualrainfall. In some zones of Chiapas, Oaxaca,Veracruz, Tabasco and San Luis Potosí, rainfalltotals 3500 mm per year, compared to thenational average of 770 mm.

At the other extreme are peoples inhabiting dryareas, such as the Otomís (Hñähñü) of theMezquital valley, which has an average 350 – 400mm of rain a year, or the Seris (Konkaak) of theSonora coast, with precipitation of 100 – 200 mmper year.

Water is a basic element of these peoples’ eco-nomic, social and cultural lives, that varies withenvironmental diversity. For most, it is crucial tohave water for crops, but some also strive to keeptheir rivers, lakes and inlets in good shape forfishing. For all of them, it is very important tohave a sufficient supply of good-quality water forhuman consumption.

Indigenous peoples are dependent on water forconsumption, but they also play a key role inwatershed conservation – particularly the forestcommunities. Increasingly, indigenous and ruralcommunities are concerned about the generalconditions in which their territory is managed, toguarantee the quantity and quality of the waterthat they require. Many woodlands indigenous

communities are committed to sustainable forestmanagement, namely because they understandthe role that the woods play in water catchment.They offer highly valuable environmentalservices to society in these areas.

Water managementWater use in Mexico is governed by Article 27 ofthe Constitution and its Regulations, theNational Water Law (enacted on 2 December1992(5)). The definition of national waters in thelaw is so broad that it encompasses practically allsurface water and regulates the extraction ofunderground water. Through the National WaterCommission (CNA), the federal government(executive branch) legally administers and wieldsauthority over the country’s water resources.

The federal government has concentrated con-trol of Mexico’s water resources through alengthy process spanning the late 19th and entire20th centuries. It displaced state governments andmunicipalities for control of rivers, lakes, springsand aquifers. Similarly, irrigator groups and com-munity authorities governed by uses and customswere phased out of decision-making by federalintervention (Sánchez, 1993; Aboites, 1998).

This process occured due to various legal, political,technical and financial measures, with a majorrole played by large water projects that havechanged the configuration of many watersheds.

This planning and control of water projects,changing watercourses throughout basins, hasconcentrated knowledge about water regimeswithin a group of experts and the federal gov-ernment technical staff, at the expense of thelocal expertise legitimacy. These projects, gearedtoward expanding the area under irrigation, wereheaded by the National Irrigation Commission,and later by the Secretariat of Water Resources.

Concentrating control of water resources partic-ularly affected indigenous peoples’ rights to theiraccustomed uses of lakes, springs and rivers. Andwhere lakes and wetlands were dried up or majorreservoirs built, it also altered the territories

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themselves, causing profound changes in thelifestyles of countless communities.

There was significant growth in the country’sirrigated area from 1920 to 1970, and increasedelectric power was available for industrial andurban growth. This was achieved through amanagement model that concentrated all watermanagement decisions in the executive branchof the federal government. Under these condi-tions, water projects nation-wide attained anunprecedented magnitude.

Up until the late 1980s, there was no societalinvolvement in decision-making. Affected groupshad no recourse but open protest. Under theselegal provisions, an example of such project wasthe transfer of water from the Lerma river basinto Mexico City. This affected many rural andindigenous communities in the State of Mexico.They saw their lakes and wetlands vanish, wherethey had fished and collected other lake prod-ucts. Farming peoples were left without waterfor their crops.

The 1992 Law, in tune with changes in othercountries, charged the CNA with accrediting,promoting and supporting organization of users“to improve water utilisation and preserve andcontrol water quality”, and set up watershed toenhance water management by co-ordinatingand building consensus among the CNA, differ-ent levels of government and users.

The current law favours a fragmented approachto water management, by focusing solely on sec-toral uses (urban, agricultural, industrial, power)and paying only very slight attention to theimpacts of such uses on ecosystems or large terri-tories. Current water management in Mexico hasnot changed much from traditional approaches.Forming watershed councils involves users onlyaccording to their type of water use (agricultural,urban, industrial). So indigenous peoples andcommunities, interested in the impacts thatwater management might have on their lifestylesand in general on the territories where they live,have no forum to express their concerns or influ-ence decision-making(6).

Nor does the Law recognize collective rights forindigenous peoples over the territory where theylive. So, they have few legal means to stop irre-versible changes, such as water transfers anddam-building(7).

The formation of watershed councils is a recentlegal provision (started 11 years ago), that isweakly and erratically implemented, and entailsno change in the management scheme character-ized by decision-making that is concentrated inthe hands of federal administrators, who actwithout disclosing information or consultingwith affected parties.

In some international forums, Mexico has beenrecognized for having managed, in such a shorttime, to organize watershed councils coveringpractically the whole country. However, manyindependent voices in Mexico have pointed outthat these councils are generally not very legiti-mately representative, because their member-ship depends on the corporate legacy and politi-cal clienteles of the regime that has dominatedMexico for the last 70 years.

Mexico’s watershed councils have been set upand operate with mistakes that cripple theirlegitimacy and prevent them from operating asbodies truly representing the diverse groups withinterests in water administration. Under suchconditions, democratic water management ispending. The challenge will be to construct formsof management that include the country’sindigenous population in decision-making.

Impacts of watermanagement on indigenous peoplesThere are many areas in which indigenous peo-ple have difficulty exercising their water rights.Water supply for human use is a basic right butfacilities are sorely lacking in rural localities.According to official estimates, 42% of indige-nous homes in Mexico did not have piped watersupply in the year 2000, and 70% had no sanita-tion service(8). This partly explains the resurgence

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of diseases such as cholera, and the persistence oftyphoid in these regions.

Mexico still has high rates of infectious diseases,especially in rural areas, transmitted in associationwith lack of water or use of contaminated water.Governmental programs to address this situationare feeble, short-sighted and poorly implemented.

Paradoxically, there are plans to transfer waterfrom rural regions to the large cities, without anythought to the minimal investments required toimprove local supply for human use. This is thecase for a project to transfer water from theupper Balsas river basin to Mexico City. In somecases, small rural and indigenous communitiesnegotiate so that, in exchange for turning theirsprings over for a city’s use, they at least get awater distribution system of their own.

Another area of conflict is the contamination ofwater resources used by indigenous peoples. Anextreme case of this is the irrigation of theMezquital valley with sewage from Mexico City.That region, inhabited by rural and Otomíindigenous communities, has, for a century,received most of the sewage from the capital city.The benefits that the inhabitants obtain by irri-gating their crops cannot be compared with thehealth risks of using polluted water (Peña, 1999).Mexico has a tremendous backlog in terms ofsewage treatment, and the indigenous regionsare among the furthest behind in this regard.

One of the most important aspects, because itseffects are so extensive in time and space, isforced relocation of indigenous and rural popu-lation to make way for big dams for irrigation orhydropower.

The most dramatic example of this policy, andperhaps the best documented, happened in thePapaloapan river basin on the Tehuantepec isth-mus, with the building of the Miguel Alemándam (9.106 billion cubic metres capacity) andCerro de Oro dam (4.4 billion m3). The former isfor hydropower and flood control and the latterfor irrigation and power.

In the early 1950s, the Papaloapan Commissionstarted plans to build in the river basin. For theMiguel Alemán dam, 500 km2 of the Mazatec

people’s land was used, just over one fifth oftheir total land area. Twenty thousand peasantswere evicted from their homes. Although thedam was finished in 1955, it was not until 1962that all the displaced persons had been re-housed (Barabas and Bartolomé, 1973; Boege,1988; Nigh and Rodríguez, 1995).

Since many native peoples resisted eviction fromtheir land, the government created the TemascalIndigenous Co-ordinating Centre in 1954, to talkthe affected Mazatecs into relocating. The maintask of the National Indigenous Institute was tocope with the contingencies of organizing newvillages. Twenty years later, there was anothermassive relocation of indigenous people, withthe Cerro de Oro dam, south-east of the former.This time, the persons displaced were mainlyChantec.

In the case of Cerro de Oro, the indigenous per-sons expelled were sent to settle in the tropicalrain forest, which had been cleared for irrigatedfarming. Some 13,000 Chinantecs displaced bythe dam were taken to Uxpanapa, which washurriedly made into an irrigation district, with aninvestment of US$50 million borrowed from theInter-American Development Bank (IDB).

It took years for both the Mazatecs and theChinantecs to rebuild the community bonds thatwere wrenched apart after they were drivenfrom their land. They lost day-to-day communica-tion with most of their relatives and formerneighbours; they were also deprived of essentialsymbols of identity, such as sacred places and thegraves of their predecessors. The police removedfamilies who refused to leave.

They soon found that the land in the jungle wasno good for rice and pasture monoculture. In afew years, the fragile soils were depleted, andcattle finished the degradation of the land thathad once been rain forest (Toledo, 1984). Thegovernment’s commitment to offer better livingconditions to the displaced persons was neverkept. Fifty percent of the new localities had nobasic public services, and support for training andinvestment in farming was not consistent, either.

The Miguel Alemán and Cerro de Oro dams serveas examples of how not to proceed, if one

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intends to respect and protect indigenous peo-ples’ rights. Indigenous peoples were simplynever taken into account in these decisions.

Forced resettlement of indigenous peoples inorder to build reservoirs is one of the most sensi-tive issues in Mexico. Therefore, there has beenparticular concern about the Fox government’sreactivation of plans to build a system of dams inthe Usumacinta river basin, along the borderwith Guatemala. The most important of thesewill be the Boca del Cerro dam, a bi-nationalproject by Mexico and Guatemala, under thePuebla Panama Plan driven by Fox.

