Water and Indigenous Peoples

water and indigenous peoples
Indigenous peoples from all corners of the globe

continue to struggle for acknowledgement and
recognition of their unique visions of water,
both at home and in national, regional and
international forums. But almost without
exception, their voices remain obscured by a
mainstream discourse rooted in the conception
of water as a mere commodity. Water and
Indigenous Peoples is based on the papers
delivered on the occasion of the Second and the
Third World Water Forums (The Hague in 2000
and Kyoto in 2003). It brings to the fore some of
the most incisive indigenous critics of interna-
tional debates on water access, use and man-
agement, as well as indigenous expressions of
generosity that share community knowledge
and insight in order to propose remedies for
the global water crisis.
water and
indigenous peoples
Local and Indigenous Knowledge Systems

water
and
indigenous
peoples
UNESCO – LINKS
Water and indigenous peoples
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-editors
Rutgerd Boelens
Coordinator, Water Law and Indigenous Rights Programme (WALIR), Wageningen University
(Nieuwe Kanaal 11, 6709 PA, Wageningen, the Netherlands)
Moe Chiba
Local and Indigenous Knowledge Systems (LINKS), UNESCO
Douglas Nakashima
Leader, Local and Indigenous Knowledge Systems (LINKS), UNESCO
English Reviser
Peter Coles
Graphics and Cover Design

Stéphane Rébillon www.stephanerebillon.com
Acknowledgements (alphabetical order)

Ken-ichi Abe (Japan Centre for Area Studies, Osaka, Japan)
Teresa Callihoo
Samuel Dubois
Mailin Fauchon (Secretariat of the Third World Water Forum)
Noriko Iizuka and team (Japan Centre for Area Studies, Osaka, Japan)
Melisande Middleton
Ouri Scott
Central America Global Water Partnership
06 Centre for Research on Life and Environment (CRLE) (USA)
Fundación Solón (Bolivia)
Japanese Funds-in-Trust for the Promotion of International Cooperation and Mutual Understanding
Netherlands Ministry of Foreign Affairs
Tebtebba 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 Chiba
UNESCO-LINKS
1, rue Miollis 75732 Paris Cedex 15 France
E-mail: d.nakashima@unesco.org / m.chiba@unesco.org
(SC-2006/WS/3)
Foreword
Foreword
By adopting the UNESCO Universal Declaration on Cultural Diversity in 2001, the international community has
demonstrated its commitment to recognise the “contribution of traditional knowledge, particularly with
regard to environmental protection and the management of natural resources, and fostering synergies
between modern science and local knowledge” (Action Plan No 14 of the UNESCO Universal Declaration on
Cultural Diversity). Yet in the domain of water, a large gap remains between policy and practice. Indigenous
peoples from all corners of the globe continue to struggle for acknowledgement and recognition of their own
visions 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 the
most incisive indigenous critics participating in current international debates on water access, use and
management, as well as expressions of indigenous knowledge and transdisciplinary insights with a view
to proposing remedies for the global water crisis. It also benefits from the contributions of numerous
specialists 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’s
Local and Indigenous Knowledge Systems (LINKS) project. This cross-cutting project brings together
UNESCO’s Sectors for Culture, Natural Sciences, Social and Human Sciences, Education, and
Communication 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 additional
contributions from the Second Water Forum in The Hague in 2000. The official session on indigenous 07
peoples at the Second World Forum was convened by UNESCO’s cross-cutting LINKS project. At the Third
World 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-Global
Water Partnership (Costa Rica), Centre for Respect of Life and Environment (CRLE, USA), ECLAC (United
Nations Economic Commission for Latin America), Fundación Solón (Bolivia), Tebtebba Foundation
(Philippines) and the WALIR program, (coordinated by Wageningen University, the Netherlands and
ECLAC). In addition to the official sessions, indigenous participants at the Third World Water Forum
organized an indigenous caucus that brought together participants throughout the Forum. They held
preparatory meetings and formulated a collective message to decision makers that became the
Indigenous 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 Third
World Water Forums whose contributions have made this publication possible. The Ministry of Foreign
Affairs of the Netherlands, the Government of Japan and the Secretariat of the Second and Third World
Water 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 efforts
in 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 paradigms
with a degree of humility and objectivity. We hope that this publication will provide food for thought
and enrich the on-going debate on cultural pluralism, good governance and sustainable development.
Mounir BOUCHENAKI, Walter ERDELEN,

Assistant Director-General Assistant Director-General
for Culture, UNESCO for Natural Sciences, UNESCO
08
Contents
Opening
Douglas Nakashima and Moe Chiba
Introduction 12
Jeanette Armstrong
Water is Siwlkw 18
Section 1. Struggles for Recognition

Evo Morales
Message on behalf of the Indigenous Peoples at the Third World Water Forum 22
Victoria Tauli Corpuz
Indigenous Peoples and International Debates on Water: Reflections and Challenges 24
Pablo Solón
Cultural Diversity and Privatisation of Water 36
Leonidas Iza
Water belongs to Everyone and to No One 40
Rutgerd Boelens
Local Rights and Legal Recognition: the Struggle for Indigenous Water Rights
and the Cultural Politics of Participation 46
Section 2. Worldviews and Water Management

Ellen P. Dictaan Bang-Oa
Traditional Water Management among the Kankanaeys of Besao, Mountain Province, Philippines 64
Debabrata Roy Laifungbam and Anna Pinto
Sanãmahi – Pãkhangba: a Living Relationship of the Meitei with Water 76
Corinne Wacker
The Flow of Water and the Continuity of Culture: Water Imagery 09
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/Useb
A 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 Norato
The Guardians of Trees and Water (E chajinel rech le che’ ruk le ja’) 106
David Groenfeldt
Water Development and Spiritual Values in Western and Indigenous Societies 108
Section 3. Water Rights and National Legislation

Rocio Renee Bustamante
Pluri-, Multi- Issues in the Reform Process: towards New Water Legislation in Bolivia 118
Armando Guevara-Gil
Official Water Law versus Indigenous and Peasant Rights in Peru 130
WALIR
Water Law and Indigenous Rights 148
Francisco Peña
Indigenous Peoples and Water Resource Management in Mexico 150
Paulina Palacios
Between Customs and the Establishment of Juridical Pluralism 160
Indigenous Peoples Kyoto Water Declaration 174

10
Opening
11
Introduction drawback. First, indigenous peoples risk to be

left by the wayside despite their very real needs
Douglas Nakashima and Moe Chiba for more secure and sustainable livelihoods.
Local and Indigenous Knowledge Systems, Second, and of greater concern, is that the
UNESCO impoverishment and hardship of indigenous
peoples may in fact be exacerbated by this world-
Current efforts to rally international support for wide push to fulfil the MDGs. In response to
sustainable development, such as the Millennium international pressure, governments may
Development Goals (MDGs) or the World Water heighten their exploitation of indigenous lands
Forums, have left indigenous peoples standing and territories, thus further dispossessing indige-
on the sidelines. Already at the Second World nous peoples of the natural resources that they
Water Forum held in The Hague in 2000, the rely upon to fulfil basic needs. Large-scale hydro-
report from the session organized by UNESCO on electric development projects, for example, often
Water and Indigenous Peoples concluded: target indigenous lands because they are dis-
missed as under-populated, under-utilised or
(…) It is clear that indigenous / tribal peoples, even ‘wastelands’. Similarly, indigenous commu-
their unique systems of values, knowledge and nities’ water sources that sustain their multiple
practices have been overlooked in the world uses and livelihood strategies are often taken
water vision process. (…) there is an urgent need away in order to provide drinking water to urban
to correct the imbalance of mainstream-thinking areas and metropoles. Thus a misguided pursuit
by actively integrating indigenous women and of the MDGs could in fact worsen indigenous
men in the subsequent phases starting with the peoples, matters for ever while national indica-
framework for action. tors of well-being may improve.
Conference Report, Water Policy 3 (2001), S49-S51.
Accordingly, there is a real need to involve
12 Yet three years later at the Third World Water indigenous peoples directly in development
Forum in Kyoto in 2003, there was little evidence processes, whether at local, national or global
of change. The UN Permanent Forum on levels. This publication on Water and Indigenous
Indigenous Issues, at their Fourth Session held in Peoples advocates a revision of international
New York in May 2005, recently came to a similar development efforts to fully embrace indigenous
conclusion with respect to the MDGs. They noted peoples’ knowledge, values, land tenure, cus-
the severe shortcomings of the MDGs, their tar- tomary management, social arrangements and
gets and indicators, as vehicles for addressing the rights pertaining to water. Contributions cover a
needs and aspirations of indigenous peoples. wide array of approaches and issues, ranging
These shortcomings are multiple, and intervene from ‘worldviews’ to ‘rights-based struggles’.
at several levels.
Janet Armstrong, author and artist of the
This discouraging situation persists despite Okanagan Nation from western Canada, opens
ample data making it clear that indigenous peo- the volume with a poem called “Water is
ples figure prominently among the world’s most Siwlkw”. Siwlkw is an Okanagan word meaning
impoverished. In fact the Inter-Agency Support medicine, the highest and greatest form of med-
Group on Indigenous Issues observed that icine. As Janet herself declared when introducing
indigenous peoples “rank at the bottom of the her poem: “Water is a basic element of life and is
social indicators in virtually every respect” (IASG therefore sacred, as sacred as life itself. We are all
2005). equal in that. Life belongs to all. Water belongs
to all. We are water.”
Yet the Goal of MDG 1 is to “Eradicate extreme
poverty and hunger”, while the Target for Goal Evo Morales, indigenous leader and recently-
7 is to “Halve, by 2015, the proportion of people elected President of Bolivia, begins the publica-
without sustainable access to safe drinking tion’s first section on ‘Struggles for Recognition’
water”. The absence of indigenous peoples from with a powerful statement that cuts to the heart
these global development processes has a dual of the water issue for many indigenous peoples.
Opening
A single homogenising model that advocates munities may be the main providers of food in
water privatisation and free trade has hijacked Andean countries, but they are the last to benefit
the global water debate. Other visions of water from contemporary water development policies.
– its spiritual value, its social meaning, its cus- This is doubly ironic given the current discourse
tomary access – have been stifled. Indigenous on inclusion, equality and participatory manage-
peoples and the poor, despite the enormity of ment. But as Boelens reveals, the discourse on
their numbers and needs, have once more been equality has little to do with equity, and is pro-
left by the wayside. foundly averse to sustaining diversity. Following
Fanon, he unveils how the western ideology of
Vicki Tauli-Corpuz, recently elected chair of the equality is a thinly veiled vehicle for expressing
UN Permanent Forum on Indigenous Issues, superiority and imposing assimilation under the
argues for a human rights-based approach to guise of advancement and inclusion. The argu-
water. She demonstrates that the continuing ments and outcomes are not unlike those prof-
emphasis at the Second and Third World Water fered by scientists, whose claims to cognitive
Forums on profit-based water supply and man- superiority serve to justify their hegemony over
agement clashes with the growing international other knowledge systems. They also resonate
recognition of indigenous peoples and their with the discourse of neo-liberal economists for
rights. Indeed, even the dualistic notion of ‘pub- whom free market economies remain the only
lic or private’ that shapes so many debates about viable instrument for poverty eradication.
water access, remains inadequate and simplistic
in the face of the diversity of indigenous water The book’s second section entitled “Worldviews
management forms. and Water Management” presents a series of
case studies that contrasts sharply with the con-
For Pablo Solon, sociologist and indigenous peo- ventional discourse offered by international
ples’ water advocate, indigenous systems fulfil organizations, governments and the private sec-
water needs through community-level social tor. For indigenous peoples, the wise manage- 13
arrangements that are rooted in respect for the ment of water is not just an economic matter, but
interdependence of people and nature. Neither one that is first and foremost spiritual and social.
public nor private, they are at odds with the pre- Inspired by the example of her own people, the
dominant Eurocentric worldview, and merit con- Kankanaeys of Besao in the Philippines, Ellen
sideration on their own terms. Bang-oa illustrates how water is a responsibility
attended to by all members of society, both indi-
Continuing this analysis, Leonidas Iza, President vidually and collectively. This includes showing
of the Confederation of Indigenous Nationalities respect to the nakinbaey spirits who inhabit
of Ecuador, contrasts the dynamic, humanistic water sources and ensure their continued replen-
and spiritual notions of water shared by the ishment. Things associated with human or animal
Andean peoples of South America, with the nar- death must be kept away from water sources, as
rowly economic vision espoused by the World well as grazing animals such as the water buffalo
Water Vision. Proposals to ‘resolve’ the water cri- whose breath and excreta are considered partic-
sis proned by the latter document fail to recog- ularly offensive. Recognising the relationship
nise the real needs and aspirations of the indige- between forest and water, the iBesao also
nous and rural communities of the Andes, and observe rules and regulations governing the use
would place their economic, social and cultural and regeneration of forested lands. Finally, Bang-
well-being in jeopardy. oa describes the complex water management sys-
tem itself, demonstrating that water is truly a
Rutgerd Boelens, researcher at Wageningen communal resource with complex rights and
University, the Netherlands, and coordinator of responsibilities ensuring its continued flow and
the international program on Water Law and equitable distribution.
Indigenous Rights (WALIR), aptly draws this first
section to a close with an analysis of how policies Titling their paper after two ancestral deities of
that are believed to enhance inclusion can in fact the Metei people of Manipur in northeast India,
reinforce exclusion. Indigenous and peasant com- Roy Laifungbam and Anna Pinto outline the cen-
tral role played by water, and its harnessing hunter-gatherer peoples of southern Africa, it
through an ingenious system of canals, dykes and was the lack of water in the harsh Kalahari desert
reservoirs, in the emergence of the Metei Nation. that served to defend their territory from the
Managing water in the Imphal Valley was more incursions of those who did not possess the
than just an engineering tour de force. The wet- knowledge to seek out water and survive. But
lands and waterways that were created became when borehole technology made water easily
channels of exchange and communication available from underground aquifers, livestock
between clans and tribes, as well as between herders privatised waterholes and totally dispos-
human and spirit worlds. With the demise of this sessed the San of their lands. Nigel Crawhall fur-
system, due to the abolition of the labour system thers our understanding of these historical
that maintained it, the entire landscape is now events based upon work being done by the South
under threat from growing population pressures African San Institute with Khomani San. Ending
and land reclamation for urban expansion. on a positive note, he describes the successful
land claim granted to the Southern Kalahari San
Corinne Wacker describes the multiple ways that and the gradual return to the land of elders and
water is woven into the landscape, ritual life and youth alike.
day-to-day existence of the Tagmachig peoples,
who live in a remote mountain oasis in the Santos Augusto Norato from the Totonicapan
Ladakh region of the Indian Himalayas. In their community of western Guatemala provides us
cosmology that blends influences from the dis- with an overview of the Mayan community
tant cultural traditions of Iran, India, Tibet and organizations that guide the use and protection
Mongolia, the spiritual forces of water manifest of forest and water resources. Through water
themselves in a multitude of forms: through committees, the communities define and enforce
symbols that appear in the depths of the clear rights and obligations associated with water use.
glacier lake, bushes and trees growing by the vil- They coordinate collective labour and develop
14 lage springs, lizards emerging from the earth’s strategies to deal with the problems stemming
depths after winter hibernation, and the dark from population growth, the advance of the
and wild Indus River that carves an untamed agricultural frontier and increasing pressures on
course below and beyond the village’s perime- natural resources from trans-national corpora-
ter. As testimony to the intimacy of their relations.
tionship to water, the Tagmachig declare that it
is by maintaining a correct attitude and continu- Closing this section on Worldviews and Water,
ing their labour in the field that people ensure a David Groenfeldt offers a thoughtful essay on
continuing flow of water from their desert spiritual values in Western and indigenous soci-
spring to nourish crops and create the oasis upon eties. He notes that mainstream debates with
which their lives depend. respect to water confront those who see it as an
economic good with those who argue for its
Tshepo Kumbane recalls the autonomy of rural recognition as a social good or human right.
communities that once were able to secure the Spiritual perspectives rarely, if ever, receive seri-
greater part of their food and water from the land. ous consideration. While it is not uncommon for
But under the apartheid government communities Western environmental NGOs to abandon
in South Africa suffered dispossession. People were rationality in favour of a crusading discourse,
displaced from their original settlements, creating such fervour is reserved for emblematic species
dependency and despondency. The Water for Food such as whales, or mythical places such as tropical
Movement aims to break this cycle of apathy and forests, rather than a substance as ubiquitous as
helplessness by empowering people to value them- water1. The formidable challenge for indigenous
selves as well as the nurturing capacity of the land peoples is to resist pressures, from without and
and water of their homesteads. from within, to align with the Western model
and relegate spiritual values to a distant second
Joram/Useb from the Hai//om community of place behind economic gain.
Namibia offers a very different perspective on
the dynamics of water and territory. For the San, The final section of the book addresses the issue
Opening
of Water Rights and National Legislations. It forming the current legislation system calls
includes four contributions covering cases in above all for a dialogue between government
Bolivia, Ecuador, Mexico and Peru, provided by and indigenous / rural organizations to bridge
participants in the comparative research and the conceptual gap that separates the official
action programme called WALIR – Water Law view of indigenous issues from local realities.
and Indigenous Rights. Contributing to this dialogue, Guevara presents a
thoughtful review of key concepts such as
Efforts to recognize indigenous peoples’ owner- “indigenous peoples”, “rural community”,
ship of ancestral or other territorial lands and col- “peasant”, “identity” and “multiculturalism”
lective water resources are a challenge to and the meanings attributed to each of these
national legislations, which most often affirm the concepts by various stakeholders. Guevara adds
exclusive territorial right of the State. In the that the revision of legislative policy needs to
Andean region, despite the fact that most coun- take into account the “social life” of government
try Constitutions recognize the pluri-ethnicity of legislation. As he rightly observes, law is not a
their societies, domestic laws related to water rational and immutable system that regulates
generally ignore indigenous peoples’ rights in society impartially. On the contrary, it is a cultural
favour of those of the State. Critics observe that phenomenon and social product that acquires
during the neo-liberal trend of the 1990’s, State different meanings according to historical and
authority was often directed toward further local context. Thus, the important question is not
strengthening local elites and to enable (national whether laws have been enforced as intended by
and international) private enterprises to exploit lawyers, but understanding how they have been
peasant and indigenous owned natural resources enacted within the indigenous / rural community.
through water rights concessions. Given this
absence of legal protection, indigenous advo- The gap between official discourse and reality
cates are increasingly involved in the law reform has indeed often turned out to be dramatic.
process in search of pathways to duly recognize Francisco Peña offers an overview of the chal- 15
forms of legal pluralism. lenge of water management in Mexico by con-
trasting indigenous management with the cur-
In Bolivia, the on-going process of reforming rent water regulation framework. Between 1920
water legislation has made some headway but and 1970, the Mexican federal government
not without conceptual dilemma. Any effort to achieved the expansion of irrigated land and
recognize indigenous peoples’ rights in a legal increase of electric power supply for urban areas.
system is confronted with the challenge of defin- Behind this “success” story, however, lakes and
ing customary law. The fluidity of the concept wetlands disappeared, water sources were con-
makes it difficult for lawyers to determine rights taminated and indigenous communities were
and legitimate rights holders. In summarizing massively relocated by the creation of reservoirs.
the debates raised during the reform process, Nor have watershed councils, established by the
Rocio Bustamante presents a critical analysis of federal government during the 90’s to support
the challenges of this legal exercise and its possi- local water consumers, been successful in
ble adverse consequences for indigenous com- responding to indigenous peoples’ concerns.
munities. Bustamante concludes that the issue of Dominated by the federal administration and
legal pluralism raises the challenge of recognis- corporations, the bureaucratic approach taken
ing diversity as the basis of development. The by these Councils compartmentalizes water man-
success of legal pluralism thus lies in the delicate agement in sectors and fails to take into account
balance between the right to equity and the the indigenous view of water as an integral part
right to be different. of land and ecosystem management.
Indigenous peoples, peasants, rural communi- To conclude the section, Paulina Palacios profiles
ties… many terms have been used to describe several legal texts drafted by the Ecuadorian
Andean reality with varying connotations, each indigenous movement, thereby providing an
providing justification for diverging political pur- overview of the indigenous normative vision.
poses and agendas. For Armando Guevara, trans-
While customary law is specific to its locality,

