Tenure arrangements determine how people, communities and organizations gain access to the use of natural resources. Inadequate and insecure tenure arrangements increase vulnerability, hunger and poverty and the risk of conflict while also constraining economic growth: people are usually reluctant to invest without security of tenure. So why is it that in a world with increasing pressure on water resources that there is so little discussion of water tenure?
The main aim of this paper is to suggest that water tenure has the potential not only to improve our understanding of the complexity of the relationships between people and water resources but also to inform better policy making in respect of not only the allocation of water resources but also in terms of water governance. On 11 May 2012 the 38th Special Session of the Committee on World Food Security of the Food & Agriculture Organization of the United Nations (FAO) officially endorsed the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (the "VGGT").
When the process of developing the VGGT started it was originally envisaged that water, and thus water tenure, would also be included. In the end, as the title of the VGGT implies, water was left out. But why? As a resource water is clearly physically different to, say, land and forests, but the basic issues addressed by tenure arrangements are just as pertinent in a world of increasing pressure on water resource. In terms of the allocation of water resources such as debate as takes place is usually framed in terms of water rights. But apart from the act that there are so many different conceptions of water rights (under both of formal and customary law) that comparisons become difficult, the key point to note about tenure is that its scope is far broader than a narrow legal discussion of rights. Notwithstanding the eventual omission of water from the VGGT, FAO has continued to explore the issue of water tenure including commissioning of a series of national case studies for India, South Africa and Spain. Based on the research undertaken, this paper seeks to explore the notion of water tenure and the benefits of taking a 'water tenure approach' to the management, allocation and use of water resources. Its main findings are that not only is water tenure a potentially useful and relevant means of examining the relationships of people and groups with water resources but that it is in practice the main question that is of concern to water users: will I get my share of water? After first examining the notion of 'tenure', with a particular emphasis on land tenure, the paper sets out a preliminary typology of water tenure, which turns out to be surprisingly broad in scope, before mapping different types of water tenure arrangements to specific purposes for which water resources are used. After highlighting both similarities and differences between land tenure and water tenure, the paper next proposes a preliminary set of criteria for comparing and evaluating different types of water tenure arrangement namely security, equity, sustainability and efficiency. Next, just as land tenure and land tenure arrangements are intimately connected to questions of political economy and thus governance in the broadest sense, the paper makes the case that water tenure is key to improved water governance. Put another way unless there is a clear understanding of water tenure arrangements in a given context, attempts to somehow 'improve' water governance will be flawed. At a broader level the paper makes the case that water tenure offers a number of benefits of analyzing relationships with water resources. These include its holistic and non-prescriptive nature, the fact that it allows a more nuanced and less normative understanding of the topic, coherence with other basic resources, its inherently multi-disciplinary nature and finally, as mentioned above, the fact that water tenure takes an inherently bottom up approach to water resources management given its focus on the needs and interests of users. The paper concludes by setting out a number of basic elements of a water tenure approach including the notion of a water tenure assessment, a more explicit recognition of the need for policies on water tenure and the eventual adoption of voluntary guidelines by FAO or other international donors.
1. AlÂ’Afghani, M.A. Â‘Constitutional CourtÂ’s Review and the Future of Water Law in IndonesiaÂ’,2/1 Law, Environment and Development Journal (2006), p. 1, available at http://www.lead-journal.org/content/06001.pdf.
2. Anderson. A Engaging disadvantaged communities: Lessons from the Inkomati CMA establishment process International workshop on Â‘African Water Laws: Plural Legislative Frameworks for Rural Water Management in AfricaÂ’, 26-28 January 2005, Johannesburg, South Africa available at http://www.nri.org/projects/waterlaw/workshop.htm (hereafter Â‘African Water Law Workshop WebsiteÂ’
3. Bakker, K. 2008. The ambiguity of Community: Debating alternatives to private‐sector provision of urban water supply. Water Alternatives 1(2): 236‐252
4. BjÃ¶rklund, G and SjÃ¶din, J (eds). The Human Right to Water and Sanitation. Securing Access to Water for Basic Needs. Swedish Water House Policy Brief Nr. 8
5. Boag, G. and McDonald, D.A. 2010. A critical review of public-public partnerships in water services. Water Alternatives 3(1)
6. Boelens, R. 2008. Water rights arenas in the Andes: Upscaling the defence networks to localize water control Water Alternatives 1(1): 48‐65
7. Bruns, B. Community-based principles for negotiating water rights:some conjectures on assumptions and priorities, 2005, African Water Law Workshop Website
8. Bruns, B. Water Tenure Reform: Developing an Extended Ladder of Participation Politics of the CommonsÂ” presented at the Articulating Development and Strengthening Local Practices" RCSD Conference, July 11-14, 2003, Chiang Mai, Thailand see http://www.bryanbruns.com/bruns-ladder.pdf
9. Burchi, B. The interface between customary and statutory water rights Â– a statutory perspective 2005, African Water Law Workshop Website
10. Chikozho, C. and Latham, J. Shona customary practices in the context of water sector reforms in Zimbabwe 2005, African Water Law Workshop Website
11. Cotula, L. (ed) Land and water rights in the Sahel Tenure challenges of improving access to water for agriculture Issues Paper No. 139 IIED London, (2006)
12. Czetwertynski, M. The Sale And Leasing Of Water Rights In Western States: An Overview For The Period 1990-2001 Water Policy Working Paper #2002-002, Georgia State University, Atlanta, 2002.