The Usumacinta river valley covers the upperregion of Chiapas, the Lacandona jungle andpart of the State of Tabasco in Mexico and thedepartments of El Quiché, Verapaz and El Peténin Guatemala. Clearly, these are indigenous terri-tories. In Chiapas, most municipalities have pop-ulation that are 40% or more indigenous. TheUsumacinta basin is a region with great biologi-cal and cultural diversity. Many archaeologicalsites of the Maya culture are located there, as aremajor petroleum reservoirs.

The Federal Electricity Commission plans to buildthe Boca del Cerro project 9.5 kilometres south-west of the city of Tenosique, in Tabasco. The dam,135 metres high, would be on the Mexican side,damming 30.5 billion m3 of water. Half would bein Guatemala and half in Mexico, although 65% ofthe water would come from Guatemalan tributar-ies (México Tercer Milenio, 2003).

Promoters of the plan project a flooded area of645 km2, of which 530 km2 are in Mexico and 115km2 in Guatemala, that will generate 17.4 billionkilowatt-hours of electricity. They claim thispower plant will save fuel (29 million barrels offuel oil per year) and help power the economicgrowth of Mexico and its neighbours.

The Boca del Cerro dam is part of a plan for majortransformations in the water regime of theUsumacinta basin. This includes the Balancánbypass canal that will transfer water from theriver to Términos Lake and generate another1.25 billion kilowatt-hours.

By building the Salto del Agua dam and a size-

able drainage system, the federal governmentplans to irrigate 1.5 million ha. for crops, cattleranching and aquaculture.

In June 2002, a Tabasco newspaper published theMemorandum for Electrical Co-operation withCentral America that Fox had signed a few daysearlier. Some weeks later, the same newspaperpublished part of the project(9). The director ofthe Federal Electricity Commission confirmedthat the dam would be built, stating that itwould not be a high dam, but lower, to reducethe area flooded. However, as of October 2003,the authorities had offered no complete infor-mation on the plans they intend to implement(10).

Non-governmental organizations, indigenous andenvironmental organizations, intellectuals andartists have criticized the project severely(11). Theypoint to the negative impact that the dam wouldhave on indigenous and rural population groups,who would be displaced from the area to beflooded. According to moderate calculations,30,000 to 50,000 persons would have to leave theirhomes and crops, meaning an exodus comparableto the Cerro de Oro and Miguel Alemán dams(12).

Experience with previous cases would indicatethat the displaced indigenous and small farmerfamilies would not be relocated in better condi-tions but, on the contrary, would face an evenmore precarious future.

Dams also jeopardize the cultural heritage ofindigenous peoples, threatening archaeologicalsites of the Mayan culture, such as Yaxchilán inChiapas and Piedras Negras in El Petén,Guatemala. The region’s biodiversity is alsothreatened. Ecological niches of numerous plantand animal species would be drowned beneaththe flood water, whereas wetlands would bedried up elsewhere, as in the Centla swamps.

The coalition of agencies and individuals oppos-ing the project, which actively involves severalindigenous organizations and municipal govern-ments, has denounced the powerful economicinterests involved. Reactivation of the plan tobuild the system of dams on the Usumacinta coin-cides with President Fox’s insistence on amendingthe National Constitution to enable privateinvestment in the power sector, especially by

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trans-national companies such as Enron, whichwould have an excellent platform to sell electric-ity to Central America.

Large construction companies with strong ties tofederal administration – which is often accused ofcorrupt contract procedures – are also interestedin the projects. It is estimated that the Boca delCerro dam would cost US$5 billion, a major dealfor builders.

Government plans under way and the citizenmovements opposing these dams pose a chal-lenge for the watershed council. Does this bodyactually exist, and represent the constituency?Could it operate as a forum for information andconsultation with the affected parties?Apparently not. Criticism by citizens’ bodies andrebuttals by authorities have all circulated inde-pendently of the council that should, by law, bethe main body for information, consultation andconsensus-building. In particular, indigenous andrural organizations of the zone that have spokenup are being ignored. The federal government isresponding as its predecessors have.

ConclusionsIn Mexico, respect for indigenous peoples’ waterrights and their involvement in water manage-ment are still pending issues. Despite the impor-tance that native communities have and couldhave in watershed conservation, the key area forwater resource conservation, indigenous voicesremain faint in management bodies.

Representation in watershed councils is designedand applied in such a way that it neglects indige-nous peoples and jeopardizes their interests inwater management, especially regarding theprotection of community territories and themanagement of unassigned water resources.Water management and its interrelations withthe conservation of biodiversity and cultural her-itage are issues of great interest to indigenouspeoples. Their multi-faceted uses cannot bereduced to user categories, such as agricultural orurban.

A major hurdle for indigenous peoples is theweak and indirect nature of legal recourse toclaim rights over territory. With the government’sfailure to comply with the San Andrés agree-ments, indigenous communities are forced toseek, in environmental and other laws, somefoothold to curb the water-related changes thatthreaten them. In addition to weak legalrecourse, they are also socially at a disadvantagein confrontations with powerful economicinterests, such as those pushing to buildhydropower dams.

To guarantee respect for indigenous waterrights, including not destroying their livelihoods,it will be necessary to work in three directions:insistence on adopting a legal framework thatfully recognizes indigenous peoples’ rights; inclu-sion of legitimate indigenous representatives onwater management bodies, in territories wherethey live; and formation of social coalitions toamplify the voice of citizens such as indigenouspeoples who are generally at a disadvantage vis-à-vis more powerful financial interests.

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ENDNOTES (1) The indigenous presence in Mexico goes beyond groupsspeaking the American languages, and is found as well inthe customs and lifestyles of Mexico’s rural communities(Bonfil, 1987). Moreover, indigenous and non-indigenouslive together in many communities, and decision-makinginvolves all of them, through community institutions. Forthis reason, this paper always refers to indigenous peoplesand rural communities.

(2) The most important outcome of San Andrés, theindigenous law initiative drafted by a plural commission oflegislators, did not pass Congress. Representatives ofPresident Fox’s party (Partido Acción Nacional) activelyworked to change the terms of the agreed draft law, whichthe President had promised to promote.

(3) Emphasizing this issue and contributing to buildingproposals for respecting indigenous water rights is one ofthe fundamental goals of the Water Law and IndigenousRights (WALIR) program, pursuing research, disseminationand collaboration with indigenous organizations in variouscountries of the Americas. Boelens, 2002.

(4) In Mexico, as elsewhere, there is debate about the bestway to identify the existing indigenous population. Incensuses, the language criterion has been used. TheNational Indigenous Studies Institute made an overallestimate of 12,707,000 indigenous (year 2000). For moredata, see Serrano, et al., 2002.

(5) At present, a process is under way to amend the NationalWater Law. Changes approved by Congress were sent back byPresident Fox, with a series of observations to be considered.

(6) In the last three years, watershed councils have begunincluding representatives of ‘environmental use’ of water. Thisapproach is designed to keep the vision fragmented, as if alake or estuary were also ‘a user’. Representation is alsogenerally assigned to environmental groups, withoutconsidering that municipal authorities or indigenousorganization leaders in some watersheds might have a strongerinterest in integrated water management in a given territory.

(7) Facing similar cases, indigenous communities may seeksupport from the country’s environmental laws, which offerloopholes to argue the non-sustainability of projects that areto be implemented. There is also a little room for municipalauthorities to intervene to change some plans. Theseprocedures depend on an environmental impact assessment,which has proven to be a controversial instrument, readilymanipulated by the companies that present them.

(8) Having piped water does not mean having safe water. Inrural areas, as in many cities of Mexico, maintain the qualityof drinking water continues to be a major challenge.

(9) See Tabasco Hoy, 30 June and 10 August 2002. Theinformation was also published in other newspapers, New York Times, 22 September 2002.

(10) The National Water Commission has not published thedetails on the whole project, although it has been reportedthat the Federal Electricity Commission began work inMarch of this year.

(11) March 2002, declaration of the Central American Forumagainst Dams.

(12) Others claim that the numbers of displaced persons maytotal a million, by the time the project is completed, with allits facets. (Tabasco Hoy, 26 January 2003).

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REFERENCE LISTAboites Luis, 1998, El agua de la nación. Una historia políticade México (1888-1946). CIESAS, Mexico City.

Barabas Alicia and Bartolomé Miguel, 1973, Hydraulicdevelopment and ethnocide. The Mazatec and Chinantecpeople of Oaxaca. International Workgroup for IndigenousAffairs 15, Copenhagen.

Boege Eckart, 1988, Los mazatecos ante la nación.Contradicciones de la identidad étnica en el México actual.Siglo XXI, Mexico City.

Boelens Rutgerd, 2002, Water Law and Indigenous Rights:Research, Action and Debate. WALIR Studies, Vol. 2,Wageningen University / IWE and United Nations/ECLAC,Wageningen.

Bonfil Guillermo, 1987, México profundo: una civilizaciónnegada. CIESAS/SEP, Mexico City.

Carabias Julia, Provencio Enrique and Toledo Carlos, 1994,Manejo de recursos naturales y pobreza rural. UNAM-FCE,Mexico City.

Chapela Gonzalo, 1995, Aprovechamiento de los recursosforestales en la Sierra Purépecha. UAM, Mexico City.

Gelles Paul, 2002, Andean Culture, Peasant Communitiesand Indigenous Identity. WALIR Studies, Vol. 2, WageningenUniversity / IWE and United Nations/ECLAC, Wageningen.

Gentes Ingo, 2002, Water Law and Indigenous Rights in theAndean Countries: conceptual elements. WALIR Studies, Vol. 2, Wageningen University / IWE and UnitedNations/ECLAC, Wageningen.