indigenous communities have been collectively
exploring the possibility of drawing up a positive
law by identifying their common values, ethics
and norms. Palacios stresses that such exercise of
“codifying” customary law does not necessarily
generate a “static law” that would betray the
nature of indigenous peoples’ visions. As she
demonstrates, the five proposed laws do not dis-
sociate water management from the overall
question of land and ecosystem management.
Participation in the decision-making process and
prior informed consent on matters affecting their
territory are also core elements of such laws. For
Palacios, this endeavour for common lawmaking
by the indigenous community is the key to
achieving a pluri-national State.
16
REFERENCE LIST
Inter-Agency Support Group on Indigenous Issues, 2005,
Technical Position paper on the Millennium Development
ENDNOTES Goals and indigenous peoples. Annex to the “Report of the
(1) M. Roué (ed advisor), 2003, NGOs in the Governance of Inter-Agency Support Group on Indigenous Issues on its
Biodiversity, International Social Science Journal, No 178, 2004 session”. Permanent Forum on Indigenous Issues,
pp 126. Fourth Session. (E/C.19/2005/2 of 14 February 2005).
Opening
17
Water is Siwlkw
siwlkw 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
18 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
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
19
This song is the way
Jeannette C. Armstrong, February 2003
Jeannette C. Armstrong is a Canadian author and artist. She is Traditional Science Council Member
of the Okanagan Nation, international observer to the Continental Coordinating Commission of
Indigenous Peoples and Organizations, and executive director of the En’owkin International
school of Writing and Arts.
enowkin@vip.net
20
Struggles for recognition
21
Message on behalf of
the Indigenous Peoples
at the Third World Water Forum
Ladies and gentlemen, brothers and sisters of water,
I would like to congratulate the organizers of this thematic area for having included indigenous
issues in this World Water Forum.
According to the United Nations, indigenous peoples have suffered from a situation of
colonization or invasion and currently have a non-dominant status in society. It is true that
indigenous peoples have been and are continuing to be subjected to colonization, invasion and
exile 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 and
subjugated in our own countries comprise over half the world population.
22 There are two sessions on indigenous issues, among more than 350 sessions in the World Water
Forum. And how many indigenous peoples are there? Do you suppose that we are actually only
half of one percent of the world population?
World-wide, there are over one billion persons with insufficient or poor quality water. Most of that
billion are indigenous. Therefore, I feel that the first action that the organizers of the Third World
Water Forum should take is to recognize that indigenous peoples, small farmers and the poor are
not sufficiently represented here. We are not going to solve water problems without involving the
true stakeholders. Similarly, how many societal, rural and indigenous organizations are on the
World Water Council? None. So, if we are going to talk about actions and not just speeches, that
will have to change.
I don’t know how many of you have read the World Water Vision document approved in The
Hague at the second World Water Forum. Well, who approved that document? That vision? The
social movements, the participants in the Forum? Or the consultants hired by the World Water
Council? We have to abandon the practice of discussing among ourselves, and then having
consultants 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 are
mining, logging, electrical and municipal companies plundering the water resources belonging to
the rural and indigenous communities throughout this planet? This Forum has to approve a call
to the major trans-nationals, companies and mega-farms, to stop looting water from the
indigenous peoples. But that is not enough; it is necessary to take advantage of the time during
these two sessions on indigenous rights, to discuss how we are going to concretely and effectively
support indigenous movements in defending their water, fighting against pollution and
preventing privatisation of water.
We indigenous peoples do not want to be research subjects, but fellow combatants in the struggle
against the privatisation and commoditisation of water.
Here, we are all in favour of cultural diversity and the preservation of all forms of water
management. But what do we see in practice? There is one model – of privatisation and
generalization – that is spreading and pushing out the others. It is imposing itself because loans for
the water sector granted by the IMF and the World Bank stipulate that promoting privatisation of
the water sector is a necessary condition. So we have to speak clearly: the IMF and the World Bank
are against cultural diversity, and are opposing indigenous rights.
The other great danger is that water is being incorporated into free trade treaties. Europe has made
a proposal to open its agricultural market to Latin America if, in exchange, we will open up our
public water supply services to private European investment. This is also a way of putting an end
to cultural diversity.
The World Water Vision from The Hague says that, if we fail to accept privatisation, there will not
be 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’s
world and tomorrow’s as well. All we have to do is get it out of military budgets and put it into
water budgets. Stop spending on war and death and begin investing in water and life.
23
Evo Morales is the President of Bolivia. At the time of the Third World Water Forum, he was the
opposition 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 keynote
speaker at a number of world events including the World Social Forum of Porto Alegre.
24
When the water industry and its supporters run the World Water Forums,
there is a clear disconnect with the assertion of the UN Human Rights
bodies, indigenous peoples and civil society that water is a basic human
right. Neither indigenous peoples, nor those who are suffering most
from the water crisis are represented in the World Water Council or the
Global Water Partnership, the two organizations responsible for the
Second and Third World Water Forums.
Victoria Tauli Corpuz(1) is Chair of the UN Permanent Forum on Indigenous Issues, as well as a researcher
and activist. She is the founder and Executive Director of Tebtebba Foundation and is strongly involved
in the field of international indigenous issues, particularly relating to natural resources.
vco@skyinet.net
Introduction Convention on Biological Diversity

• UN Draft Declaration on the Rights of
A series of reports came out of the Second and Indigenous Peoples
Third World Water Forums. They examined the The ILO Convention 169(2), which is the only existing
nature of the global water crisis, drew up visions legally-binding instrument on Indigenous
for the future of the world’s water, and designed a Peoples up to the present, recognized our terri-
framework for action on how to achieve this vision. torial rights, particularly in its Article 13 (1),
The World Water Council and the Global Water Article 13 (2) and Article 14(3).
Partnership were mainly responsible for drawing
up these reports. During the forums these bodies Chapter 18 of Agenda 21, on the protection of
and their reports drew much criticism, mainly from freshwater resources, recommended the full
civil society participants, on the grounds that they public participation of indigenous people in integ-
mainly represented the views and interests of rich rated water resource management(4).
countries and the water industry. A small group of
indigenous peoples took part in both the forums Article 8 paragraph (j) of the Convention on
and also helped draw up the reports. We made our Biological Diversity refers to the need to respect,
own comments and observations and some of preserve and maintain the knowledge, innova-
these were captured in our statement, the tions and practices of indigenous peoples on the
Indigenous Peoples’ Kyoto Declaration on Water. conservation and sustainable use of biodiversity.
This paper is an attempt to elaborate further on The Draft Declaration on the Rights of Indigenous
the views presented in our statement. We can Peoples, which was adopted by the Sub-
not separate our efforts in asserting our rights to Commission on the Protection and Prevention of
water from our general struggle to have our Discrimination in l994, came about through the
fundamental rights as distinct peoples recog- active collaboration of indigenous peoples and
nized. Our commitments at the community level experts of the UN Working Group of Indigenous 25
up to the national and global levels and back to Populations. What makes this Draft unique in the
the grassroots are all interconnected. So I will cite history of the UN’s efforts to develop standards is
some examples of the nature of the issues we that it was created with the active participation of
face in relation to water, and our responses to the subjects of those rights. It also acknowledged
these issues. Emphasis will be on the analysis of and developed the concept of collective rights,
outcomes of these processes. whereas existing human rights instruments refer
to individual rights only. This Draft explicitly re-
cognizes the rights of indigenous peoples to their
waters, as seen in articles 25 and 26(5).
Gains for indigenous peoples While the Draft Declaration remains a draft up to
the present, it is already serving as the frame-
in the international arena work for indigenous peoples’ rights. The
Indigenous Peoples’ Rights Act (1997) of the
Through many years of involvement with various Philippines used it as a framework when the
United Nations bodies, agencies, and pro- national law was being drafted. This law came
grammes, including the world conferences in the into being because of the highly organized ad-
1990’s, we indigenous peoples have managed to vocacy and lobbying of indigenous peoples in
bring our issues to the table. Our involvement that country. This is a clear case where the gains
with the UN led to the emergence of hard and achieved in the UN were used to influence the
soft laws that acknowledged our basic rights to struggle at the national level(6).
our ancestral territories and resources, including
water. Some of these laws were:
• ILO Convention 169
• Chapters 18 and 26 of Agenda 21
• Article 8 (j) and Article 10 (c) of the
International processes Another recent process was the World