13. Derman, B., Hellum, A. and Sithole, P. Intersections of human rights and customs: a livelihood perspective on water laws 2005, African Water Law Workshop Website
14. Dore, J., Robinson, J. and Smith, M. (Eds) (2010). Negotiate Â– Reaching agreements over water. Gland, Switzerland: IUCN.
15. Dyson, M., Bergkamp, G. and Scanlon, J., (eds). Flow Â– The essentials of environmental flows, 2nd Edition. Gland, Switzerland: IUCN. Reprint, Gland, Switzerland: IUCN, 2008.
16. Eyasu Elias & Feyera Abdi Putting pastoralists on the policy agenda: Land alienation in southern Ethiopia Gatekeeper Series 145, IIED London, July 2010
17. FAO Creating legal space for water user organizations: transparency, governance and the law FAO, Rome Legislative Study No. 100 (2009)
18. FAO, Modern water rights Â–Theory and practice FAO, Rome Legislative Study No. 92 (2006)
19. FAO, Land and Water Â– the Rights Interface FAO, Rome Legislative Study No. 84 (2004)
20. Garduno, H. Making water rights administration work 2005, African Water Law Workshop Website
21. Hooper, B. Â‘River Basin organisational performance indicators: application to the Delaware River basin commissionÂ’ Water Policy 12 (2010) 461-478
22. Huggins, C. Rural Water Tenure in East Africa: a comparative study of legal regimes and community responses to changing tenure patterns in Tanzania and Kenya African Centre for Technology Studies, Nairobi, 2002
23. Iza, A. and Stein, R. (Eds) (2009). RULE Â– Reforming water governance. Gland, Switzerland: IUCN.
24. Krishnan, J. and George, A. 2009. Â‘Ecology and equity in rights to land and water: A study in south eastern Palakkad in KeralaÂ’. Water Alternatives 2(1): 1‐15
25. Lankford, B. and Mwaruvanda, W. A framework to integrate formal and informal water rights in river basin management 2005, African Water Law Workshop Website
26. Mapedza, E. & Geheb, K. Â‘Power dynamics and water reform in the Zimbabwean context: implications for the poorÂ’ Water Policy 12 (2010) 517-527
27. Mayers, J., Batchelor, C., Bond, I., Hope, R.A., Morrison, E., & Wheeler, B. Water ecosystem services and poverty under climate change: Key issues and research priorities IIED London, 2009
28. Meinzen-Dick, R. & Nkonya, L. Understanding legal pluralism in water rights: lessons from Africa and Asia 2005, African Water Law Workshop Website
29. Molle, F., Mollinga, P.P. and Wester, P. 2009. Â‘Hydraulic bureaucracies and the hydraulic mission: Flows of water, flows of powerÂ’, Water Alternatives 2(3): 328‐349
30. Moriarty, P.B.; Batchelor, C.H.; Laban, P. and Fahmy, H. 2010. Developing a practical approach to 'light IWRM' in the Middle East Water Alternatives 3(1): 122-136
31. Mumma, A. KenyaÂ’s new water law: an analysis of the implications for the rural poor 2005, African Water Law Workshop Website
32. Neef. A. 2009. Transforming rural water governance: Towards deliberative and polycentric models? Water Alternatives 2(1): 53‐60
33. Pegram, G. and Bofilatos, E. Considerations on the composition of CMA Governing Boards to achieve representation 2005, African Water Law Workshop Website
34. Porras et al. 2008. All that glitters: A review of payments for watershed services in developing countires. Natural Resource Issues No. 11. International Institute for Environment and Development. London, UK.
35. Quan, J, Â“Land Tenure, Economic Growth in Sub-Saharan AfricaÂ” in Toulmin, C. & Quan, J. (eds) Evolving land rights, policy and tenure in Africa DFID/IIED/NRI London 2000, at page 33.
36. Salman Salman &S. McInerney-Lankford (2004). The Human Right to Water. Legal and Policy Dimensions. Law Justice and Development Series. World Bank. Washington D.C. 180pp.
37. Sadoff, C., Greiber, T., Smith, M. and Bergkamp, G. (2008). Share Â– Mana