Guevara-Gil Armando et al., 2002, Water Legislation andIndigenous Water Management in Peru. WALIR Studies, Vol. 2, Wageningen University / IWE and UnitedNations/ECLAC, Wageningen.

Merino Leticia (co-ordinator), 1997, El manejo forestalcomunitario en México y sus perspectivas de sustentabilidad.UNAM, SEMARNAP, WRI,CMS, Mexico City.

México Tercer Milenio, 2003, www.mexicotm.com

Nigh Ronald and Nemesio J Rodríguez, 1995, Territoriosviolados. INI-CNCA, Mexico City.

Peña Francisco, 1999, La esperanza en las aguas de desecho,Construcción de una región irrigada en el valle delMezquital. Frontera Interior, social science and humanitiesjournal, No 3-4, INAH-University of Querétaro, Querétaro.

Sánchez Martín, 1993, La herencia del pasado. Lacentralización de los recursos acuíferos durante el porfiriato1888-1910. Relaciones. Estudios de Historia y Sociedad, No 54, El Colegio de Michoacán, Zamora.

Serrano Enrique, Embriz Arnulfo and Fernández Patricia (co-ordinators), 2002, Indicadores socioeconómicos de lospueblos indígenas de México, 2002, INI, United NationsDevelopment Programme, CONAPO, Mexico City.

Toledo Alejandro, 1984, Cómo destruir el paraíso: el desastreecológico del sureste. Océano-Cecodes, Mexico City.

Toledo Víctor and Argueta Arturo, 1992, Cultura indígena yecología. Plan Pátzcuaro 2000, Friedrich Ebert Foundation,Mexico City.

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This paper studies the bodies of law drafted by the Ecuadorianindigenous movement to enforce their collective rights, in the context oftheir own political intentions. It hypothesizes that this movement isattempting to synthesize a complex of normative frameworks fromdifferent indigenous nationalities and peoples into a codified norm, toharmonize their viable operation with the system of national laws, as anattempt to achieve juridical pluralism, as guaranteed by the nationalConstitution. In this context, three proposed laws, one proposal for communityregulations and one presidential decree are analysed (the latter issuedon the basis of a prior proposal by the movement). The central theme forthis analysis is the water management model proposed by indigenousnationalities and peoples for Ecuador. The idea here is to present an overview of what is being achieved undera model of juridical pluralism, in a country governed by positive law,through the vision and efforts of one of the most significant social-sector stakeholder movements in the Americas.

Paulina Palacios is an attorney, researcher and co-ordinator of the WALIR programme in Ecuador(Water Law and Indigenous Rights, University of Wageningen – Netherlands /CEPAL/ECLAC) andconsultant in the areas of environmental rights, water and gender, for international co-operationagencies and indigenous organizations of Ecuador.

[email protected]

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Introduction

In countries of the Andean region governmentshave chosen different ways to incorporate normsrecognizing their pluri-ethnic composition intothe legal framework – through laws or nationalConstitutions. Likewise, with the exception ofChile, legislation addresses norms for relationswithin indigenous, original inhabitant or ruralcommunities. As for natural resource manage-ment by indigenous peoples, the region’snational constitutions (again, excepting Chile’s)grant relatively broad authority over the areasthey have traditionally inhabited(1).

This study has taken as its frame of reference• the rights acquired by indigenous peoples inAndean national Constitutions regarding,very broadly speaking, the concept of juridicalplurality, • and natural resource management, includingwater.

For customary law, I will limit discussion of theframe of reference to key concepts regardingjuridical plurality, indigenous and /or customarylaw. The intention is not to address the concep-tual issue in extenso but rather to examineEcuador’s specific case.

In Ecuador, a legal framework that features juridi-cal plurality, such as in water management, hasmaterialized through actions pursued by theEcuadorian indigenous movement.

This paper aims to describe what has become aninteresting case of ‘positive-isation’ of customarylaw – or rather, of (general notions) in such aninter-ethnic complex as Ecuador’s. This movementhas led to harmonization enabling Ecuador’sindigenous peoples to apply the juridical pluralityguaranteed by Article 191 of the nationalConstitution, without relinquishing their ownconceptual and ethical framework.

Accordingly, the indigenous movement proposesfull exercise of community and/or peoples’ formsof social management of water in their territories.The cases discussed in this study are proposedbodies of law that have been prepared using dif-fering modalities, with ample involvement of dele-

gates from indigenous nationalities and peoples.The draft laws have been presented to theNational Congress for legislative approval. Themodel community by-laws have actually become amodel for several communities in Imbaburaprovince (northern Ecuador), Otavalo and CayambiKichwas. Also included is an executive decree,issued by the President and therefore a nationaljuridical norm. This makes it the only proposal ofthe indigenous movement that has been enacted.

We will not attempt to present an exhaustiverange of legislative proposals drafted by theindigenous movement, but only to address thosethat have made the effort to manage publicwater on the basis of the civilizing heritage ofindigenous rights or normative systems.

Ecuador: a diverse, pluri-cultural country

In Ecuador, the indigenous peoples identifythemselves as nationalities and peoples. Thereare 13 indigenous nationalities, and 18 peopleswithin the Kichwa nationality(2). There are severalgovernment institutions that respond todemands for inter-culturality and indigenousparticipation, as well as indigenous representa-tion in a number of other state institutionsaddressing a range of issues. The Confederationof Indigenous Nationalities of Ecuador (CONAIE)has drawn indigenous nationalities and peoplestogether since 1986, as the visible leadership ofthe Ecuadorian indigenous movement.

In 1990, CONAIE inaugurated the Ecuadorianindigenous movement politically and socially, bya massive national uprising for Inti Raymi (thesolstice ‘sun festival’), demanding resolution ofland conflicts and reforms to make the Statepluri-national. Since then, CONAIE has played aleading role as a social and political movementthat has made it possible to revisit the concept ofthe State, and other elements of cultural short-sightedness that kept indigenous people under-privileged and out of sight. In 1992, the Marchfor Life made demands regarding indigenousterritory in the Amazon region. This revealed the

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complexity of a social fabric tightly interwovenwith indigenous interests, including particularclaims to manage their ancestral territories.

By 1994, the National Congress had enacted anAgrarian Development Law that reversed theagrarian reform process. Despite serious draw-backs, this process had provided a way for indige-nous and other rural folk to own their commu-nity and family land. Ecuador’s indigenous andrural organizations held a second major uprisingto advocate an integrated, democratic approachto agricultural development. The protest stirredup such strong feelings that the President had toveto the law. This curbed, for the time being,norms that would have privatised water.

In 1996, CONAIE decided to take part in represen-tative democracy, setting up the PachakutikNuevo País Pluri-National Unity Movement, forthat year’s local, provincial and even (throughalliances) presidential elections. In the 1996national elections, eight senators elected underthis new party’s banner voted as a block. Thisgave rise to legislative discussion about indige-nous peoples’ rights, within a setting of demo-cratic, progressive proposals.

In 1998, after President Abdalá Bucaram wasousted with the active participation of CONAIE,the Confederation pushed for the NationalConstitutional Assembly, with a pluralistic sum-mons to all societal and citizens’ sectors, to createan unprecedented, participatory, inclusive, dem-ocratic constitution. By the end of that year, theproposal turned into reality, and the Assemblywas held, with several indigenous leaders, bothmale and female, as Assembly members. Undercollective rights, this new Constitution specifies anumber of the demands raised in the indigenousmovement’s struggles.

Customary law concerningaccess to and use of water:ancestral practices, uses andtraditional customs

Conceptual considerations In the Andean countries, such as Ecuador, ‘positivelaw’ is, in effect, pursuant to the juridical normsestablished by the government. This approach isincorporated in the national Constitution, therebyexcluding other approaches and norms. Althoughthe assumption is that positive law is the only possi-ble way to set up a State, the EcuadorianConstitution (CPE: 1998, article 191)(3) also providesfor juridical plurality, by accepting the enforcementof customary law among indigenous peoples.

Customary law comprises the norms based onthe dynamic cultures of indigenous peoples,regulating and providing order for them. Thesenorms for behaviour, morality, and social conductare often difficult to classify into thematic cate-gories, such as ‘indigenous criminal law’, or‘indigenous water law’, etc. They are more likeregulations, perspectives, moralities and preceptsthat organize life in communities and othergrassroots organizations within indigenousnationalities and peoples.

Various disciplines discussing juridical pluralismexpress the concern that customary law must belegally established and defended. In Ecuador, theindigenous movement has attempted to summa-rize values, morality and norms, in an attemptcollectively to draft laws with normative validityunder written, positive law. This has meantinserting their own normative way of thinkinginto Ecuador’s juridical norms.

Central issueThe Ecuadorian indigenous movement bringstogether a diverse range of normative frame-works from different indigenous nationalitiesand peoples regarding water management. Thisis the basis for proposing a normative model foroverall participatory management of society,transforming customary law into positive-lawbuilding, and into bodies of law that summarizewhat juridical pluralism ‘should be’.

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Although customary law is the aggregate of localnorms governing particular societies, theEcuadorian indigenous movement has under-taken the task – with direct participation byindigenous peoples – of ‘positive-izing’ thesenorms. It has taken several years’ work to producebodies of law specifically for water managementthat are informed by the indigenous movement’sdemands. The Ecuadorian indigenous movementhas synthesized positive law and customary-lawnorms, exemplifying the historical and legalviability of juridical pluralism.

Indigenous grassroots communities and organi-zations are regulated by normative frameworks,tied to local cultures. The local norms resolve con-flicts in water management processes as collec-tive efforts to return to or maintain order.