Commission on Dams (WCD). Joji Carino of
dealing with water Tebtebba was chosen to be one of the members
and participation of of the Commission in order to provide a voice for
indigenous peoples. She played a major role in
indigenous peoples ensuring that the experiences and recommend-
ations of indigenous peoples were integrated into
Shortly before the Earth Summit (United Nations the final report of the WCD. Tebtebba was among
Conference on Environment and Development) the co-organizers of the WCD’s joint consultation
in 1992, a series of events concerned with water on Dams, Indigenous Peoples and Ethnic
took place. The Brundtland Commission (The Minorities, held in Geneva from 31 July to 1 August
World Commission on Environment and 1999. The recognition by the WCD of the rights-
Development, 1987) identified water as a key based approach to development, which includes
global environmental concern in its report Our the right to free, prior and informed consent is a
Common Future. Then a Water and Environment key recommendation which enjoys strong sup-
Conference was held in Dublin in 1992. This con- port from indigenous peoples.
ference established what are now known as the
Four Dublin principles(7): This requirement gives indigenous and tribal
• Principle 1: “Freshwater is a finite and vul- communities the power to consent to projects
nerable resource, essential to sustain life, and to negotiate the conditions under which
development and the environment”; they can proceed. The effective implementation
• Principle 2: “Water development and man- of this practice marks a significant step forward
agement should be based on a participatory in allowing indigenous peoples to assert their
approach, involving users, planners and policy- right to their territories – which includes their
makers at all levels”; waters –, ensuring their genuine participation in
26 • Principle 3: “Women play a central part in decision-making processes and securing their
the provision, management and safeguard- long-term benefits.
ing of water”;
• Principle 4: “Water has an economic value No single UN body or program is responsible for
in all its competing uses and should be recog- water issues. This may be one reason why most of
nized as an economic good”. the international processes on water which came
after the Earth Summit were not organized by
As early as 1992 water was already beginning to the UN and did not fall under the leadership of
be considered as an economic good. The impor- the UN, even if various UN bodies played active
tance of securing freshwater resources was roles. However, this situation further reinforced
emphasized at the Earth Summit, which resulted the view that the role of the State is systematic-
in Chapter 18 of Agenda 21. At the 2nd Session of ally being undermined in favour of the market.
the UN Commission on Sustainable Development There is a fear that, if water ends up in the con-
(UN-CSD) in 1994, the rapid deterioration of trol of the private sector, and if the role of gov-
water quality and quantity in many states ernments is grossly undermined in terms of
emerged as a serious concern. A recommend- ensuring respect for the right to water, then the
ation to have a Comprehensive Assessment of weak and the poor will suffer. Decisions on how
Freshwater Resources of the World was agreed water should be developed are being shifted to
to, and this was subsequently prepared by the global bodies, like the World Trade Organization
joint efforts of UN agencies and programmes(8). or the World Bank. Clearly, there is a need for a
The assessment was presented during the 1997 mechanism that ensures a balance between the
session of the UN-CSD, which was a Special roles of the State, the market and local commun-
Session of the UN General Assembly, five years ities in water development.
after Rio.
Collaborative mechanisms and processes that Indigenous Peoples. The indigenous peoples and
emerged, such as the Global Water Partnership, their representatives (less than 10 in number)
the World Water Council, the Water Supply and participating in this session produced a report
Collaborative Council, and the three World that underlined the marginalisation of indige-
Water Forums, among others, all involved multi- nous peoples within the World Water Forum
ple stakeholders. But, as mentioned earlier, the process, and called for a more prominent role in
lead actors were global water corporations, the the future.
World Bank, donor agencies, professional assoc-
iations dealing with water and sanitation, acad- Indigenous peoples were more strongly repre-
emia, research institutions and think-tanks. sented at the Third World Water Forum through
a partnership with UNESCO, other indigenous
Neither indigenous peoples, nor those who are peoples’ organizations and non-governmental
suffering most from the water crisis, are repres- organizations, the WALIR (Water, Law and
ented in the World Water Council(9) or the Global Indigenous Rights) Program of the University of
Water Partnership(10), the two organizations Wageningen and the Secretariat of the Forum. A
responsible for the Second and Third Word Water two-day indigenous peoples’ preparatory meet-
Forums. Intergovernmental bodies only play a ing was held, where we discussed in more depth
supporting role, with the exception of the World our water issues, and linked these with the
Bank and the IMF. An important issue to consider agenda and program of the Water Forum. The
is how the participatory processes are decided. At Indigenous Peoples’ Kyoto Water Declaration
the Second World Water Forum, the World Water emerged from this process.
Commission was chaired by Ismail Serageldin,
Vice President of the World Bank. Michel
Camdessus, the former IMF Director, headed the
World Water Panel on Financing Infrastructure,
which produced the Financing for All report. With 27
all due respect to these personalities, it is hard to
The Second World Water
imagine that they can be honest brokers, because Forum and its outcomes
they need to protect their own institutions. This
might need to be clarified before the World Bank The Second World Water Forum had an over-
and the IMF can be free from suspicion of vested whelming presence of representatives of the
interest. water industry and so-called water specialists,
and very limited participation from indigenous
Indigenous peoples wanted to take part in these peoples. The documents arising from this forum
collaborative processes, but we did not have are clearly expressions of the views and interests
enough advance information, nor were the of the private sector. The outcomes included a
financial resources available to allow our partici- ‘Ministerial Declaration’ with no official status,
pation. In the 1990s, civil society actors, like the ‘Vision for Water in the 21st Century‘ and a
NGOs, indigenous peoples, and women became ’Framework for Action‘ to implement the Vision.
active players in a series of UN world conferences, The predominant view which underpins these
and limited resources were made available for documents is that water is an economic good,
their participation in the follow-up processes. and the failure to place a price on water that
But with the semi-privatisation of processes reflects its economic value in its various alterna-
related to water, the situation has changed. Now tive uses encourages wasteful and environment-
indigenous peoples and other civil society groups ally damaging use and results in its misallocation.
have to do their own fund-raising to be able to Water is regarded as a commodity that can be
participate. traded and sold.
At the Second World Water Forum (2000) in the This view is at odds with the way indigenous
Hague, a small group of indigenous peoples peoples regard and relate to water. Our waters,
were able to participate through a thematic territories and lands are the fundamental physi-
session organized by UNESCO on Water and cal, cultural and spiritual basis for our existence
and our identities as distinct peoples. Water for ples and other sectors directly affected by dam
us is sacred; it belongs to nature and cannot be projects. The prevailing view of water as an inte-
owned or turned into a commodity by any indiv- gral part of the basket of rights, which all peo-
idual, state or corporation. Our collective ples should enjoy, has been changed by the mar-
responsibility and obligation is to ensure the ket-centred paradigm promoted by the World
protection, availability and purity of water for Bank, which regards water mainly as an eco-
the present and future generations and for the nomic good. This underpins the proposals for full
rest of creation(11). cost recovery of economic costs and economic
efficiency. A paradigm that puts a premium on
the role of market forces will not attach much
Failure to look into the underlying importance to the role and participation of
causes of the water crisis indigenous peoples and local communities when
The World Water Vision describes the water crisis water policies and programs are designed.
in these terms:
• one out of five people does not have access There are many reasons for the degradation and
to safe and affordable drinking water disappearance of freshwater resources. The most
• half of the world’s wetlands are destroyed common, however, are deforestation, extractive
• water services are heavily subsidized by gov- industries, agro-chemical-based intensive agricul-
ernments ture, and the destruction of wetlands. Largely
• decrease of groundwater tables due to because of loans given to the timber industry,
unregulated access, affordable small pumps around five million ha. of primary rainforests are
and subsidized electricity and diesel oil degraded annually(13). Foreign debt is another key
• the management of water on a sector-by- reason why governments in the Third World
sector basis and highly fragmented institutions. resort to massive deforestation, conversion to
cash crop production or plantations, extraction of
28 These are, indeed, some of the problems. But the minerals, etc. They need to export raw materials
report lacks a historical, in-depth analysis of the and agriculture products so they can generate
underlying causes of this water crisis. It should foreign exchange to service their debts.
have looked more comprehensively into the sig- Indigenous peoples are among those who have
nificant social, political, economic, ecological, suffered most from this kind of development
cultural and even spiritual roots of the crisis. It is model, as their territories are often exploited.
not enough just to look into the technical, man-
agerial and economic aspects, and not analyse Intensive irrigation and the massive use of agro-
the frameworks used by the think-tanks and chemicals that accompanied the Green
donor agencies. There are precedents in other Revolution not only resulted in over-extraction of
inter-governmental processes, where serious groundwater and salination of agricultural soil.
research was the first step to be taken. The UN They also led to the pollution of groundwater
Forum on Forests, for example, carried out a with persistent organic pollutants. The extractive
study on the underlying causes of deforestation. industries, which also enjoy loans from donor
Other multi-stakeholder processes like the World agencies and private banks, have contributed sig-
Commission on Dams also presented a compre- nificantly not only to the pollution of waters, but
hensive report(12) on the history of dam building also to the destruction of groundwater aquifers.
and the role played by institutions like the World Many indigenous communities have lost their
Bank and the dam-builders in designing policies water sources through underground mineral
and programs. extraction and open-pit mining.
The documents failed to refer to any of the exper- The World Wide Fund for Nature, in its critique of
iences of indigenous peoples with water, the Second World Water Forum, also cited that the
whether historical or recent. Nor did the docu- failure to analyse the underlying causes of the
ments use the assessment and recommendations water crisis has “(…) led to a failure to recognize
of the World Commission on Dams report, which that it is investment in a healthy environment
reflected the situation faced by indigenous peo- that will ensure provision of reliable supplies of
clean water for people and nature. (…) It failed Nations. In the mid-1970s, the World Bank gave
to adequately consider how to maintain the loans to the Marcos government for the Chico
other values of health freshwater ecosystems, River Hydroelectric Dam Project. The whole coun-
such as the fisheries that sustain millions of the try was under martial rule at the time, and the
world’s poor(14)”. government thought they could decide how our
lands and waters were to be used, without our
Those who wrote the Water Vision, at least, consent. Gross violations of our civil and political
should have analysed the roles played by the rights as well as economic, cultural and social
World Bank and other donors in shaping govern- rights became daily occurrences and a resistance
ment policies and programs in the Third World(15). movement was launched to stop the project.
If the policies on water and also on irrigation,
energy, agriculture, and forestry had been exam- In l982, when the UN Working Group on
ined in greater depth, their impacts on water Indigenous Populations came into being, a repre-
scarcity and water pollution would have been sentative of the Cordillera participated and pre-
established. If the UN, the World Bank, the donor sented this case. It won international support
agencies, academia, and the water specialists had and, by the mid-80s the World Bank decided to
undertaken a more comprehensive analysis of cancel the project. This battle was won but not
the root causes, the Vision and Framework would without heavy sacrifices, displaced communities,
have come out differently. and divisions between families, clans and tribes.
Many of the sacred sites of indigenous peoples all

