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Water Rights:
By Wouter Lincklaen Arriens* |
Water rights are about providing security. The rural and urban poor need security of access to clean water and sanitation to satisfy their basic needs and live with dignity. Subsistence farmers need the security of water service for their livelihoods. Landowners seek security of water service to invest labor and money into developing their land. City dwellers need security of water supplies to maintain a more advanced lifestyle that inevitably involves higher consumption of water. And industrial and commercial users need a secure investment climate for their business development plans, and reliable water services are an integral part of their needs.
In countries without a water law that recognizes water rights, everyone has the same rights to water. In practice, this means that water users with more power, money, and influence find it easier to achieve water security than the poor. Participants to the water rights workshop organized by the Network of Asian River Basin Organizations (NARBO) agreed that it is the poor who are most in need of water rights, to gain access to water services, and to protect their access from being taken away by other water users.
Experience with water rights varies in the region. Japan and the Philippines have adopted water laws with provisions for water use rights several decades ago. More recently, Viet Nam and Indonesia have also promulgated laws with provisions for licensing water use rights. On the other hand, Thailand and Sri Lanka have yet to pass modern water legislation, while the Lao PDR has a general water law that lacks the necessary regulations for implementation.Historically, each of the 7 countries has developed its economy from an agricultural base relying on paddy cultivation in a monsoonal climate supported by irrigation systems. By and large, the allocation of water in agriculture, which was and still is the largest water user, has enjoyed a rich tradition of participatory and consultative processes at the local level. Nowadays, agricultural water uses in most of the countries are regarded as having customary rights, often protected in perpetuity by the ‘first in time, first in right’ principle.
In recent decades, rapid economic development combined with industrialization and urbanization has exponentially increased the demands for water, causing widespread shortages especially during the dry season. Furthermore, water pollution has become a major cause of environmental degradation, and has further reduced the availability of clean water. The workshop participants agreed that there is a need for countries facing such challenges to advance from ‘implicit’ water allocation systems on a project-by-project basis to more ‘explicit’ water allocation systems that involve licensing of water use rights. In doing so, they argued that countries should give priority to assigning water use rights to poor communities and for environmental services, including environmental flows in rivers.Interestingly, none of the 7 countries has adopted fundamental water rights in its legislation in the way that South Africa has done by assigning a reserve for basic human needs. South African legislation defines the minimum standard for basic water supply as 25 liters of potable water per person per day, free of charge. It is an absolute right of access defined in primary legislation and therefore not subject to allocation procedures, but only to the capacity of government at all levels to deliver on this commitment.
The Indonesian water resources law of 2004 comes closest to such a fundamental water rights with a provision that “the state guarantees the right of every person in obtaining water for minimum rudimentary daily use to fulfill a healthy, clean, and productive life.” Besides the need to recognize rights to a basic amount of water, workshop participants agreed that safeguarding environmental flows in rivers is also critical, and they referred to the Philippine policy of setting a target of 10% as a helpful way of increasing results.
In most of the 7 countries, the introduction of water licensing is driven by the need to accommodate new water users, such as burgeoning satellite towns and housing projects, and industrial estates. With the entry of these new players, most of whom operate on a business model, the traditional social capital from the agricultural era of consultation and negotiated solutions is now stretched beyond its limits. New water allocation systems are needed that are supported by modern legislation.
This is not to say that consultation, consensus, and negotiated approaches have lost their place under the sun. Several participants argued that such practices are still needed, especially in a river basin context and among agricultural water users. However, negotiations among urban, industrial and agricultural water users are generally seen as uncharted territory with uncertain outcomes.Expectations are rising that the licensing of water use rights will help create win-win solutions among water users competing for this increasingly scarce resource. In this regard, river basin organizations were asked to maintain a practical focus and direct their attention to solving and avoiding problems in the basin, and to help improve the enabling environment for integrated water resources management, including effective provisions for water rights and allocation.
Experience in the region shows that it takes decades to develop the necessary capacity to implement water licensing efficiently. Having that knowledge should, however, not stop anyone from starting now, because all stakeholders can benefit from water rights that are protected by law, especially the poor who need it most.
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