The Ecuadorian indigenous movement has man-aged to synthesize written, codified positive lawwith indigenous or customary law, which is usuallyoral and tradition-based. The bodies of lawprepared collectively by this societal and politicalstakeholder draw upon the indigenous peoples’common practices, notions and values to resolveconflicts, to share water on a consensus basis,distribute responsibilities, politically organizetheir local mechanisms, traditional and /or legiti-mate authorities, and handle their water units orecosystems holistically.

This study will use the terms ‘customary law’,‘norms’, ‘normative frameworks’ and ‘localindigenous norms’ interchangeably, to denotethe set of customs gathered by the Ecuadorianindigenous movement into the bodies of lawanalysed here. We will not discuss terminologyand concepts here, as they are beyond the scopeof this study, albeit a rich topic.

Finally, the collected water management normsentail social participation and the search forequity, which is something of an expandedhypothesis. The model, derived from a criticalreading of documents in Ecuador, entails anintegrated, participatory perspective for sharedmanagement, or co-management, with govern-mental agencies. It nevertheless maintainsstrong awareness of the concepts of territory,nationalities, peoples, and autonomy or self-determination by peoples through their actions

and rights. This proposal obviously refers to theframe of reference that would be institution-alised; it is not an empirical analysis of currentrelationships or values prevailing in present-daypractice – whether equitable or not – withinAndean communities and indigenous peoples.

Bodies of law composed by the Ecuadorian indigenousmovement

In Ecuador, the indigenous movement has man-aged to influence lawmaking significantly, as ahigh-profile political stakeholder. This includesthe lengthy process of ratifying the InternationalLabour Organization (ILO) Convention 169 onIndigenous and Tribal Peoples in IndependentCountries and the collective rights guaranteed inthe national Constitution, which CONAIE activelypromoted.

These processes are significant, and it is worth-while to underscore the efforts that Ecuador’sindigenous peoples have made to further collec-tive legislation. In this study, I will refer to severalbodies of law that have been proposed by theEcuadorian indigenous movement, analysing:

• the Law of Indigenous Nationalities andPeoples,• the Law on Water,• the Law on Indigenous and RuralCommunities of Ecuador,• the Otavalo Model Regulations, and• the Programme for Irrigation and Recoveryof Degraded Land.

These proposed norms have been selected, firstfrom among the laws that the indigenous move-ment has prepared collectively; second, in termsof the jurisdictional level at which they havebeen proposed (from national to local); and thirdin order to provide an overview of the indigenouspeoples’ political and normative vision for thiscountry. The last body of law will be reviewed asa special case, as the only indigenous movementproposal that has materialized into a positive-law norm, incorporated into Ecuadorian law. The

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documents reviewed here correspond (as will beexplained below) to different periods and aretherefore not necessarily related. Prior to indige-nous peoples seeing their rights recognized in1998, the Convention 169 and plurality stipu-lated by the Constitution were no more thanaspirations.

We will examine water management norms: ineach case, there is a close relationship betweenthe proposal itself, the customary-law vision oflawmaking, and participation in creating thenorms with the repercussions they could entail.

These proposed norms, which embody much ofthe indigenous peoples’ normative and ethicalculture, could become a bridge, challenging thedivide between the nation’s positive law andindigenous normative frameworks.

Law on indigenous peoples(4)

It took several years of meetings, workshops,seminars and even academic discussions to draftthe proposed law on indigenous nationalities andpeoples. The national Constitution guarantees abody of collective rights for peoples “who definethemselves as nationalities with ancestral roots”(CPE, 1998, art. 83). Pursuant to this constitutionalnorm, with the need for a legal frameworkenabling them to exercise these collective rights,CONAIE pressured for the enactment of this law.It was presented to the National Congress in theversion studied here, and passed. However, thePresident vetoed it because of disagreementsregarding certain formalities and legal techni-calities, so it remained suspended.

The draft law very specifically conceptualises theindigenous peoples as holders of collective rights.It also conceptualises the legitimate authoritiesof these rights-holders, their own forms ofgovernance, different sorts of organization withinethnic structures, juridical plurality, territory,natural resources, biodiversity, customary law,consultation, integrated management of indige-nous properties and / or territories, governmentinstitutions, maintenance and development ofindigenous cultures, and promotion of indige-nous lore and science.

This proposal would become a framework ororganizational law for the body of collectiverights assured for indigenous peoples by theEcuadorian Constitution and the ILO Convention169. It was drafted following both these norma-tive instruments, and after CONAIE proposed theWater Law.

The norms that the proposed law on indigenouspeoples establishes for water managementalways mention the collective rights-holder, themaintenance of political autonomy for this rights-holder, their authorities and the administration oftheir territory.

Specifically, it addresses the issue of legitimateauthorities over natural resources, as well asjurisdictional powers, administration of justice,legal status and administrative /para-State status(Article 10).

Regarding natural resources (which severalarticles understand as including water) the lawestablishes the peoples’ and nationalities’ fullrights over them, as part of indigenous territory(Article 19). It also proposes consultation for allplanning, programmes and projects forprospecting, exploration, or extraction of renew-able and non-renewable natural resourceslocated in indigenous territories or related totheir development (Article 24). Such consultationmust submit proper, complete information toindigenous authorities, as well as exhaustivelyanalysing the future effects that such projectscould have. Another point involves participationin benefits yielded by projects implemented inindigenous territories or by lands possessedancestrally by these rights-holders (Article 28).Then it proposes a guarantee that all projectsinvolving natural resources be subject to envi-ronmental, socio-cultural and economic impactstudies, as well as measures to repair theseresources and /or indemnify peoples and nation-alities for expected damages (Article 33).

Regarding government institutions, it proposesdirect involvement by indigenous nationalitiesand peoples in government agencies that makepolicies on, among other topics, natural resourcesand biological diversity (Article 39). These agen-cies include the National Water Resource Council(CNRH), Ecuador’s top governmental agency for

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freshwater management and control (Article 40).Since Ecuador’s legal framework stipulates thatthe State must be decentralized, this proposedlaw provides for full, direct involvement ofindigenous nationalities and peoples in projectpreparation and implementation of servicesincluding water supply (Article 47). To administerservices, responsibility for indigenous nationalitiesand peoples is regulated in co-ordination withlocal or sub-national government (Article 50).Moreover, the law provides for forming commu-nity or self-managed enterprises to administerbasic services (Article 51).

Law on waterThis proposal was drafted in the context of pri-vatising trends that seemed inevitable asEcuador’s water management model. In 1996, theindigenous movement had not yet concretelyentered Ecuadorian representative democracy,nor had the National Constitutional Assembly –summoned by CONAIE to ‘re-found the State’ –been held yet. This draft law was presented by ablock of indigenous and non-indigenous mem-bers of Congress belonging to Pachakutik, andCongress has yet to deal with it. In fact, since thisproposal, different productive, political and evenacademic sectors have submitted another 14 pro-posed water laws to the Legislature.

The proposal covers a diverse range of issuesregarding water regulation, both those con-tained in the current law(5), and new areas relatedto sacred waters, financing of indigenous andrural irrigation, community management, andcrimes against water resources.

Several areas are covered in the proposal’s mainthemes:

• water is public property, as is theconcession of water for all uses;• integrated, sustainable use of ecosystemsand water;• support for indigenous and small farmerirrigation;• domestic food-supply security, based onindigenous-smallholder agrarian economies;• the cultural perspective of indigenous andother rural peoples, including ways to usesacred water;• community management and participatory

societal management for genuinedemocratisation of natural resource use “we always link the social function withparticipatory social management…”;• creation of the National Irrigation Fund,along with autonomy for agenciesmanaging water resources.

The first comment involves the vastness of thegoals and therefore the norms proposed by thislaw. Secondly, there is a duplication of norms forcertain areas, that the constitutional norm estab-lishes as rights (for example, respect for, recogni-tion and management of sacred places) that thepeoples must legislate for, if not already part ofother laws proposed in the last few years (e.g.indigenous administration of justice, theIrrigation Programme, etc.) by CONAIE itself.

The proposal is not very clear institutionally or interms of jurisdiction. It also emphasizes manage-ment of all water issues at the local level; in thecases of indigenous peoples and rural populationgroups, it always mentions community manage-ment. These local levels of society must also par-ticipate directly in managing water within theirterritories or areas of influence. Accordingly,there is a chapter ranking priorities for water use,considering the type of access, the grantee of theusage (individual or collective), and the purposefor which the water will be used, including thesocial benefit of domestic food security.

The water law proposed by CONAIE would createa National Fund for Irrigation, Training, Protectionand Water Resource Management, to finance:

• construction and repair of indigenous,rural and Afro-Ecuadorian irrigation systems, • studies, designs and construction ofprojects to optimise water utilisation, • sustainable, integrated watershedmanagement, • training, • maintenance regarding polluted waterand sewage, and • research.

This fund would be administered by thegovernment water authority (i.e. the NationalWater Resource Council, CNRH) and the top-priority beneficiaries would be indigenous,smallholder and Afro-Ecuadorian communities.

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In this regard, the CONAIE proposal contains sev-eral elements:

• the need for the State to provide fundingfor indigenous and peasant irrigation; • that beneficiaries must always includeindigenous, small-farmers and Afro-Ecuadorians, to materialize inter-culturalityand the will to provide an alternative for allEcuadorian men and women; • the proposal to create the fund, in the waterlaw, embodies the Ecuadorian indigenousmovement’s ‘model’ for participatory,intercultural, equitable water management.