Water as an economic good and a over the world are water bodies. And these peoples
human need, not a human right will lay down their lives to ensure that these sites
Another criticism against the Forum reports is the remain intact and common. Where I live there is
reduction of water to an economic good, and the a lake, which is the main source of water for sev-
strong push for its privatisation and full cost eral villages. It is considered sacred, so nobody is 29
recovery. The right to water, which includes allowed to build a house or plough a field near
access and control over water resources, is one of the lake. Since time immemorial the iBesao(16)
the most basic demands of indigenous peoples. have been performing rituals to appease the
Water is an integral part of our ancestral territor- spirit protectors of the lake. Recently, when some
ies and resources, and when we claim our right to people from the nearby town tried to claim part
our ancestral territories, this includes our right to of the land around the lake as their private prop-
the water found there. The stories of our strug- erty, more than 700 people from seven villages of
gles to assert these rights, from colonization to Besao went to dismantle the fences and warn off
the present day, are replete with cases where the town folk.
water was the central issue. Colonizers and gov-
ernments have used the diversion of water away Those who argue that water is an economic good
from our territories as a tool to push indigenous propose to use market forces to establish the
peoples out. In l993 I participated in the Peoples’ ‘right’ price for what they say is an increasingly
International Tribunal in Hawaii, which looked scarce resource. But for indigenous peoples,
into the situation of the Native Hawaiian peo- water is a basic human right, and is essential for
ples, the Kanaka Maoli, 100 years after they were an adequate and decent standard of living,
forcibly annexed to the United States. Several according to the International Covenant On
testimonies presented by the elderly told how Economic, Social and Cultural Rights (ICESCR)(17).
the US government diverted waters away from
their traditional communities. International human rights treaties negotiated
after the ICESCR clearly guaranteed the right to
For us, the Igorot peoples of the Cordillera water, with groups historically subject to human
Region in Northern Philippines, the damming of rights discrimination (i.e. women and children)
our rivers was the key issue that pushed us to specifically protected(18).
fight against the Marcos dictatorship and the
World Bank, and finally to go to the United But the concept of water as a human right dis-
appeared from the outcomes of the Water market-centric mindset, blind to social and cul-
Forum. And the Ministerial Declaration, even if it tural implications, as well as potential ecological
was unofficial, agreed that water was a basic and health hazards(21).
need, not a human right(19). The same was true at
the Third Forum. If water is a human right then it Technological solutions to solve the water crisis
is the responsibility of the State to ensure that are also problematic, when they are associated
this right is respected and promoted. But if it is a with political decisions to set a price on water.
human need, those who can afford to pay for it Proposals for more investment in an engineer-
can enjoy it. ing-led, business-as-usual approach, such as
building more dams, pipes, irrigation systems
and toilets appear in most of the recommenda-
Framework for Action and world water tions for action. But as our indigenous colleague
actions from the Niger Delta said, although they
The Framework for Action, developed by the received the pipes, they cannot pay for the water
Global Water Partnership, set out a strategy for that comes out of them(22).
the realization of the World Water Vision by 2025
and prioritised actions to achieve this. Indigenous The concept of public-private partnerships
peoples were not involved in any of the processes (PPPs) is one of the key solutions proposed in
associated with this document. And some of the the World Water Actions report. Out of the 200
recommendations contained in the Framework partnerships identified in the report, there are a
can be detrimental to indigenous peoples. For few good examples, which involved women
example, the report identifies agriculture as the and which tried to implement an ecosystems
largest water user and recommends introducing approach. But on the whole, these partnerships
payment for water services. However, when gov- give lead roles to private, transnational and
ernmental authorities set prices, poor farmers national water corporations. And if the water
30 and indigenous peoples who are mainly engaged transnationals fail to earn the profits they have
in subsistence agriculture in the developing projected, they can just sell the company back to
world, can hardly afford to pay irrigation fees or the government, as happened in the Philippines,
are not interested in doing so especially when the with the Suez company(23).
quality of these services is poor and the revenues
are not invested to benefit their own systems.
They would prefer to continue with traditional,
rain-fed agriculture. Pricing of water services at
full cost will further marginalize the poor and The Third World Water Forum –
indigenous peoples. This is a part of the concern
expressed in our Declaration in Kyoto. governance and participation
Another proposal is the promotion of better The Third World Water Forum, according to Mr.
agronomic practices, such as improving crop vari- Ryutaro Hashimoto, Former Prime Minister of
eties. This could involve the use of biotechnology Japan and Chairman of the National Steering
to develop more drought-resistant varieties, or Committee of the 3rd World Water Forum, will
varieties that yield more mass per unit of water, “(…) play a critical role in solving water issues in
or to switch to crops that consume less water. This the 21st century (…)” The forum’s organizers,
seemingly sensitive proposal can nonetheless however, still consist of a consortium of govern-
amount to asking us to stop planting and eating ment, business and multilateral development
traditional crop while entailing extra economic organizations, thus limiting what it can achieve.
burden for the purchase of new variety seeds(20). Representatives of key stakeholders such as
In Asia, for instance, rice is a ritual and traditional indigenous peoples, local communities, environ-
crop for many indigenous peoples and many mental and development NGOs, social move-
communities still practice seed-saving of tradi- ments, small farmers and grassroots women’s
tional varieties. The use of genetically-altered groups, among others, are not centrally involved
crops is alarming, especially when it is driven by a in the processes of this forum.
Once again, I would like to point out that the two raises the issue of governance in relation to
key organizations established in l996, the World water. The United Nations may need to assess
Water Council (WWC) and the Global Water whether it should play a leading role and not
Partnership (GWP) do not have representatives abdicate its responsibility to the private sector.
from indigenous peoples and local communities.
The only reason we were able to participate in the
last two forums was through the intervention of
United Nations institutions, academia, NGOs and
individuals involved in these water processes. Ways forward
The Third World Water Forum is being described Defending one’s ancestral lands and waters
as the world’s biggest international water con- demands heavy sacrifices on the part of indige-
ference, as 12,000 scientists, ministers, represent- nous peoples. This is especially so in situations
atives of non-governmental organizations, private where space for serious dialogues is virtually
companies and international institutions particip- absent, and where force and deception are used
ated. Around 100 ministers attended. But, it can by those in power to quell any resistance to their
not be said that it met its goal of delivering con- projects. We are constantly seeking ways to
crete plans to tackle water-related problems, enable the modern world to accept and under-
such as achieving the UN’s goals of halving the stand our world views, cultures and lifestyles. It is
proportion of people without access to safe in this context that we see the value of bodies
drinking water and sanitation by 2015. like the United Nations and processes like the
World Water Forum. The UN has provided the
Even ministers who attended were highly critical opportunity for us to work more constructively
of the results, including their own Ministerial with governments, and to jointly develop inter-
Declaration. The main criticism was that, while national standards for the protection of our
water was acknowledged as an urgent global rights. These are also opportunities to present our 31
issue, there were no concrete, financial pledges to views and recommendations on other concerns,
achieve the MDG goal on water and sanitation. like biodiversity, water, and forests.
The industrialized countries, as usual, did not During the two last World Water Forums, although
promise any significant funding. Instead, the they were heavily dominated by the water indus-
World Panel on Financing Global Water try, donor community and water specialists, we
Infrastructure emphasized private investment in managed to carve out a few spaces where we
financing water and sanitation projects. The could discuss and present our own concerns. We
report was criticized for putting profit before firmly believe that these discussion forums
human needs and human rights. Its call for should be more open to the diversity of views
US$100 billion a year in order to meet UN targets and proposals on how the water crisis can be
on water was also questioned. This did not take resolved. It should be made easier for us to part-
into account the ecosystems framework and icipate more fully, not just because we need an
ignored community-based projects that ensured opportunity to present our issues, but because we
water availability at a very low cost(24). Because of believe that the rest of the world will gain signif-
massive protests by civil society participants icantly from our experiences and perspectives.
against this report and its proposals, the final
document of the forum merely mentioned it. In the light of our experiences in engaging with
the recent debates on water and our analysis of
When World Water Forums are mainly designed the outcomes, we reiterate the recommend-
and run by the water industry and its supporters, ations put forward in our declarations on water
like the World Bank and the IMF as well as so- and in the Indigenous Peoples’ Discussion Paper
called water specialists and experts, there is a Water, Human Settlements and Sanitation pre-
clear disconnect with the assertion of the UN sented at the 12th Session of the Commission on
Human Rights bodies, indigenous peoples and Sustainable Development(25). I will conclude this
civil society that water is a basic human right. This paper by quoting one of its messages:
“Indigenous peoples have the right to self-determ-

ination. By virtue of that right Indigenous peoples
have the right to freely exercise full authority
and control of their natural resources including
water. Such rights cover both water quantity and
quality and extend to water as part of a healthy
environment and to its cultural and spiritual values.
Indigenous interests and rights must be
respected by international agreements on trade
and investment, and all plans for new water uses
and allocations.
Indigenous peoples’ interests on water and custom-

ary uses must be recognized by governments,
ensuring that Indigenous rights are enshrined in
national legislation and policy.
Self-determination includes the practice of our

cultural and spiritual relationships with water,
and the exercise of authority to govern, use, man-
age, regulate, recover, conserve, enhance and
renew their water sources, without interference.
The promotion of respect and observance of

Indigenous peoples’ rights and fundamental free-
32 doms, in particular the right of self-determination
and the free use and control of their lands and ter-
ritories, is necessary for the use and conservation
of water and of water sources and resources.
International law recognizes the self-determin-

ing rights of Indigenous peoples to :
• Own, control and manage their traditional
territories, lands and natural resources;
• Exercise their customary law;
• Represent themselves through their own
institutions;
• Require free prior and informed consent to
developments on their land;
• Control and share the benefits of the use of
their traditional knowledge.
Governments should support the immediate

adoption of the UN Draft Declaration on the
Rights of Indigenous Peoples that will help
ensure the recognition and protection of
Indigenous peoples’ rights.”
environment of the areas which the peoples concerned

occupy or otherwise use”. Article 14 requires that
indigenous peoples’ collective “rights of ownership and
possession… over the lands which they traditionally occupy
shall be recognized” and that states “shall take steps as
necessary to identify” these lands and to “guarantee
effective 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 to
maintain and strengthen their distinctive spiritual and
material relationship with the lands, territories, waters and
coastal seas and other resources which they have
traditionally owned or otherwise occupied or used, and to
uphold their responsibilities to future generations in this
regard”. Article 26 states: “Indigenous peoples have the
right to own, develop, control and use the lands and
territories, including the total environment of the lands, air,
waters, coastal seas, sea-ice, flora and fauna and other
resources which they have traditionally owned or otherwise
occupied or used. This includes the right to the full
recognition of their laws, traditions and customs, land-tenure
systems and institutions for the development and
management of resources, and the right to effective
measures by States to prevent any interference with,
alienation of or encroachment upon these rights”.
Draft Declaration on the Rights of Indigenous Peoples, UN
Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994).
(6) SEC. 7. Rights to Ancestral Domains of Indigenous
Peoples’ Rights Act (1997) recognizes Indigenous peoples 33
right to water and states: “The rights of ownership and
possession of ICCs/IPs to their ancestral domains shall be
recognized and protected. Such rights shall include:
Right of Ownership, The right to claim ownership over
lands, bodies of water traditionally and actually occupied by
ENDNOTES ICCs/IPs, sacred places, traditional hunting and fishing
(1) This is a perspective from Tebtebba, an indigenous
grounds, and all improvements made by them at any time
peoples’ organization from the developing world which has
within the domains; …”
been engaged in some international events around water
Indigenous Peoples’ Rights Act (1997) can be downloaded
and in most UN processes which deal with indigenous
from www.ncip.gov.ph.
peoples’ rights.
(7) UNESCO-WWAP (2000), Water for People, Water for Life,
(2) As of October 2002, the following 16 states had ratified
Executive Summary, p.4.
ILO 169: Mexico, Norway, Costa Rica, Colombia, Denmark,
Ecuador, Fiji, Guatemala, The Netherlands, Dominica, Peru, (8) These were UNEP, UNDP, UNESCO, WHO and FAO.
Bolivia, Honduras, Venezuela, Argentina and Paraguay.
(9) The World Water Council, an international water policy
Austria and Brazil have ratified, but have yet to transmit
think tank, was established as an NGO in 1996 through the
their instruments of ratification to the ILO. The following
initiative of water specialists, the academic community and
states have submitted it to their national legislatures for
international organizations. It has 50 State governments as
ratification or are discussing ratification: Chile, The
its members.
Philippines, Finland, El Salvador, Russian Federation, Panama,
and Sri Lanka. Germany has adopted ILO 169 as the basis for (10) The Global Water Partnership is an organization created
its overseas development aid and the Asian Development with the joint support of a number of international funding
Bank and the UNDP have incorporated some of its substance organizations, which a mandate to support integrated
into their policies on Indigenous peoples. See, for instance, water resource management in developing countries. The
Asian Development Bank, The Bank’s Policy. organization gets funds from donor agencies of countries
like Canada, United Kingdom, Denmark, Netherlands,
(3) Article 13(1) requires that governments recognize and
Switzerland, Norway, among others, and the World Bank,
respect the special spiritual, cultural and economic
Ford Foundation and even the UNDP.
relationship that indigenous peoples have with their lands
and territories and especially “the collective aspects of this (11) Our traditional practices are dynamically regulated
relationship”. Article 13) defines the term ‘lands’ to include systems. They are based on natural and spiritual laws,
“the concept of territories, which covers the total ensuring sustainable use through traditional resource
conservation. Long-tenured and place-based traditional “the human right to water is indispensable for leading a life
knowledge of the environment is extremely valuable, and in human dignity. It is a prerequisite for the realisation of
has been proven to be valid and effective. Indigenous other human rights”.
Peoples’ Kyoto Water Declaration, www.tebtebba.org.
(18) For example, article 24 of the Convention on the
(12) This report stated that large dams affect critical, Elimination of All Forms of Discrimination Against Women
life-sustaining resources, such as land fisheries and the (CEDAW) requires states to ensure all women “enjoy
quality and allocation of freshwater, an increasingly scarce adequate living conditions, particularly in relation to …
and coveted resource. This report further acknowledged water supply” (see para 2(c)). Article 24 of the Convention
that despite the chronic underperformance of large dams in on the Rights of the Child stipulates that states must combat
the areas of energy production, flood control, irrigation and disease and malnutrition “through the provision of
overall economic efficiency, there is still a strong bias adequate nutritious foods and clean drinking water” (see
towards building large dams. The social and environmental para 2). Thus, it can be said that the right to water is well
costs of large dams, which includes large-scale displacement established under international law.
of communities, inadequate compensation and resettlement
(19) For Maude Barlow and Tony Clarke: “The story of what
plans, loss and destruction of livelihoods, permanent
happened at the World Water Forum is the story of the
transformation and loss of forests, farmlands, floodplains,
separation of water from the land and from ‘the commons’ to
pastures, wetlands, and biodiversity, among others, are also
which it belongs. It is also a denial of historic benchmarks for
well-documented. Dams and Development: A Report of the
democracy enshrined halfway through the 20th century (…)
World Commission on Dams (2000),p.20.
the Universal Declaration of Human Rights and its
(13) This was the estimate of the World Rainforest accompanying International Covenants on Economic, Social
Movement (WRM) in 1990 in their report on Rainforest and Cultural Rights and on Civil and Political Rights were
Destruction (1990). p.51. adopted as the cornerstones of the United Nations (…) Yet at
the dawn of the 21st century, something as fundamental as
(14) WWF Information Documents, What is the World Water
water is no longer recognized as a universal right by the
Forum, 2003.
dominant economic and political elites. Being designated as a
(15) The World Bank, IMF and other multilateral and need, water has been subjected to the supply and demand
regional banks have the capacity to persuade or force forces of the global marketplace, where the distribution of
governments to comply with privatisation schemes. resources is determined on the basis of the ability to pay”.
Countries under structural adjustment programmes have to Maude Barlow and Tony Clarke, Blue Gold, 2002, p. 80.
34 adhere to conditions such as ‘public sector reform’ if they (20) Improving plant varieties through biotechnology poses
wish to obtain loans for infrastructure development. This actual and potential ecological, social and health problems.
means privatisation of state-owned companies. According to The genetic engineering and planting of seeds and trees in
Friends of the Earth, the poorest countries, like publicly-funded Consultative Group on International
Mozambique, Benin, Niger, Rwanda, Honduras, Yemen, Agricultural Research (CGIAR) bodies and private
Tanzania, Cameroon and Kenya, were forced to privatise laboratories are creating problems like the genetic
their water supply under pressure from the IMF and the contamination of traditional species. This is precisely the
World Bank. These countries privatised as a condition for reason why the precautionary principle was enshrined in the
receiving credits from the IMF’s new Poverty Reduction and Rio Declaration in l992 and why the Biosafety Protocol was
Growth Facility. Water privatisation leads to further poverty, formulated.
as families can no longer afford to pay for water. IMF and (21) We saw how the Green Revolution brought in hybrid
WB conditions were imposed in Ghana in May 2001 and as a plant varieties, which required massive irrigation water and
result there was a 95 percent hike in water fees. Friends of heavy use of agro-chemicals which are now the major
the Earth, International Secretariat (2003), Water Justice for pollutants of groundwater. We have seen how the forest
All: global and local resistance to the control and industry facilitated deforestation of our primary forests and
commodification of water. Issue 102, Amsterdam. p.5. changed indigenous tropical trees with fast-growing trees,
which consumed more volumes of water, through the
(16) iBesao means the people of Besao. Tropical Forestry Action Plans.
(17) The International Covenant of Economic, Social and (22) Our traditional knowledge developed over the
Cultural Rights (ICESCR) does not contain an express millennia should not be compromised by an over-reliance on
guarantee of a human right to water. However, articles 11 relatively recent and narrowly defined western reductionist
and 12 of the ICESCR provide an implicit guarantee. Article scientific methods and standards. We support the
11 outlines a number of rights connected with the implementation of strong measures to allow the full and
realization of the right to an adequate standard of living equal participation of Indigenous Peoples to share our
“including adequate food, clothing and housing”. Although experiences, knowledge and concerns. The indiscriminate
the right to water is not expressed in this list, it clearly falls and narrow application of modern scientific tools and
within the category of rights essential to an adequate technologies has contributed to the loss and degradation of
standard of living. The right to water is also linked with the water (para 15, Indigenous Peoples Kyoto Water
right to health, enshrined in article 12 of the ICESCR. The Declaration).
Committee on Economic, Social and Cultural Rights, which is (23) Suez was formerly named Lyonnaise des Eaux. The vice-
responsible for monitoring state compliance with the president of Suez, Rene Coloumb, is the President of the
ICESCR, endorses this view. In a recent decision it stated that World Water Council.
(24) The World Wide Fund for Nature in their assessment of