This topic of the Fund is interesting: in the year2000 it was included on the agenda for the dia-logue with the government of (ousted President)Jamil Mahuad. The indigenous movement per-suaded the successor (the Vice President whotook over the presidency) to issue a presidentialdecree, creating the National Programme forIrrigation and Recovery of Degraded Land, withan initial fund for several of the objectivesalready outlined in CONAIE’s 1996 water law pro-posal. The initial proposal and the way it materi-alized are compared below.

Law on indigenous and peasantcommunities of EcuadorThe Ecuadorian indigenous movement remainsstrongly committed to what it terms its ‘communitybase’ or culture, especially among inter-Andean(highlands) or Kichwa peoples. It was, in fact, thehighlands organization, called at that time theConfederation of Peoples of the KichwaNationality of Ecuador (Ecuarunari), a fourth-tierregional organization belonging to CONAIE, thatcollectively drafted a proposed law on communi-ties. This proposal had several aims (Ulcango,1998): to materialize general norms for ancestralcommunities; to create legal norms recognizingthe constitutional rights that indigenous peopleshad just been incorporated into the nationalConstitution; and to help ‘reconstitute’ theKichwa nationality, which is a main thrust ofEcuarunari.

The communities law is based on an idealizedapproach to the concept of communities, “as agroup of families that base their lifestyle on col-lective practise of reciprocity, solidarity and

equality, grounded in community modes of pro-duction (mingas) in which all members take part”(Article 1). The proposal attempts to include anyorganization with these internal mechanisms,and to establish the procedure for legalizationand development.

It is interesting to note that ‘autonomy’ is con-ceived as the right of all communities to conserveand reinforce their own political, economic,social, cultural and legal characteristics, as well asdirect participation in all projects, planning anddevelopment efforts affecting the community.Article 5 also includes community jurisdiction foradministration of justice.

Article 6 covers the purposes and operation ofcommunities: “To govern access to the use of landand other renewable and non-renewable naturalresources belonging to their territory for thosebelonging to the community and others.” Thisapproach would view the ecosystem as a whole(with respect to the territory) as a unit of landwith all its natural resources. However, above all,there is the community purpose of ‘governing’access to these elements of their territory,thereby including a perspective of self-determi-nation. This article also proposes: (subsections band c) direct action for development; (d) regulat-ing work; (e, f and g) also governing agricultural,livestock and forest production, includingcadastral records; and (h and i) conservation andregulation of cultural and educational rights.

This makes the community the core of indigenouspeoples’ lives, providing them with autonomy,outlining a concept of community territory,characterizing the community as the collectiverights-holder and accordingly the authority toadminister, represent and govern free self-determination in the issues under its jurisdiction,including the right to be included in consultation.

Articles 17, 19 and 24 propose that communitiesdirectly and legally manage water and other nat-ural resources in their habitat. This managementis by the community, and entails (in this proposedlaw):

• active, equitable participation by allmembers (male and female);• sustainability as an active principle;• development of ancestral knowledge; and

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•water management according to local andcustomary rights.

In this last area, the synthesis examined in thisstudy (between positive law and community law)is achieved: communities, interacting with vari-ous socio-legal repertoires, administer justice andregulate / govern all walks of community life. Iwould like to emphasize that codifying commu-nity law does not generate a ‘static, essentialindigenous law’. The indigenous organization’slawmaking work envisions the possibility for thenorms to be applied, maintaining local traditionsand customs, also alluding to the present-daydynamics of indigenous cultures.

This proposed law also regulates other issuesinvolving agricultural development, credit, pro-duction, marketing, and training in production-related activities, as part of the State’s responsi-bility for community development.

In other sections, it regulates identity, culture,education, health and collective intellectualproperty, maintaining the paradigm that thecommunity holds these rights and that, withinthe community, individuals can enjoy anddevelop them.

Otavalo model regulationsThis body of law was made by members of differ-ent communities around Otavalo, with ongoingco-ordination by Ecuarunari, as a regional organ-ization, at the time when the latter was prepar-ing its proposed law on communities (1998).These regulations attempt to include collectiverights and to create the law, according to LuisFernando Tocagón, the indigenous leader whoprovided a copy for this study. The present chap-ter is an overall review of these regulations,because the text constantly refers to an overallvision. That is, many articles refer to naturaland/or water resource management, and partici-pation is a cross-cutting theme.

The text agrees with the concept of a community,its aims, purposes, and certain expressions foundin the proposed law on communities. It is also anexample of local norms, for the Kichwa peoplearound Otavalo and Cayambe, attempting tocreate a model for participating communities. It is

interesting that the co-ordination with Ecuarunariand the process of preparing these regulations,with delegates from various communities,attempted to avoid infringing on norms, and toincorporate the constitutional progress, inrecognition of the indigenous movement as awhole.

The regulations were drafted for a particularcommunity, and therefore develop norms forprotecting and managing natural resources ingeneral, but also specify their local gullies,springs, grasslands and forests. They also containthe community members’ individual rights, theobligation to reforest private property, environ-mental care, natural resource conservation andprohibitions and penalties.

Regarding water management, the sustainablemanagement approach is outlined in severalarticles, covering different elements of waterresources: sources, native forests, gullies, andreforestation. Furthermore, community-level par-ticipation involves community members directlyin managing community territory and land, andin decision-making, through assemblies. Thetraditional authority is the cabildo board.

An interesting element is the constant inclusionof a gender perspective in the wording of theregulations. There are several proactive measuresgeared towards achieving equity, particularly infavour of women, for example by including bothgenders in the wording. This emphasis mayreflect renewed outlooks among communityleaders that confirm how indigenous culturesand norms are dynamic and changing.

The chapter on penalties is also worth nothing.The foundations of non-indigenous criminal lawbear no direct relationship with this indigenousbody of norms. Failure to comply with the legaland community norms will be penalized by thecabildo. Article 43 sets forth the penalties in thefollowing order:

• private admonishment;• public admonishment;• temporary suspension of communitymembers’ rights; and• expulsion of the member from the community.

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The last two penalties must be ordered withapproval by the General Assembly. Article 44determines the behaviours that will be penal-ized, which may be classified as

• those that infringe on community co-existence; and• infractions against shared management ofthe community’s resources and services.

The preceding paragraph reveals an ethical per-spective and a concept of equity. The communityseeks to maintain order inwardly, with respectfor the community and its members, settingforth general treatment for all, and on a case-by-case basis. Communities governed by theseregulations and complying thoroughly withthem, would apparently enjoy significant order,maintaining the lives of their peoples, withintheir cultural and moral customs and practices.

The programme of irrigation andrecovery of degraded landSince 1996, the indigenous movement has beencalling for the creation of a fund to supportindigenous and smallholder irrigation, so thatthe government can fund those sectors that havenot received support, but which – according toCONAIE statistics – generate 60% of domesticfood supply security.

In the proposed Water Law, the indigenousmovement specifically defined the objectives forcreating the Fund. This demand went furtherthan presenting this proposal to the NationalCongress and, every time CONAIE has organizedrallies, it has been part of its ‘mandates’.

After CONAIE’s leading role in ousting thePresident of Ecuador, Mahuad, their mandatesagain included the creation of an Irrigation Fund.Discussions were a slow process that codified theCONAIE proposal into a presidential decreesigned by Mahuad’s successor, and entitledProgramme of Irrigation and Recovery ofDegraded Land.

This decree is the only body of law in this studythat has been proposed by the indigenous move-ment and that has been converted into law bythe Ecuadorian government.

The programme was created under the Ministryof Agriculture, to support irrigation in indigenousand peasant communities, along with recovery ofdegraded land (Article 1). Three indigenous andrural users’ and irrigators’ organization leaderssit on its board of directors, alongside three rep-resentatives from the government, and a repre-sentative of the large-scale agricultural produc-tion sector (Article 4). The objectives include thosethat CONAIE had presented to the government:

• Optimisation of water use;• Reactivation of small-farmer economies;• Employment creation;• Guaranteed domestic food supply;• Greater socio-economic stability in ruralzones; and• Harmonizing urban development byapplying sustainable, efficient managementof natural resources within the frameworkof family farming (Article 5).

Funding will be provided for sustainable, indige-nous and small-farmer irrigation projects, as wellas organization-building, training and inte-grated management of watersheds, micro-watersheds and sub-watersheds (Article 6). TheProgramme must be efficient, must directlyinvolve communities and irrigators’ organiza-tions, and guarantee participation by non-gov-ernmental agencies (Articles 7, 8 and 9).

This decree provided a vehicle for the indigenousdemand to fund the huge requirements for com-munity irrigation, while maintaining the goal ofstrengthening grassroots organizations so thatthey can directly manage the projects funded.This unique experience was a political landmarkfor the indigenous movement. But it also showedthe capacity for intercultural dialogue, as ameans to integrate demands for participation,direct organizational management and written,positive-law norms. These, in turn, would help tomake support for indigenous and peasant irriga-tion State policy.

As a final comment: the resources allocated inthis decree (2001) have not yet been delivered bythe government, which blames the fiscal reformthat Ecuador must undergo, pursuant to agree-ments with the International Monetary Fund. Inany event, the programme has not been imple-

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mented, although it is on the law books, and is arecurrent issue in mobilizations and demands bythe Ecuadorian indigenous movement.

ConclusionsIndigenous endeavours in Ecuador have workedtowards synthesizing customary law and positivelaw, along with local norms and organizationalmodels for integrated water management.Customary law, amidst a dynamic politicalprocess of mobilization, dialogue and collectivelawmaking, can in fact offer opportunities fordeveloping a pluri-cultural coexistence andjuridical plurality.

The Ecuadorian indigenous movement has beenproposing, for almost two decades now, the con-struction of a pluri-national State as a pathway tostructural political reform of the State. The col-lective effort appearing in the bodies of law thatwere prepared and proposed to Ecuadorian soci-ety and government show what this could mean.

There are a number of constraints and challengesfor the movement. First, Ecuador’s economic sys-tem is dependent upon the model implementedby the International Monetary Fund and multi-lateral development banks. Second, and as a con-sequence of the former, no resources are avail-able to implement such proposals, simple thoughthey may seem, because of this dependence.Third, there is a strong tendency to privatisewater management and environmental conser-vation, which emerges as proposals that arebased on swaps involving Ecuador’s foreign debtto multi-lateral banks. Fourth, the possibility ofenforcement, in a context of complex inter-eth-nic relations, remains to be seen.

Some final readings

This case can only provide us with conclusionsabout itself, and the process of the Ecuadorianindigenous movement. The purpose of describingand de-coding(6) the work done by the indigenousmovement is to design a legal framework thatcould harmonize their demands and rights undercustomary-law with prevailing reality and norms,and serve as an example. But it can not be anexclusive blueprint for such diverse realities asare found in the Americas, or even for the indige-nous peoples of the Americas.

It is noteworthy that this generation of concepts,policies and norms to achieve sustainable watermanagement has been democratic and partici-patory. It has also been a substantial elementin the development of Ecuador’s indigenouspeoples. This aim has always been present in thetestimonies we have gathered, in the drafting oftexts, and also in discussions that indigenousleaders have had as they became more and moremobilized.

This exercise of proposing laws that addressgeneral norms and ethical precepts, but whichalso embody the demands of the indigenouspeoples, could be seen as the capacity for synthe-sis that is required to build juridical plurality intothe Ecuadorian State.

Here, I must emphasize the efforts that havebeen made in Ecuador to draft the proposed lawscollectively among the indigenous peoples, in ageneral context of power relationships that haveusually excluded these stakeholders and seem todeny that any juridical practises or rights existbeyond the current governmental system.

Water management in practical, local reality hasshed light on many issues encountered in thelaws analysed here. This portrays a world that isnot ideal but intensely complex, with day-to-dayconflicts about water management at all levels,in all areas and localities. I would simply like topoint out that these lawmaking endeavoursaddress the deontology and therefore the idealof water management ethics. Furthermore, com-munities do achieve meaningful social control; forexample, community work and organizationalforms have enabled the indigenous peoples of

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Ecuador to maintain their culture and resistoppression. This does not, however, imply by anymeans that their community model is perfect.

Customary law is one way to deal with policy andlaw that, within the framework of respect for thenorms of indigenous cultures, can contribute tobuilding a more equitable country and ensuringsocial, sustainable management of naturalresources.

ENDNOTES (1) See also Appendix 1.

(2) CONAIE, Law on Indigenous Nationalities and Peoples, 2002.

(3) Article 191: The indigenous peoples’ authorities shallperform functions of justice, enforcing their own norms andprocedures to resolve internal conflicts pursuant to theircustoms or customary law, providing this is not contrary to theConstitution or the Law. The Law will make these functionscompatible with the national judicial system. (CPE, 1998)

(4) See also Appendix 2.

(5) Regarding water management, governmentalinstitutions, administrative procedures to obtain waterusage rights, conservation of water resources, waterpollution, dumping permits and concessions, priorities forconcessions, budget and jurisdictional institutions.

(6) I am referring to the de-codification carried out by theindigenous peoples who acknowledged that theircitizenship statuses are different, have undertakenlawmaking with an eye to profoundly change the State andthe Law, while it remains necessary to reform the existingState in response to the plurality of stakeholders in Ecuador.

REFERENCE LIST Asamblea Nacional Constituyente [National ConstitutionalAssembly], 2003, Constitución Política del Ecuador. [NationalConstitution of Ecuador]. http://www.corpei.ec

CEPCU, 1999, Model Community Regulations. Otavalo,Ecuador.

Clavero Bartolomé, 1994, Derecho Indígena y culturaconstitucional en América. Siglo XXI Editores, Mexico City.

Clavero Bartolomé, 2000, Ama llunku, Abya Yala.Constituyencia indígena y código ladino por América. Centrefor Political and Constitutional Studies, Madrid, ChapterOne. http://www.alertanet.net

Comisión Andina de Juristas [Andean Commission of Jurists],2003, Los derechos humanos en las constituciones andinas.Derechos Indígenas. http://calpe.org.pe/rij

CONAIE, 1996, Water Law. Quito.

CONAIE, 2002, Proposal regarding Indigenous Nationalitiesand Peoples. Word document, Indigenous AffairsCommission, National Congress of Ecuador, Quito.

CONAIE, 1998, Political Proposal of the Confederation ofIndigenous Nationalities of Ecuador. Quito.

ECUARUNARI, 1998, Law on Indigenous and RuralCommunities of Ecuador. Quito.

Gomez Magdalena, 1997, Indigenous Law. NationalIndigenous Studies Institute, Mexico City.

Noboa Gustavo, 2003, Programme for Irrigation andRecovery of Degraded Land. Executive Decree 3609, 20March 2003, Official Gazette, Special Edition No 1, UnifiedText of the Secondary Legislation of the Ministry ofAgriculture and Livestock, Quito.

Ulcango Ricardo, 1998, Presentation on the Law ofIndigenous and Rural Communities of Ecuador, Quito.

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ADMINISTRATION OF JUSTICE

BOLIVIA Article 171: (…) III. The native authorities of indigenous andrural communities may perform functions of administrationand enforcement of their own norms, as alternative conflictresolution, pursuant to their customs and procedures,providing the latter are not contrary to this Constitution orthe Law. The Law shall make these functions compatiblewith the powers of government authorities.

CHILENo specific provisions regarding indigenous peoples andadministration of justice.

COLOMBIAArticle 246: Indigenous peoples’ authorities may performjudicial functions within their territory, pursuant to theirown norms and procedures, providing that they are notcontrary to the Constitution or Laws of the Republic. TheLaw shall establish the ways to co-ordinate this specialjurisdiction with the national judicial system.

ECUADORArticle 191: (…) Indigenous peoples’ authorities shallperform functions of justice, applying their own norms andprocedures to resolve internal conflicts according to theircustoms or customary law, providing this is not contrary tothe Constitution or the Law. The Law will make thesefunctions compatible with the national judicial system.

PERUArticle 149: Rural and native community authorities, withsupport from Rural Committees [Rondas] may performjudicial functions within their territory pursuant tocustomary law, providing they do not violate individuals’fundamental rights.The law establishes the ways to co-ordinate this specialjurisdiction with the Justices of the Peace and other agenciesof the Judicial Branch.

VENEZUELAArticle 260: The legitimate authorities of indigenous peoplesmay enforce, in their habitat, justice based on their ancestraltraditions, solely affecting their members, according to theirown norms and procedures, providing they are not contraryto this Constitution, the Law or public order. The law willdetermine the way to co-ordinate this special jurisdictionwith the national judicial system.

AUTHORISATION AND CONSULTATIONTO EXTRACT NATURAL RESOURCES

BOLIVIANo specific provisions on authorisation or consultation priorto using indigenous peoples’ natural resources.

CHILENo specific provisions on authorisation or consultation priorto using indigenous peoples’ natural resources.

COLOMBIAArticle 330: Pursuant to the Constitution and the Law,indigenous territories shall be governed by councils formedand regulated according to the usage and customs of theircommunities, performing the following functions: (…). Sub-section: Natural resources shall be extracted fromindigenous territories without harming indigenouscommunities culturally, socially or economically. In decisionsmade regarding such extraction, the Government shallencourage participation by representatives of the respectivecommunities.

ECUADORArticle 84: The State shall recognize and guaranteeindigenous peoples, pursuant to this Constitution and theLaw, respect for public order and human rights, thefollowing collective rights: (…)5. To be consulted on plans and programmes for prospectingfor and extracting non-renewable resources found in theirland, which could affect them environmentally or culturally,to share in benefits yielded by these projects, when possible,and to receive indemnity for socio-environmental damagecaused to them.

PERUNo specific provisions on authorisation or consultation priorto using indigenous peoples’ natural resources.

VENEZUELAArticle 120: Natural resources shall be extracted fromindigenous habitats by the government without harmingthem culturally, socially or economically and shall also besubject to prior information and consultation with therespective indigenous communities. Benefits of suchextraction by the indigenous peoples shall be subject to theConstitution and the Law.

APPENDIX 1 (1): Comparative chart, Andean Positive Law on environmentand indigenous peoples(2).

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NATURAL RESOURCES

BOLIVIAArticle 171: I. The social, economic and cultural rights of theindigenous peoples living within the Nation’s territory arerecognized, respected and protected by Law, especiallythose regarding their community lands of origin,guaranteeing usage and sustainable utilisation of naturalresources, their identity, values, languages, customs andinstitutions.

CHILENo specific provisions on indigenous peoples’ rights overnatural resources.

COLOMBIAArticle 330: Pursuant to the Constitution and the Law,indigenous territories shall be governed by councils formedand regulated according to the usage and customs of theircommunities, performing the following functions: (…). Sub-section: Natural resources shall be extracted fromindigenous territories without harming indigenouscommunities culturally, socially or economically. In decisionsmade regarding such extraction, the Government shallencourage participation by representatives of the respectivecommunities.

ECUADORArticle 84: The State shall recognize and guaranteeindigenous peoples, pursuant to this Constitution and theLaw, respect for public order and human rights, thefollowing collective rights: (…)4. To share in the use, usufruct, administration andconservation of renewable natural resources found in theirland.5. To be consulted on plans and programmes for prospectingfor and extracting non-renewable resources found in theirland, which could affect them environmentally or culturally,to share in benefits yielded by these projects, when possible,and to receive indemnity for socio-environmental damagecaused to them.