the Third World Water Forum said that: Ministers from
industrialized countries also criticised the final ministerial
declaration. Among the criticisms were the failure to mention
the impact of climate change on sea levels, which threaten
some countries with drought and flood; gender issues since
women in many poor countries are forced to walk long
distances to carry water; and water management through
poverty reduction. “What was missing was very important”,
said Agnes Van Ardenne-van der Hoeven, Dutch minister for
development cooperation. “It is important to consider in
what way the rich world can change its policy and support, in
an indirect way, poverty reduction.” WWF Information
Documents, What is the World Water Forum, 2003.
(25) E/CN.17/2004/10/Add.4, Contribution by indigenous
peoples: Water, sanitation and human settlements. This is a
paper prepared by Tebtebba Foundation and the Indigenous
Environmental Network for CSD 12. Parts of the section on
Conclusions and Recommendations are lifted and included.
35
To speak of indigenous peoples and water is to speak of cultural

diversity. Original inhabitants share the same philosophy about water,
36 but they practise diverse forms of water management, according to their
own differing realities, histories and experiences. In the indigenous
world, there is no single ‘model’ for using water resources, but multiple
alternatives and forms of management that change from region to
region and from time to time. The common element underlying these
diverse forms of water management is ‘respect for water’, considering
water resources not as an input or a commodity, but as a living part of
Nature, as a being with which one must interact in order to ensure the
rights and participation of all living beings.
Pablo Solón is a sociologist, economist, film producer and author of several publications on water and
indigenous rights. He is the Executive Director of the Solón Foundation, that takes active part in the
Commission for Integrated Water Management in Bolivia. Solón has participated in the modification of
the drinking water law and the water exportation law in Bolivia.
agua@funsolon.org
The way water is distributed, the ways people water supply systems, although both are ‘non-
contribute to and are compensated by their public’. The former aim for investment payback
water distribution, as well as conflict resolution, and the greatest possible profit, whereas social
administration, access rights, technological man- water management systems aim to meet the
agement, etc., vary from place to place. But the people’s needs. There is not only the public sector
essence of their vision remains inalterable. It is and the private investor, but also the community-
like the water cycle, following multiple pathways social stakeholders. Indigenous systems fit into
and taking manifold forms, but it is always this third category, and their particular strength
Water. is that they aim to care for all living beings, and
for the Earth itself.
This cultural diversity regarding water is practi-
cally left out of most national and international If we assume that indigenous systems are part of
policies and norms for water resources. The dom- this extensive group of community-social sys-
inant vision, in the present globalised world, is tems, we will see that we are not talking of a
that water must be viewed, above all, in its eco- marginal sector, or a leftover from past history,
nomic dimension, assuring a price that will but an essential, fundamental sector. The solu-
ensure total cost recovery, plus a profit to encour- tion for water problems will not come from pri-
age new private investments. The solution pre- vate investors or public bureaucrats, but from an
sented by the 2000 World Water Vision from the increasingly prominent role played by commu-
Hague(1) or the Camdesus Report(2) is that, with- nity managers alongside society’s participation in
out new private investments in the sector, it will and oversight of public governance.
be impossible to guarantee the principle of
water for all. Consequently, these policies pro- An essential, fundamental problem for humankind,
mote a series of incentives and guarantees for such as access to water, can be resolved only by pro-
private investors to put money into water. moting society’s broadest possible participation.
Indigenous systems emphasize such participation, 37
Traditional water management knowledge and presence and monitoring. By contrast, private-
practices are neglected and often even blamed investor options cut the public off from this rela-
for waste and poor efficiency in water utilization. tionship, making people think that the problem
When traditional management is acknowledged, lies simply in paying a water bill.
this is normally to create reservations where
indigenous rights and knowledge are allowed, Decisions about water management and policies,
within a small, isolated area. Indigenous systems laws, contracts and projects promoting the com-
are seen as something from the past, to be moditisation and privatisation of water must be
phased out. amply discussed and decided by the people. In all
areas, but especially regarding water, these deci-
This concept proposes a single model, or rather the sions cannot be made behind the society‘s back.
dominant model: privatisation or commoditisa- Applying democracy to water is an essential prin-
tion of water. The Camdesus Report recognizes ciple that must be learned from the indigenous
that there are public systems, but its conclusions vision and spread throughout the world. In most
emphasize private intervention. When it pro- developing countries and many supposedly devel-
motes the Public-Private Partnership, the empha- oped ones, significant decisions about water
sis is on the role of and advantages to be granted resources are made without adequate informa-
to the private partners. tion, debate or consultation with the public.
Community, indigenous and traditional systems If we truly respect democracy for a people, a
are generally ignored. In the dominant mindset, nation or a community, it is not possible to grant
there is only public or private. Community sys- foreign aid or loans to a country on the condition
tems, since they have no legal standing as ‘public’, that they privatise water services. The World
are often lumped into the private category. Bank, multi-lateral banks and some sectors of
However, there is a great difference between pri- international co-operation may think that the
vate investors in the water sector, and community best way out is to privatise water, but they should
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 that
international agencies do not link foreign aid to
privatisation and commoditisation of this vital
resource.
Similarly, if water is included in free trade

treaties as a commodity, a water supply service,
an environmental service or external investment,
this jeopardizes the democratic management
of water. The weight and obligations of these
free-trade treaties (WTO, FTAA, FTTs(3)) are so
burdensome that they ultimately overrule
national constitutions and laws. When a country
contradicts what it has signed in a free trade treaty,
it is liable to be sued before an international
arbitration panel such as the World Bank’s
ICSID(4). This is the case for Bolivia, currently facing
a lawsuit by the US trans-national, Bechtel, for
US$25 to 100 million for breach of contract in
having amended the law promoting privatisation
of water supply services.
38 In summary, imposing laws, conditions on loans,

and the inclusion of water in free trade treaties
not only endangers democratic management of
this fundamental resource, but eliminates cul-
tural diversity by imposing one model over the
others. It standardizes water management, put-
ting an end to centuries of social, community
water management, of which the indigenous
peoples are living exponents.
ENDNOTES
(1) World Water Vision. Document presented as the outcome
of the Second World Water Forum, The Hague, 2000.
(2) Michel Camdessus was Executive Director and President
of the International Monetary Fund. The World Water
Consensus and other institutions commissioned him to
prepare a keynote paper for the Third World Water Forum,
entitled: ‘Financing Water for All’.
(3) WTO: World Trade Organization. FTAA: Free Trade Area
of the Americas. FTTs: bilateral or regional free-trade treaties.
(4) International Centre for Settlement of Investment
Disputes
39
Irrigation system managed by indigenous communities, Ecuador – © R. Boelens
Starting with a brief overview from an Andean viewpoint, the authors

propose a critical reading of several statements by the Second World
Water Forum in The Hague. The concepts of the ancestral inhabitants of
40 the Andes regarding nature, water and community management are
fundamental to a more integrated vision of water management for the
planet as a whole. Their testimony may reveal a paradigm for equity and
development which takes identity into account.
Leonidas Iza is the President of CONAIE (Confederation of Indigenous Nationalities of Ecuador) and
takes part in the inter-institutional initiatives of WALIR (Water Law and Indigenous Rights) and the
Andean Vision of Water. He is a Kichwa leader from the province of Cotopaxi, and was previously a
member 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 jointly
prepared by CONDESAN, CGIAB, CAMAREN, CIED-Peru, Sustainable Chile, Agualtiplano, CIPCA,
IPROGA, and the Solón Foundation, with support from the Minga initiative of IDRC-Canada.
The Andes Many techniques were used by Andean women

and men to manage water and create croplands,
The Andes mountain range bears steadfast wit- using the particular water systems for diverse
ness to the origin and development of one of the natural conditions, such as the waru waru, camel-
most outstanding historical processes of the lón or sucaqollu seedbed / berms for floodplains
ancient world, which led to the emergence of sev- around Lake Titicaca; the qocha ponds to catch
eral civilizations. This was made possible by the rainwater, and the better-known farming ter-
manner in wich, over thousands of years, the orig- races or andenes to take advantage of steep
inal societies learned to use, transform and con- Andean mountainsides.
serve natural resources, to organize their territory
and to generate social and economic mechanisms Nowadays, most of the indigenous expertise
uniquely suited to the Andean ecosystem. used to build reciprocal coexistence with Andean
environments is in disuse, the technologies aban-
doned and the people who made them possible,
The Andes mountain range disenfranchised.
The Andes range runs north-south, parallel to the
shores of the Pacific Ocean, covering 70 degrees
of latitude along the western edge of South The Andean population
America. It is 7250 km. long, occupying a continu- In the Andes, for over 20,000 years, the people
ous area of over two million square kilometres. established a lifestyle based on sustainable agri-
culture and livestock management. This popula-
As a region, the Andes have some of the greatest tion constituted a society that maintained a well-
environmental and geo-morphological diversity balanced relationship with the environment, based
in the world. In view of its enormous length from on values of complementarity and reciprocity.
north to south, stretching through all climatic
zones, and diverse vegetation, from the equator Today, almost all indigenous peoples in the 41
to the Antarctic, as well as from sea level up to Andes share a similar set of problems regarding
eternally snowcapped summits, it is not surpris- their social, political and economic situation as
ing that the Andes contain the world’s most colonized, marginalized population groups.
diverse range of types of landscape, climate and
plant communities.
The geo-morphological and climatic complexity

of the Andes currently seems to be a constraint, Water in the Andean
limiting the region’s development. The modern
world does not yet know how to make full use of worldview
the region’s diversity. In Antiquity, Andean
America’s geographical and environmental con- Although the visions of water in the Andean
straints were turned into advantages, by making region have particularities according to the dif-
use of the opportunities offered by plants, ani- ferent indigenous cultures, the diversity of eco-
mals, earth and water. logical areas, the different locations of basins,
and the levels of social organization (communi-
ties, hamlets, villages, ayllus, etc.), there are com-
Transforming constraints into opportunities mon denominators that must be maintained and
In addition to the steep slopes and unpredictable respected. For Andean peoples, water is much
climatic changes characterizing the Andes, scarcity more than a natural resource:
of water is one of the greatest challenges to sur-
vival. To mitigate this situation, Andean indige-
nous populations developed technologies suited Water as a living being
to their physical, ecological and cultural surround- In many Andean communities, water is viewed as
ings, and even moved huge amounts of earth and a living being, providing life and supporting the
water to create sustainable agricultural niches. movement of the universe. One has a dialogue
with water, treats it affectionately, and rears it Water as a creative, transforming being
like a growing creature. This vision has been a Water follows natural laws, according to sea-
fundamental factor in suitable harvesting, con- sonal cycles and territorial conditions.
servation and reproduction of water resources. Sustainable water use implies generating and
applying knowledge and skills obtained over the
centuries, and building water infrastructure to
Water as a divine being make it possible to harvest and distribute water,
According to ancient traditions, passed down in on the basis of efficient, joint management.
many contemporary communities, water origin-
ated from Wirakocha, the God who created the
universe, who impregnated Pachamama (Mother Water as social re-creation
Earth) and made it possible for life to reproduce. Water is a foundation for re-creating diversity
Therefore, water is a divinity, present in lakes, over space and time, in community organiz-
lagoons, the sea, rivers and all bodies of water. ations, in people’s participation, enabling commu-
nities to practice self-determination, through an
ongoing dialogue and exchange with Nature.
Water as the basis for reciprocity
and complementarity
Water must play a social role, considering the in-
tegration of living beings, and the co-ordination
of Nature with human society. It is the blood of the The reality of the context of
Earth and of the Andean universe. It is important
in order to facilitate reciprocal practice in Andean the World Water Vision
communities. It must order people’s lives, and
present differences not in terms of opposition but The World Water Vision, approved by the Second
42 as complementary elements, enabling conflict res- World Forum in The Hague (March 2000) not only
olution on the basis of community agreements. ignored the outlook of rural and indigenous peo-
ples in the Andes and the world, but even
ignored their survival. The Vision from The
Water as a universal community right Hague, which was to be turned into an
Water belongs ‘to everyone and to no one’. It International Action Plan in Kyoto (March 2003)
belongs to the Earth and to living beings, includ- threatens conservation and sustainable use of
ing human beings. Therefore, it is critical to dis- water resources on an international scale, and
tribute it equitably according to community especially for countries with highly significant
needs, customs and standards, and according to indigenous populations, such as in the Andes.
cyclical availability.
In these countries, laws on natural resources,
especially regarding water, fail to consider the
Water as an expression of flexibility vision, culture and proposals of indigenous and
and adaptability rural folk regarding one of the millennium’s most
Water behaves according to ecosystems, circum- strategic resources. They fail to respect the rights
stances and situations, without following rigid and common-law practices of indigenous peoples.
norms. It depends on the weather, climate and This reality is all the more alarming when we
terrain. Andean society, like water, is continually see that indigenous and rural people’s water
open to whatever it has to face, selectively incor- management sustains national food security.
porating elements from other cultures and
human groups to supplement their own culture. We are concerned mainly by four proposals in the
Hague World Water Vision:
• Reducing the use of water in the agricultural
sector by widespread use of trans-genetic
crops: This proposal for a way to use water
efficiently, strikes directly at the immense bio-
diversity of native crops in the Andes. It would guarantee its equitable availability to assure the
make entire populations dependent on existence of all the planet’s living beings.
biotechnology companies, undermine their Therefore, it is crucial to assure and protect water
food security and sovereignty, and violate the systems, both in their geographical setting and
precautionary principle regarding such crops. their natural cycle, through consensus-based
• Reallocating water from lower-value uses actions and mechanisms that keep ecosystems,
(e.g. household farming) to higher-value uses plant and animal species and community life
(large-scale agriculture, industry and water intact, recreating their cultural identity with dig-
supply): This proposal would lead, in the nity. Water is the Earth’s heritage and belongs to
Andean regions, to destroying small-scale all forms of animal, plant and human life.
family farm production, which is the basis for Therefore, any legal framework regarding water
their livelihood and culture, boosting migra- resources must be based on this principle.
tion to cities and generating new pockets of
poverty there.
• Making private investment the driving force Water as public domain
to influence solutions to water problems: This This principle entails defining water, in constitu-
proposal, which is the basis for many official tions, as a public asset under the control of soci-
policies in the Andean countries and the world ety at large. At the same time, equitable usage
over, leads to privatisation of water, relieving mechanisms must be formulated that will be
the State of any responsibility to water users, responsive to the needs of Nature and of human
and artificially generating a demand for big communities, with priority for the rights of liveli-
business at the expense of most of the world’s hood, food sovereignty and local development.
population, especially indigenous and peasant
communities.
• Charging the total cost of water: Charging Water as common property, not a commodity
this in a context of privatising the resource, Water hoarding by the most powerful sectors of 43
while appealing to private investors, jeopard- the economy, such as mining, industry, agri-
izes the availability of water to maintain business, export and so on, acts to the detriment
ecosystems, restricts people’s access to this of most users and of Nature itself. Therefore, no
resource, and transforms water into a com- company, national or transnational, or any private
modity, no longer available for public use as person, has the right to appropriate water own-
a national asset, common-law right or collec- ership or hoard its usage for private profit at the
tive right. expense of the rest of society. Because water is
public domain, it is a life resource that cannot be
reduced to a single commercial value, subject to
market laws. Therefore, water cannot be dealt
with in free trade treaties such as WTO, FTAA, or
Proposal for action based on bilateral agreements.
Andean visions
Re-valuing Andean expertise,
How to respect the visions of indigenous and technologies and organization
peasant populations of the Andes, strengthen The lore of the Andean world and their techno-
their identity, assure their rights and conserve logical and social systems for water management
water resources? We feel that the following are grounded in the principle of reciprocal co-
principles are fundamental: existence with Mother Earth and in collective
ownership of water, based on their own legal
and social system. These factors have been able
Water as common heritage to guarantee the sustainability of ecosystems
To strengthen integrated water management, from time immemorial and therefore must be
any action plan regarding water must be oriented preserved, respected and recognized. Traditional
toward protecting and conserving it, and must water management systems, developed and valid-
ated over hundreds of years, but nowadays set

aside, are proven alternatives for water resource
sustainability. Therefore, they must be better
understood, valued, recovered and disseminated
as technologies for sustainable development.
Integrated, participatory management systems

Water management systems must be based on a
holistic concept integrating the watershed terri-
tory, with compatible uses and sustainability of
the resource. The prioritisation of water uses
must be based on participatory mechanisms that
enable water conservation and equitable access.
Sustainable management projects require public
information on the current status and availability
of surface and ground water. This information is
currently almost non-existent, not systematized
and difficult or costly to access.
Participatory institutions and societal oversight

Legislative norms and water management forms
must guarantee that water is available in terms
of volume and quality, to ensure the sustainabil-
44 ity of ecosystems and human communities and to
satisfy their needs. Therefore, systems of govern-
ance, both at the basin level and nationally, must
be based on existing local water authorities, such
as indigenous and rural communities, irrigators’
associations, and other water users. Governments
of Andean countries must respect and value the
original holistic rights and management arrange-
ments of indigenous and rural communities,
which must be recognized as common heritage.
Suitable economic policies

All public investment policies must consider
water conservation as a priority, with sustainable
management and local and regional develop-
ment policies based on indigenous and rural uses
and customs. Any private investment in the
water sector must be subject to such criteria. In
Andean watersheds, water resources are gener-
ated in the highest areas, but generally benefit
the lowlands. Water policy must prioritise suit-
able mechanisms to benefit all equitably, guaran-
teeing better quality of life for the people living
in the high-altitude areas, who are the most
under-privileged.
45
Indigenous women claiming water control rights, Licto, Ecuador – © R. Boelens
46
In former days, indigenous water property rights were taken away

through violence, conquest, colonization and oppression. Although
violent take-overs have not disappeared, the keywords in today’s society
are 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 which
model? Inclusion in what? Participation in accordance with whose
objectives, visions and terms?
Rutgerd Boelens is a researcher at the Department of Environmental Sciences / IWE, Wageningen

University, The Netherlands, and coordinator of the international action-research program WALIR –
Water Law and Indigenous Rights.
Rutgerd.Boelens@wur.nl
In many regions of the world, peasant and indige- The program – Water Law and Indigenous Rights.
nous water management systems are the founda- Towards recognition of local and indigenous
tions that sustain local livelihood and national rights and management rules in national legisla-
food security. In most Andean countries, for tion (WALIR) – aims to help to counter the above-
example, indigenous and peasant communities mentioned discrimination and injustice. In this
are the main providers of food for the national paper, we outline some of the challenges of this
populations. Therefore, security of access to action-research, exchange and advocacy program,
water and the means to manage their water sys- which has been set up recently. Although the
tems is of crucial importance. Despite this fact, investigations also cover Mexico and the United
millions of indigenous water users find them- States, its main focus of action is in the Andean
selves structurally among the poorest groups of countries: Peru, Bolivia, Chile and Ecuador.
society. Moreover, they are usually not repre-
sented in national and international water deci- The article will first address some basic back-
sion-making bodies. This contributes to a situa- ground features of Andean water law, water pol-
tion of increasing inequality, poverty, conflict and icy and local rights. Next, it will refer to the
ecological destruction. On top of the historical, action-research program and elaborate some of
extremely unequal distribution of access to water, its key conceptual challenges: indigenous water
today indigenous and customary water rights in rights and management rules, official recogni-
Latin America and elsewhere are increasingly tion of local socio-legal repertoires, and the
under pressure. effectiveness of legal strategies for solving water
conflicts and rights issues. The intention is not to
In this context, it is alarming that, having exam- give definite answers, but to clarify important
ined the Second World Water Forum documents, questions and dilemmas. Finally, the article will
participants reached the conclusion in their final focus on the problem of inclusion-oriented water
statement that “(…) indigenous peoples and law and policy strategies: the tyranny of these
their unique systems of values, knowledge and modern equality and participation discourses, 47
practices have been overlooked in the Global which deny local and indigenous water rights,
Water Vision process. The session concludes that management rules and the construction of their
there is an urgent need to correct the imbalance own livelihood strategies.
of mainstream thinking by actively integrating
indigenous women and men in subsequent
phases, starting with the Framework for Action”
(Second World Water Forum, 2000).
While this attention was lacking in the carefully

Notes on the Andean context
prepared, official, March 2000 debate, the situa- Currently, the context for water rights and man-
tion in the field is far worse. Even when indige- agement rules is changing rapidly in the Andean
nous rights and water management practices are countries. Increasing demographic pressure, and
not simply obstructed by national legislation and the processes of migration, transnationalisation
intervention policies, attention to the subject is and urbanization of rural areas, among others,
negligible. Governments have paid it mere lip are leading to profound changes in the agrarian
service. Most policies and legislation do not take structure, local cultures and forms of natural
into account the day-to-day realities and specific resource management. Newcomers are entering
contexts of indigenous groups. The Forum rightly the territories of peasant and indigenous com-
concluded that “strong measures should be munities, often claiming a substantial share of
taken to allow indigenous peoples to participate, existing water rights while neglecting local rules
more actively sharing their specific experience, and agreements.
knowledge and concerns in the Global Water
Vision and ‘Framework for Action’” (ibid.). The Andes is also going through a period of
aggressive, neo-liberal water reform. It is common
to see that powerful stakeholders are able to
influence new regulations and policies, or monop-
olise water access and control rights. National and claims for more equal water distribution, and for
international elites or companies use both State the legitimisation of local authorities and norm-
intervention and new privatisation policies to nul- ative frameworks for water management. But
lify and appropriate indigenous water rights(1). why, particularly, the theme of water rights?
But at the same time, new opportunities for cus-