PERUArticle 66: Natural resources, renewable and non-renewable,are the Nation’s property. The State is sovereign in utilizingthem.The organizational law sets the conditions for utilisationand for particular grants. Concessions grant bearers realrights, subject to that legal norm.

VENEZUELAArticle 120: Natural resources shall be extracted fromindigenous habitats by the government without harmingthem culturally, socially or economically and shall also besubject to prior information and consultation with therespective indigenous communities. Benefits of suchextraction by the indigenous peoples shall be subject to theConstitution and the Law.

ENVIRONMENT

BOLIVIANo specific provisions on the environment.

CHILENo specific provisions on indigenous peoples and theenvironment.

COLOMBIANo specific provisions on indigenous peoples and theenvironment.

ECUADORArticle 84: The State shall recognize and guaranteeindigenous peoples, pursuant to this Constitution and theLaw, respect for public order and human rights, thefollowing collective rights: (…)5. To be consulted on plans and programmes for prospectingfor and extracting non-renewable resources found in theirland, which could affect them environmentally or culturally,to share in benefits yielded by these projects, when possible,and to receive indemnity for socio-environmental damagecaused to them.Article 86: The State shall protect the public’s right to live ina healthy and ecologically balanced environment, that willguarantee sustainable development. It shall ensure that thisright is not affected and shall guarantee the conservation ofNature.

PERUArticle 67: The State sets national environmental policy. Itpromotes sustainable use of natural resources.Article 68: The State is obliged to promote conservation ofbiological diversity and protected natural areas.

VENEZUELAArticle 120: Natural resources shall be extracted fromindigenous habitats by the government without harmingthem culturally, socially or economically and shall also besubject to prior information and consultation with therespective indigenous communities. Benefits of suchextraction by the indigenous peoples shall be subject to theConstitution and the Law.

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(1) On the basis of a matrix by Raquel Irigoyen-Fajardo(www.tanet.net) and the Andean Jurists’ Commission(www.cajpe.org.pe), a partial comparison of AndeanConstitutions regarding indigenous rights.

(2) Source: Andean Commission of Jurists (RIJ) IndigenousPeoples (www.cajpe.org.pe).

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Art. 10. The power of the indigenous authority that thenationality or people recognize as legitimate, as granted bytheir own customary law, over the territories of theircommunity property, and those of ancestral possession, shallbe respected; moreover, they shall have the following powers: 2. To establish the collective community’s participation inmanagement, usage and utilisation thereof.3. To prepare and approve, with citizens’ participation, plans,programmes and projects for development and ongoingimprovement of the inhabitants’ quality of life.4. To administer renewable natural resources found withintheir boundaries and to regulate access thereto and rationaluse and utilisation thereof.5. To regulate use and utilisation of waters originating andrunning within the boundaries of their territory.6. To authorize transfer of use and usufruct of individualownership of lots of land within their community orancestrally possessed land.7. To resolve conflicts that arise regarding boundaries,possession, easements, succession, donation and others thatcome up in regard to individual property referred to in theprevious item.Transfer of use and usufruct by the indigenous authority,pursuant to their own customary law, and the resolutionsissued under items 6 and 7 hereof, shall be put in writing bythe same authority and notified to the property register of thecanton for registration, and shall constitute sufficient title.

Art. 19. Powers and rights regarding territories of indigenousnationalities and peoples comprise community property,ancestral possession, administration, conservation, use andusufruct of renewable natural resources for communities’collective benefit, and conservation and promotion ofpractises regarding management of biodiversity and thenatural environment.

Art. 24. All plans, programmes and projects for prospecting,exploration, or extraction of renewable and non-renewablenatural resources found in the territories or lands ofnationalities and peoples or that could harm them or theirmembers, or affect the environment, must be consulted onwith them. For this purpose, the respective information shallbe delivered to the indigenous authority with competentjurisdiction according to customary indigenous law andsubsidiarily in the by-laws. The information shall beaccompanied by studies and details that make it possible toforesee environmental, cultural, social and economic effects.

Art. 28. All plans, programmes or projects of infrastructure,tourism, prospecting, exploration or extraction of naturalresources taking place in territories of community propertyor ancestral possession of indigenous nationalities or peoplesand direct areas of influence, shall provide for their sharingin the benefits yielded thereby.

Art. 33. All projects for infrastructure, prospecting, explorationand extraction of natural resources, tourism and those othersreferred to in Article 28 of this law shall requireenvironmental, socio-cultural and economic impact studiesand shall provide for measures to prevent harm to people,property and the environment, as well as mechanisms andactions to repair and/or indemnify for damage that may occur.

Art. 39. Indigenous nationalities and peoples shallparticipate, with the right to speak and to vote, throughtheir representatives, in all governmental institutions withsectoral membership, as well as regional, provincial, andcanton-level institutions, having the responsibility forstudying and setting State policies in activities that the Statehas undertaken pursuant to the Constitution and the Law,such as natural resources, biological diversity, naturalreserves, protected areas, national parks, tourism,electromagnetic spectrum, electrical power, etc.

Art. 40. Indigenous nationalities and peoples shall appointrepresentatives for the following institutions: the TechnicalBody responsible for the National Planning System, theNational Educational Council, the National Health Council, theNational Water Resource Council, the National Council onChildren and Adolescents, the Board of Directors of the Homeof the Ecuadorian Culture, the National Agrarian DevelopmentInstitute, Energy and Mines, the Board of Directors ofPETROECUADOR, and other national agencies with sectoralrepresentation, responsible for studying and setting Statepolicies in the activities that the State has undertaken pursuantto the Constitution and the Law, such as natural resources,biological diversity, natural reserves, protected areas, nationalparks, electromagnetic spectrum, electrical power, etc.

Art. 47. Infrastructure and public service, transport,sewerage, water supply, and in general environmentalsanitation projects shall be the responsibility of centralgovernment institutions and of autonomous sub-nationalgovernments, with involvement of indigenous nationalitiesand peoples in preparing and implementing the projects.

Art. 50. Administration of public services – water supply,sewerage and /or environmental sanitation – shall be theresponsibility of indigenous nationalities and peoples withintheir jurisdiction, in co-ordination with local governments.

Art. 51. To administer public services, the responsiblenationalities or peoples may form community or self-managedenterprises such as water supply administrative boards,involving non-indigenous persons when the parties so agree.

Art. 63. Own resources also include those from direct utilisation,by community enterprises or through concession contracts, ofrenewable natural resources, over which they have jurisdictionfor administration, conservation and extraction.

APPENDIX 2: Norms of the Proposed Law on Indigenous Nationalitiesand Peoples regarding water management and participation (Law proposed by the Confederation of Indigenous Nationalities of Ecuador(CONAIE), presented by Congressman Gilberto Talahua, as Chairman of theCommission on Indigenous Affairs in 2001)

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Relationship to Water

1. We, the Indigenous Peoples from all parts ofthe world assembled here, reaffirm our relation-ship to Mother Earth and responsibility to futuregenerations to raise our voices in solidarity tospeak for the protection of water. We were placedin a sacred manner on this earth, each in our ownsacred and traditional lands and territories tocare for all of creation and to care for water.

2. We recognize, honour and respect water assacred and sustaining of all life. Our traditionalknowledge, laws and ways of life teach us to beresponsible in caring for this sacred gift that con-nects all life.

3. Our relationship with our lands, territories andwater is the fundamental physical, cultural andspiritual basis for our existence. This relationshipto our Mother Earth requires us to conserve ourfreshwaters and oceans for the survival of presentand future generations. We assert our role as care-takers with rights and responsibilities to defendand ensure the protection, availability and purityof water. We stand united to follow and imple-ment our knowledge and traditional laws andexercise our right of self-determination to pre-serve water, and to preserve life.

Conditions of Our Waters

4. The ecosystems of the world have been inchange and in crisis. In our generation, we seethat our waters are being polluted with chemi-cals, pesticides, sewage, disease, radioactive con-tamination and ocean dumping from mining toshipping wastes. We see our waters being

depleted or converted into destructive usesthrough the diversion and damming of watersystems, mining and mineral extraction, miningof groundwater and aquifers for industrial andcommercial purposes, and unsustainable eco-nomic, resource and recreational development,as well as the transformation of excessiveamounts of water into energy. In the tropicalsouthern and northern forest regions, deforesta-tion has resulted in soil erosion and thermalcontamination of our water.

5. The burning of oil, gas, and coal, known collec-tively as fossil fuels, is the primary source ofhuman-induced climate change. Climate change,if not halted, will result in increased frequency andseverity of storms, floods, drought and watershortage. Globally, climate change is worseningdesertification. It is polluting and drying up thesubterranean and water sources, and is causing theextinction of precious flora and fauna. Manycountries in Africa have been suffering fromunprecedented droughts. The most vulnerablecommunities to climate change are IndigenousPeoples and impoverished local communitiesoccupying marginal rural and urban environ-ments. Small island communities are threatenedwith becoming submerged by rising oceans.

6. We see our waters increasingly governed byimposed economic, foreign and colonial domi-nation, as well as trade agreements and commer-cial practices that disconnect us as peoples fromthe ecosystem. Water is being treated as a com-modity and as a property interest that can bebought, sold and traded in global and domesticmarket-based systems. These imposed and inhu-mane practices do not respect that all life issacred, that water is sacred.

Indigenous Peoples Kyoto Water DeclarationThird World Water Forum, Kyoto, Japan, March 2003

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7. When water is disrespected, misused andpoorly managed, we see the life threateningimpacts on all of creation. We know that ourright of self-determination and sovereignty, ourtraditional knowledge, and practices to protectthe water are being disregarded, violated and dis-respected.