tomary and indigenous cultures and rights systems
are appearing. It can be observed that most
Andean countries have accepted international Water rights, indigenous
agreements and are working towards constitu-
tional recognition of ethnic plurality and multi- struggle, action-research
culturalism (or interculturalidad). At a general
level, ‘indigenous rights’ are associated with, or
and debate
considered to be, ‘human rights’. However, when
it comes to translating such general agreements In these times of growing scarcity and competi-
into practice, particular local and indigenous tion for access to water resources, water rights
forms of water management (especially water have become a pivotal issue in the struggle of
control rights) tend to be denied, forbidden or local indigenous and peasant organizations to
undermined in specific legislative fields, such as defend their livelihoods and secure their future
water laws and policies (Bustamante, 2002; (see Vincent, 2002). Water in Andean commun-
CONAIE, 1996; Gentes, 2002, 2003; Getches, 2002, ities is often an extremely powerful resource.
2003; Guevara and Urteaga, 2002, 2003; Pacari, Apart from being a foundation for productive
1998; Palacios, 2002, 2003; Peña, 2004). social and religious practices and forging the
community’s identity, the collective nature of
In the Andes and elsewhere, the denial of con- water by definition forces people to build strong
48 temporary forms of indigenous water manage- organizations. In most cases, the resource can be
ment is often combined with a glorification of managed only by means of day-to-day collective
the past: “Incas yes, Indians no!” (Méndez, 2000; action. Collaboration, instead of competition, is
Almeida, 1998; Baud, 2003; Gelles, 2000; Flores the only way to survive and secure water rights in
Galindo, 1988). The attitude towards contem- this extremely adverse environment.
porary indigenous communities tends to be folk-
loristic. The use of either romanticized, paternal- This ‘forced’ collective action to manage the
istic or racist approaches is very common. Policies resource should not be romanticized, and is not
are oriented towards an imagined concept of embedded in a presumed ‘Andean solidarity’. It
‘Indianity’ or stereotype towards the assimilation is a form of local, ‘contractual reciprocity’,
and destruction of indigenous water rights sys- aimed at sustaining and reproducing local
tems. water management systems as well as the house-
holds and communities that depend on them
As a result of the above, Andean countries (Boelens and Doornbos, 2001; Mayer, 2002; Ruf
are replete with examples of the negative and Mathieu, 2001). Apart from its local orienta-
impacts on organization and infrastructure of tion, this collective reciprocal action may also cre-
many top-down water programs. They usually ate a strong basis for broader political alliances, for
fail to understand the dynamic and plural nature example in backing particular water policies and
of indigenous rights and management rules. opposing forms of legislation and policies that
deny indigenous or customary rights.
In the last decade, as a reaction, we see a certain
shift from a class-based to a class- and ethnicity- Consequently, as field evidence shows, policies to
based (‘indigenous’) struggle for water access privatise and individualize water rights create an
and control rights, especially in countries such as enormous danger for indigenous and peasant
Ecuador and Bolivia. In many regions the tradi- communities in the Andes. This is also the main
tional struggle for more equal land distribution cause of the recent, very intensive, Water Wars in
has been accompanied or replaced by collective Bolivia (Assies, 2000; Bustamante, 2002).
In order to delve deeper into the power of water, of change that recognizes indigenous and cus-
it is necessary to understand the multi-layered tomary water management rules and rights in
concept of water rights in most indigenous and national legislation.
peasant communities. Typically, water rights do
not refer to rights of access and withdrawal only, While indigenous populations, especially, are
but are considered to be authorized claims to use being confronted with increasing water scarcity
water and to control decision-making about and neglect of their water management rules
water management (Beccar et al., 2002; Vincent, and rights, the current political climate seems to
2002; Zwarteveen, 1997). Therefore, it is a strug- be changing. However, changes in the law are
gle over the following key issues: access to water still void of content, while clear research results
and infrastructure; rules and obligations regard- and proposals in this area are lacking. The pro-
ing resource management; the legitimacy of gram aims to help bridge these gaps, facing the
authority to establish and enforce rules and challenge of taking the dynamics of customary
rights; and the discourses and policies to regulate and indigenous rules into account, without
the resource. And it is precisely the authority of falling into the trap of ‘freezing’ such local norm-
indigenous and peasant organizations that is ative systems or taking them out of context.
increasingly being denied, their water usage
rights that are being cut off, and their control
over decision-making processes that is being
undermined.
Fundamentally, a water right, more than just a

Recognition of local and
relationship of access and usage between ‘sub- indigenous rights:
ject’ (the user) and ‘object’ (the water), is a social
relationship and an expression of power among
conceptual problems and
humans. It is a relationship of inclusion and exclu- strategic challenges 49
sion, and involves control over decision-making.
Therefore it is crucial to consider the two-sided WALIR is an interdisciplinary program, compris-
relationship between water rights and power. ing lawyers, anthropologists, water profession-
Power relations determine key properties of the als, sociologists and agro-economists. Their social
distribution, contents and legitimacy of water backgrounds also differ significantly, ranging
rights, and in turn water rights reproduce or from academics and policy-advisors to action-
restructure power relations (see Boelens and researchers and legal advisors of indigenous
Hoogendam, 2002). organizations. The countries studied and their
respective legal structures are also, of course,
These considerations led to the formulation of very different, as are the national debates on
the WALIR (Water Law and Indigenous Rights) indigenous and customary rights, and the lan-
program, which is an international endeavour guages and concepts that are used. The chal-
based on action-research, exchange, capacity- lenges, then, are manifold, and are both practical
building, empowerment and advocacy(2). As a and conceptual. For example:
think-thank, WALIR informs debates on indige-
nous and customary rights in water legislation The notion of ‘indigenous’
and water policy. In collaboration with existing Decades ago, Frantz Fanon made the following
networks and counterpart initiatives, WALIR sets observation, which it is useful to recall in the
out to analyse the water rights and customary context of the WALIR program: “Colonial
management modes of indigenous and peasant specialists do not want to recognize that the
communities, comparing them with current culture has changed, and they hasten to support
national legislation and policy. In this way, it the traditions of native society. It is precisely the
sheds light on how these indigenous rules and colonialists who have become the defenders
rights regarding water are both legally and and advocates of a native lifestyle” (Fanon,
materially discriminated against, and even 1963).
destroyed. The aim is to contribute to a process
It gives a powerful warning to scholars, action- lenges and contexts. As mentioned by Gelles
researchers and NGOs, to refrain from naïve (2000:12), Andean culture and identity, there-
participationism or philanthropic imperialism and fore, is “a plural and hybrid mix of local mores
to take a critical look at any intention to support with the political forms and ideological forces of
so-called ‘indigenous’ knowledge, culture, rights, hegemonic states, both indigenous, Iberian and
livelihoods and natural resource management. It others. Some native institutions are with us today
also provides a background for the discussions because they were appropriated and used as a
that the program intends to stimulate, and means of extracting goods and labour by Spanish
shows partly how complex its objectives are. For colonial authorities and republican states after
example, what is, or who is, ‘indigenous’? Independence; others were used to resist colonial
and postcolonial regimes”.
In the Andean region, as elsewhere in Latin
America, the idea of so-called ‘Indians’ was Nowadays, we find a mixture of diverging posi-
invented and the concept of ‘indigenous’ was tions with respect to the notion of ‘indigenous’
constructed by various racist currents, develop- and its implications in practice. For example,
mentalist paradigms and romanticized narratives there are racist constructs that are oriented
– and by the indigenous peoples themselves. toward either ‘exclusion’ or ‘bio-political inclu-
Very different regimes of representation sion’; there are constructs related to develop-
constructed their own projections of ‘Andean mentalist integration (‘backwardness’), to
identity’ or ‘indigenous cultures’. Some of these Maoist-Leninist missions (‘revolutionary nature’),
refer to the ‘backwardness’ of the ‘Indians’, to advocacy for romanticized ways of life
implying that they should be assimilated into (‘cosmo-visionist’) or based on postmodern
mainstream culture. Others are neo-positive, analysis (‘deconstruction’). It is interesting to see
idealized images of ‘real and pure Indians’, iso- in this current complex situation a strategic
lated from cultural interaction and defenders of struggle of indigenous water user-groups to re-
50 original, positive human values (3). Indigenous appropriate more than the above-mentioned
groups have often adopted or contributed to water access rights, management rules, organi-
creating these stereotypes, sometimes unwit- zational forms, and legitimate water authority.
tingly, sometimes with clear ideological and In addition they actively aim to construct their
political purposes. own counter-discourses on ‘Andeanity’ and
‘Indianity’ alongside policies to regulate water.
Is it possible to speak of specific ‘indigenous’ or This dynamic, strategic-political struggle for
‘Andean’ cultures, communities, water manage- counter-identification (or self-definition), is not
ment forms or socio-legal systems? On the one necessarily based solely on local truths, rules,
hand, indigenous peoples dynamically shop rights and traditions.
around in other normative systems and dis-
courses, selecting and appropriating those ele-
ments, tools, and meanings that can strengthen The issue of ‘recognition’
their positions and legitimise their claims. New, A further major challenge of the program is
diverse, indigenous identities are being con- related to the notion of ‘legal recognition’. In
structed, in a strategy to represent indigenous order to confront the processes of discrimination,
peoples in their struggle against subordination sub-ordination and exclusion, indigenous and
and discrimination. On the other hand, Andean advocacy groups often aim for political action
communities show specific historical and cultural with clear, collective, unified objectives. However,
forms of collective action and resource manage- the struggle for formal and legal recognition
ment, embedded in specific Andean cultures with poses enormous conceptual challenges, with
their particular normative repertoires, symbols important social and political consequences.
and meanings, livelihoods and local economies.
In another paper, we discuss the dilemma regarding
Together, both aspects show the importance of recognition of legal hierarchies, arguing that a
analysing Andean cultures and management distinction must be made between analytical-
forms as dynamic and adaptable to new chal- academic and political-strategic recognition(4).
“In an analytical sense, legal pluralistic thinking rial resource basis has been secured?
does not establish a hierarchy (based on the • Do recognition efforts only focus on the legal
supposedly higher moral values or degrees of recognition of explicit and / or locally form-
legitimacy, effectiveness or appropriateness of a alized indigenous property structures and
legal framework) among the multiple, existing water rights (reference rights, often, but not
legal frameworks or repertoires. In political always, written down), or do and should they
terms, however, it is important to recognize also consider the complex, dynamic function-
that in most countries the existing, official ing of local laws and rights in day-to-day
legal structure is fundamentally hierarchical practice? These ‘rights in action’ and ‘materi-
and consequently, in many fields state law may alized rights’ emerge in actual social relation-
constitute a source of great social power – a fact ships and inform actual human behaviour,
that does not deny the political power that local but are less tangible.
socio-legal repertoires may have. Recognizing • How to define and delimit the domain of
the existence of this political hierarchy, and the validity of so-called indigenous rights sys-
emerging properties of state law in particular tems, considering the multi-ethnic composi-
contexts, offers the possibility to devise tools and tions of most Andean regions and the
strategies for social struggle and progressive dynamic properties of local normative frame-
change. In the discussion about ‘recognition’ as a works? In terms of exclusive geographical
way of giving legal pluralism a place in policy- areas, traditional territories, or flexible cul-
related issues, both the political-strategic and ture and livelihood domains?
analytical-academic aspects of recognition com- • How to avoid assimilation and subsequent
bine” (Boelens, Roth and Zwarteveen, 2002). marginalisation of local rights frameworks
Thus, instead of collective and unified claims, when these are legally recognized? And
many questions arise in the debates and strug- how to avoid a situation in which only those
gles for ‘recognition’, for example: ‘customary’ or ‘indigenous’ principles that fit
• Do indigenous peoples and their advocates into State legislation are recognized by the 51
claim recognition of just ‘indigenous rights’ law, and the complex variety of ‘disobedient
(with all the conceptual and political-strategic rules’ are silenced after legal recognition?
dilemmas of the ‘indigenous’ concept), or • Indigenous socio-legal repertoires only
do they also struggle for recognition of the make sense in their own, dynamic and partic-
broader repertoires of customary and peas- ular context, while national laws demand sta-
ant rights prevailing in the Andes? And bility and continuity. How to avoid freezing
what precisely is the difference in concrete, customary and indigenous rights systems in
empirical cases? static and universalistic national legislation, in
• There are no clear-cut, indigenous socio- which local principles lose their identity and
legal frameworks, but many dynamic, inter- capacity for renewal, making them useless?
acting and overlapping socio-legal reper- • Enabling and flexible legislation might
toires. Should indigenous peoples try to solve the above problem. However, enabling
present and legalize delimited frameworks legislation and flexible rights and rules often
for their own water rights, rules and regula- lack the power to actually defend local and
tions? Or should they rather claim recogni- indigenous rights in conflicts with third parties.
tion of their water control rights and thereby How to give room and flexibility to diverse
the autonomy to develop those rules, with- local water rights and management systems,
out the need to detail and specify these rules, while not weakening their position in conflicts
rights and principles within the official legal with powerful exogenous interest groups?
framework? • What does such legal flexibility mean for
• Or would it be a more appropriate and internal inequalities or abuses of power?
effective strategy to claim and defend legal- If, according to the above dilemma, the
ization of their water access rights – since autonomy to develop and enforce local rules
these are increasingly being taken away from is claimed (instead of strategies that aim to
them – and assume that water management legalize concrete, delimited sets of indige-
and control rights will follow once the mate- nous rights and regulations), how to face the
existing gender, class and ethnic injustices but hybrid complexes of various socio-legal sys-
which also form part of customary and indige- tems are in place. Formal rights and rules cannot
nous socio-legal frameworks and practices? act by themselves, and it is only the forces and
relationships of society that can turn legal
instruments into societal practice. Social and
The complexity of ‘law-oriented strategies’ technical water engineers, lawyers and other
Following from the above dilemma and prob- legal advocates, in particular, have often overes-
lems, a major conceptual and practical challenge timated the actual functionality or instrumental-
stems from the fact that national (positivist) ity of formal law and policies in local contexts.
legislation claims by definition that the law must
focus on uniform enforcement, general applicabi- On the contrary, their legal anthropological col-
lity and equal treatment of all citizens. But local leagues sometimes tend to underestimate the
and indigenous rights systems, on the contrary, power of formal law, assuming that all conflicts are
and by definition, address particular cases and settled by means of local normative arrangements,
diversity. How to deal with the conflict and funda- without any influence from official regulations.
mental difference between positive legal Justice However, the neo-liberal Water Laws (e.g. Chile) or
(oriented at ‘right’-ness / generality) and varying top-down instrumental water policies (e.g. in
forms of local Equity (‘fair’-ness / particularity)? Ecuador and Peru) have not only neglected custom-
State legislations have recognized this fact ary and indigenous forms of water management,
when faced with the problem of the law losing they also have had concrete, often devastating
its legitimacy in practice. Official justice was per- consequences for the poorest people in society.
ceived as being unfair in many specific cases.
Legal rules are general and individual cases are It is because of this that indigenous and grassroots
particular, hence common laws were called upon. organizations have fiercely engaged in the legal
In many cases the second set of principles (fairness) battles. Moreover, in this regard, it is important to
52 has been institutionalised. This was not to consider here that efforts to gain legal recognition
replace the set of positive rules of rightness, but do not replace but rather complement local strug-
to complement and adapt it. In fact, it appeared gles ‘in-the-field’. On both levels there is political-
that official legislation (Justice) often survived, strategic action to defend water access rights,
thanks to the ‘fairness’ and acceptability of define water control rights, legitimise local
common laws that were incorporated. This was authority and confront powerful discourses.
often carried out by formulating special laws.
However, this institutionalised equity is a contra- In the next section I will elaborate on the ways in
diction in terms. It leads almost automatically to which these key issues, at the local and national
the ironic situation in which the set of common levels, shape the complex arena in which local
or customary rules (equity), itself becomes a gen- water rights and customary laws confront uni-
eral, formalized system and loses its pretensions form policies and politics of participation.
of ‘appropriateness’, ‘being acceptable’ and
‘doing justice’ in particular cases (Schaffer and
Lamb, 1981; Boelens and Dávila, 1998;
Lauderdale, 1998).
A closely-related dilemma involves the effective-