8. Throughout Indigenous territories worldwide,we witness the increasing pollution and scarcityof fresh waters and the lack of access that we andother life forms such as the land, forests, animals,birds, plants, marine life, and air have to ourwaters, including oceans. In these times ofscarcity, we see governments creating commer-cial interests in water that lead to inequities indistribution and prevent our access to the life giv-ing nature of water.

Right to Water and Self Determination

9. We Indigenous Peoples have the right to self-determination. By virtue of that right we havethe right to freely exercise full authority and con-trol of our natural resources including water. Wealso refer to our right of permanent sovereigntyover our natural resources, including water

10. Self-determination for Indigenous Peoplesincludes the right to control our institutions, terri-tories, resources, social orders, and cultures with-out external domination or interference.

11. Self-determination includes the practice ofour cultural and spiritual relationships withwater, and the exercise of authority to govern,use, manage, regulate, recover, conserve,enhance and renew our water sources, withoutinterference.

12. International law recognizes the rights ofIndigenous Peoples to: • Self-determination • Ownership, control and management of ourtraditional territories, lands and natural resources• Exercise our customary law• Represent ourselves through our own institutions• Require free prior and informed consent todevelopments on our land • Control and share in the benefits of the use of,our traditional knowledge.

13. Member States of the United Nations andinternational trade organizations, internationaland regional financial institutions and interna-tional agencies of economic cooperation arelegally and morally obligated to respect andobserve these and other related collective humanrights and fundamental freedoms. Despite inter-national and universal recognition of our role ascaretakers of Mother Earth, our rights to recover,administer, protect and develop our territories,natural resources and water systems are systemat-ically denied and misrepresented by governmen-tal and international and domestic commercialinterests. Our rights to conserve, recreate andtransmit the totality of our cultural heritage tofuture generations, our human right to exist asPeoples is increasingly and alarmingly restricted,unduly impaired or totally denied.

14. Indigenous Peoples interests on water andcustomary uses must be recognized by govern-ments, ensuring that Indigenous rights areenshrined in national legislation and policy.Such rights cover both water quantity and qual-ity and extend to water as part of a healthy envi-ronment and to its cultural and spiritual values.Indigenous interests and rights must be respectedby international agreements on trade and invest-ment, and all plans for new water uses and allo-cations.

Traditional Knowledge

15. Our traditional practices are dynamically reg-ulated systems. They are based on natural andspiritual laws, ensuring sustainable use throughtraditional resource conservation. Long-tenuredand place-based traditional knowledge of theenvironment is extremely valuable, and has beenproven to be valid and effective. Our traditionalknowledge developed over the millennia shouldnot be compromised by an over-reliance on rela-tively recent and narrowly defined westernreductionist scientific methods and standards.We support the implementation of strong meas-ures to allow the full and equal participation ofIndigenous Peoples to share our experiences,knowledge and concerns. The indiscriminate andnarrow application of modern scientific toolsand technologies has contributed to the loss anddegradation of water.

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Consultation

16. To recover and retain our connection to ourwaters, we have the right to make decisions aboutwaters at all levels. Governments, corporationsand intergovernmental organizations must,under international human rights standardsrequire Indigenous Peoples free prior andinformed consent and consultation by culturalappropriate means in all decision-making activi-ties and all matters that may have affect. Theseconsultations must be carried out with deepmutual respect, meaning there must be no fraud,manipulation, and duress nor guarantee thatagreement will be reached on the specific projector measure. Consultations include:• To conduct the consultations under the com-munities own systems and mechanisms;• The means of Indigenous Peoples to fully par-ticipate in such consultations; and;• Indigenous Peoples exercise of both their localand traditional decision-making processes,including the direct participation of their spiritualand ceremonial authorities, individual membersand community authorities as well as traditionalpractitioners of subsistence and cultural ways inthe consultation process and the expression ofconsent for the particular project or measure. • Respect for the right to say no. • Ethical guidelines for a transparent and specificoutcome.

Plan of Action

17. We endorse and reiterate the “KimberleyDeclaration and the Indigenous Peoples’ Plan ofImplementation on Sustainable Development”which was agreed upon in Johannesburg duringthe World Summit on Sustainable Development inSeptember 2002.

18. We resolve to sustain our ancestral and his-torical relationships with and assert our inherentand inalienable rights to our lands and waters.

19. We resolve to maintain, strengthen and sup-port Indigenous Peoples’ movements, strugglesand campaigns on water and enhance the role ofIndigenous elders, women and youth to protectwater.

20. We seek to establish a Working Group ofIndigenous Peoples on Water, which will facilitatelinkages between Indigenous Peoples and providetechnical and legal assistance to Indigenous com-munities who need such support in their strugglesfor the right to land and water. We will encouragethe creation of similar working groups at thelocal, national and regional levels.

21. We challenge the dominant paradigm, poli-cies, and programs on water development, whichincludes among others; government ownershipof water, construction of large water infrastruc-tures; corporatisation; the privatisation and com-modification of water; the use of water as a trade-able commodity; and the liberalization of tradein water services, which do not recognize therights of Indigenous Peoples to water.

22. We strongly support the recommendations ofthe World Commission on Dams (WCD) onwater and energy development. These includethe WCD report’s core values, strategic priorities,the “rights and risks framework” and the use ofmulti-criteria assessment tools for strategicoptions assessment and project selection. Itsrights-based development framework, includingthe recognition of the rights of IndigenousPeoples in water development is a major contri-bution to decision-making frameworks for sus-tainable development.

23. We call on the governments, multilateralorganizations, academic institutions and thinktanks to stop promoting and subsidizing theinstitutionalisation and implementation of theseanti-people and anti-nature policies and pro-grams.

24. We demand a stop to mining, logging, energyand tourism projects that drain and pollute ourwaters and territories.

25. We demand that the World Bank, theInternational Monetary Fund (IMF), regionalbanks like the Asian Development Bank, AfricanDevelopment Bank, Inter-American DevelopmentBank, stop the imposition of water privatisation or‘full cost recovery’ as a condition for new loansand renewal of loans of developing countries.

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26. We ask the European Union to stop champi-oning the liberalization of water services in theGeneral Agreement on Services (GATS) of theWorld Trade Organization (WTO). This is notconsistent with the European Commission’s pol-icy on Indigenous Peoples and development. Wewill not support any policy or proposal comingfrom the WTO or regional trade agreements likethe NAFTA (North American Free TradeAgreement, Free Trade Area of the Americas(FTAA), on water privatisation and liberalizationand we commit ourselves to fight against suchagreements and proposals.

27. We resolve to replicate and transfer our tradi-tional knowledge and practices on the sustain-able use of water to our children and the futuregenerations.

28. We encourage the broader society to supportand learn from our water management practicesfor the sake of the conservation of water all overthe world.

29. We call on the States to comply with theirhuman rights obligations and commitments tolegally binding international instruments to whichthey are signatories to, including but not limitedto, such as the Covenant on Civil and PoliticalRights, the Covenant on Economic, Cultural andSocial Rights, International Convention on theElimination of all Forms of Racial Discrimination;as well as their obligations to conventions on theenvironment, such as the Convention onBiological Diversity, Climate Convention, andConvention to Combat Desertification.

30. We insist that the human rights obligationsof States must be complied with and respected bytheir international trade organizations. Theselegally binding human rights and environmentalobligations do not stop at the door of the WTOand other regional and bilateral trade agree-ments.

31. We resolve to use all political, technical andlegal mechanisms on the domestic and interna-tional level, so that the States, as well as transna-tional corporations and international financialinstitutions will be held accountable for theiractions or inactions that threaten the integrity ofwater, our land and our peoples.

32. We call on the States to respect the spirit ofArticle 8j of the Convention on BiologicalDiversity as it relates to the conservation of tradi-tional knowledge on conservation of ecosystemsand we demand that the Trade Related Aspects ofthe Intellectual Property Rights (TRIPS)Agreement be taken out of the World TradeOrganization (WTO) Agreements as this violatesour right to our traditional knowledge.

33. We call upon the States to fulfil the mandatesof the United Nations Framework Convention onClimate Change (UNFCCC) and to ratify theKyoto Protocol. We call for the end of State finan-cial subsidies to fossil fuel production and pro-cessing and for aggressive reduction of green-house gas emissions calling attention to theUnited Nations Intergovernmental Panel onClimate Change (IPCC) that reported an immedi-ate 60% reduction of CO2 is needed to stabilizeglobal warming.

34. We will ensure that international and domes-tic systems of restoration and compensation beput in place to restore the integrity of water andecosystems.

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Other titles in the LINKS series Knowledges of Nature:

Hviding Edvard, 2005. Reef and Rainforest: An Environmental Encyclopedia of Marovo Lagoon,Solomon Islands / Kiladi oro vivineidi ria tingitonga pa idere oro pa goana pa Marovo. Knowledges of Nature 1. UNESCO: Paris. 252 pp.

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Local and Indigenous Knowledge Systems

water andindigenous peoples

Indigenous peoples from all corners of the globecontinue to struggle for acknowledgement andrecognition of their unique visions of water,both at home and in national, regional andinternational forums. But almost withoutexception, their voices remain obscured by amainstream discourse rooted in the conceptionof water as a mere commodity. Water andIndigenous Peoples is based on the papersdelivered on the occasion of the Second and theThird World Water Forums (The Hague in 2000and Kyoto in 2003). It brings to the fore some ofthe most incisive indigenous critics of interna-tional debates on water access, use and man-agement, as well as indigenous expressions ofgenerosity that share community knowledgeand insight in order to propose remedies forthe global water crisis.