Inclusion and exclusion:
ness of legal recognition. Considering the lack of the cultural politics of
access of peasant and indigenous communities to
State law and administration, this question is
participation
prominent: is legal recognition the most effective National water policies in the Andean countries,
strategy, or would it be better for peasant and and especially their translation in field practice,
indigenous communities to defend their water reflect and deploy the political power and cul-
laws and rights ‘in the field’? Moreover, often it is tural hegemony of a dominant stakeholder
not the State law as such that sets the rules of the group(5). This group has, historically, imposed
game in peasant and indigenous communities, rules, rights and regulations, and has controlled
nation-building processes in the last centuries. As New irrigation legislation and state policies are
shown by Gelles, State bureaucracies usually ignore thus often an expression of post-colonial dis-
indigenous models of resource management, courses on equality. As De la Cruz (1993)
because of the alleged superiority of ‘modern’ observed, “the principle of equality before the
Western cultural forms and organization, and law is valid for the identical and profoundly
because the power-holders and dominant unjust for the diverse” (Stavenhagen, 1994;
cultures of these nations regard indigenous Stavenhagen and Iturralde, 1990). This horizon-
peoples as racially and culturally inferior (Gelles, tal, disciplining power functions because it pene-
2000:9-10)(6). trates people and society as a whole. “This power
is exercised rather than possessed; it is not a ‘priv-
Here we need to examine an important change, ilege’, acquired or preserved, of the dominant
that clearly differentiates power relations in the class, but the overall effect of its strategic posi-
Republican states from their Inca and Spanish tions – an effect that is manifested and some-
colonial predecessors. There is a move from real times extended by the position of those who are
political exclusion to an imagined political inclu- dominated” (Foucault, 1978).
sion of indigenous peoples, from a discourse of
racial (and thus ‘natural’ social) differentiation to Thus across the Andes and many other regions of
a discourse of equality. the world, irrigation technicians and develop-
ment professionals introduce virtually the same
In former days, indigenous property rights were irrigation techniques, knowledge, and norms
taken away through violence, conquest, coloniza- everywhere (developed in Western research cen-
tion and oppression, and they were excluded from tres, universities, and development enterprises).
the benefits of society. In addition to appropriat- But they are not just imposed in a top-down way.
ing local cultural norms for their own extractive In many instances, it is the indigenous peasants
purposes, the Inca emperors and other indigenous themselves who ask for this same technology, in
leaders, as well as the kings, conquistadores and order to ‘progress’ and leave behind their tradi- 53
hacendados during the Spanish colonial period, tional ‘backward’ technology, in order to become
differentiated and elevated themselves by exclud- like the western-oriented, ‘modern farmers’
ing the subordinated classes from resources, serv- (Boelens and Dávila, 1998; Van der Ploeg, 2003).
ices, and social life (see e.g. Flores Galindo, 1988;
Patterson, 1991; Van der Ploeg, 1998). Many differ- This kind of power in modern nation-states seeks
ent means, including public displays that glorified for inclusion, rather than exclusion, of Andean
and reified the might of the groups in power, rein- communities, indigenous peasants and other
forced this differentiation and social exclusion. oppressed classes. At the same time this ‘unifor-
mity’ and ‘equality’ supposedly makes it easy to
In the post-colonial era the opposite occurs: not measure these social groups. They are individual-
the powerful authorities and landlords, but the ized, classified, and made into ‘cases’, according to
peasant and indigenous communities and the the ways that they do or do not fit the model. Yet,
common people are made visible and brought to their participation often results in disappointment,
the fore, by means of a Foucaultian ‘disciplining’, in social and cultural disintegration, and in their
‘participatory’ power of ‘equalizing normaliza- being defined as ‘permanently backward people’,
tion’, which is present in everyday interactions. due to their incapacity to meet the norms for
“It actually manifests and reproduces or trans- being ‘equal’. In the words of Fanon (1963):
forms itself in the workplaces, families and other “The Western ideology, which is a proclamation
organizational settings of everyday life” of the fundamental equality of men (…) invites
(Foucault, 1980). Yet the powerful groups that inferior men to become human beings, according
benefit from this inclusive power, as well as the to the Western example of the humanity that it
new mechanisms and rules of subordination, in represents. In spite of being fundamentally
fact remain invisible. racist, it generally succeeds in hiding this racism
through ever more subtle modifications; thus,
maintaining its proclamation of men’s extraordi-
nary dignity”.
Another clear example of this is found in the nor- security, effective organization, private ownership
malizing, equalizing and categorizing properties and economic functionality. In practice, indige-
of neo-liberal market ideologies penetrating the nous peoples are forced to ‘equalize’. In other
Andean nations – including legal and policy words, they are forced to adopt the norms and
frameworks for water management. The neo- practices of white or mestizo water users, which
liberal economic principles are, on the one hand, most often run counter to local social relations
imposed on Andean states by international insti- and environment, and disintegrate local commun-
tutions and national power groups. But on the ities and identity.
other hand, many of their basic concepts and
dynamics have been adopted and internalised by Second, if inclusion and participation are the object-
Andean communities, penetrating and subtly ives, the obvious question is: inclusion in what?
transforming local management forms and Participation in whose objectives, visions, and
often disarticulating indigenous water control. terms? In this respect, the Second World Water
Thus, the use of universally applicable irrigation Forum (2000) concluded that “(…) there is a recur-
models, supported nowadays by water manage- rent problem for indigenous peoples, who are
ment privatisation ideologies, is a powerful often constrained to deal with vital issues on terms
means by which contemporary nation-states and dictated by others. Traditional knowledge is seen as
private interest sectors extend their control. inferior in current political, legal, and scientific sys-
tems and therefore their arguments are discarded
In sum, contemporary nation-states employ a time and again by courts and other institutions”.
new and different symbology of power, which is
espoused in modernization and development Third, regarding the important current concepts of
discourses as well as in neo-liberal economic poli- ‘integrated’ water management and ‘integrated’
cies. It aims to include, not to exclude; it pretends policies, there seems to be a general consensus, but
to provide universal benefits, while in fact who does the integration? Let us have a look at
54 extending state control and the cultural orient- some common, inclusion-oriented, examples.
ations of national and international power holders.
Within this context, the recognition and balanced The famous Majes Project in southern Peru is one
valuation of local beliefs and practices is necessarily of the many cases in which the Andean peasant
precluded because any legitimisation of these and indigenous communities, and especially their
local norms calls into question the supposed resources, were ’included‘ in the development
monopoly of the state and market ideology over process. Major investments were made –
rationality and legitimate culture (Gelles and US$ 1,300,000,000 – to capture and conduct the
Boelens, 2003). water from the Colca Valley and irrigate the desert
lowlands. Only 15,000 ha. have been irrigated, for
a total of 3000 families, who each obtained a 5 ha.
The tyranny of participation parcel. This is an investment of the order of
Although violent take-overs have not disappeared, US$ 80,000 per ha., or, what is even more
as outlined above, the keywords are no longer appalling: US$ 400,000 per family (Hendriks,
exclusion and outright oppression, but so-called 2002).
‘inclusion’, ‘integration’ and ‘participation’, in the
name of ‘equality’(7). But then, with these modern But the original design excluded, outright, any pro-
concepts, fundamental questions arise: vision of water for the upper basin, where the
indigenous communities live, and where the water
First, if equality is strived for, the question is: equal comes from. Furthermore, to recover investments,
to what, equal to whom, equal to which model? those families who did acquire land and water
The basic assumption in current Latin American rights in the lower basin, had to pay US$ 25,000 per
water policies is, that ‘progress’ means: equality to parcel, by no means affordable for an indigenous
the occidental, techno-centric and male-biased small-holder family. Indigenous communities in the
water management model. The concept of Andean catchment were included, however. To
rational water management is interspersed with undo their ‘backwardness’, they did get the largest
non-indigenous norms about efficiency, social share of the burden through the expropriation of
land, strong price inflation, depredation of natural Next, since individual water property owners can
resources, destruction of terraces, and debilitation make use of the water entirely according to their
of existing patterns of organization and culture personal interests, Chile faces the problem of a
(Tipton, 1988). strong increase in water contamination, while
individual property owners are not sanctioned
The United Nations / CEPAL estimated that barely for polluting their property. Often, indigenous
0.2 % of total project investment was allocated communities and downstream cities bear the
to the upper basin, where the poorest sectors consequences (Bauer, 1997; Dourojeanni and
were in great need of irrigation water. Moreover, Jouravlev, 1999).
comparing this budget with other options at that
time, 750,000 ha. of abandoned terraces could At the same time, the water market itself has
have been recovered and brought back into not developed (or in some cases has only very
production in peasant and indigenous commu- marginally), but extreme monopolization, specu-
nities (CEPAL, 1988; see also Manrique, 1985). lation and hoarding of water rights did. A few
power-generating and mining companies have
It is interesting to compare this with an example accumulated the vast majority of rights, most of
in Ecuador. According to Whitaker’s study (1992) which are not used at the moment. The Water
peasant and indigenous farmers with less than Code does not request water rights owners to
one ha. – who are responsible for the major part actually make use of these rights, nor are they
of national food production – represent 60% of obliged to pay concession fees. This makes
all farmers, but they received only 13% of State hoarding and speculation of water rights
spending on irrigation. At the same time, large extremely attractive in a context of scarcity
landowners represent only 6% of farmers, and (Solanes and Getches 1998, Solanes and
they received 41% of State spending on irriga- González-Villareal 1999). A major source for this
tion. The public financed all this. State irrigation accumulation and monopolization of water
investment in Ecuador at that moment repre- rights was the expropriation of the so-called 55
sented 11.6% of the total foreign debt. ‘unregistered’ indigenous community rights
(Castro, 2002; Dourojeanni and Jouravlev, 1999;
Another example is the inclusion of indigenous Gentes, 2002; Hendriks ,1998). This relates to a
water communities in current global water policy recurrent problem of universal or national policy
models. In Chile, indigenous peoples are included models: their validity is based on theoretical
in the 1981 Water Code, dictating privatisation of models and paradigms, but they usually fail to
water rights. While ideological studies continue to look at human suffering and internal contradic-
praise the model, empirical field studies indicate tions in the field.
the disintegration of collective, indigenous sys-
tems. The individualization of water rights has A final and very common example at field level
increased insecurity and disorganization – instead shows the problems that arise from outside-
of decreasing insecurity, as neoclassical theory driven integration of indigenous communities
wants to have it (Bauer, 1997, 1998; Hendriks, into uniform national legislation, organizational
1998; Dourojeanni and Jouravlev, 1999; Castro, models and engineers’ designs(8).
2002). Moreover, according to the new legislation,
decision-making rights on water management are The Ecuadorian State intervened in an indigenous
now attached to the economic buying power of area of 20 communities in the Andes, in Licto, to
individuals. Rights-holders with more ‘water build an irrigation system and carry out an
actions’ (volumetric rights per time unit) have integrated development program. The system was
more decision-making power, contrary to indige- designed in the country’s capital, without user
nous management and collective interests. In involvement. The hydraulic design disregarded
many cases, the interests of an elite owning water community production systems and boundaries,
rights have effectively been able to deny the inter- and imposed a classic, universal blueprint.
ests of the majority (the group of poorer users),
and impose their own rules (Boelens and
Zwarteveen, 2003; Hendriks, 1998).
Although the great majority of water users were Creation of water rights:
female because of male outmigration, the infra-
structure had no night reservoirs and the sched- creation of
ule was based on 24-hour irrigation. Night irriga- infrastructure
tion, however, made it impossible for women to
make use of water rights – for reasons such as
sexual violence, child care, soil erosion, remote creation of creation of
water rights organization
fields, etc.
The nation-wide, uniform, legal recipe dictated Re-creation of water rights:

the organization of the system, which would
maintenance of
strengthen bureaucratic power and artificial infrastructure
leaders, while weakening community structure
and collective action which remains the only way
to survive in this region. maintenance of maintenance of
water rights organization
Law also pre-established that most women could
not get water rights – unless they were formally
Diagram 1: Driving force behind indigenous water
recognized as ‘heads of households’ – although it
management and collective action.
was they who, according to local indigenous
rules, had worked, invested and thus created the
water rights. The State imposed a model in When the State agency, because of financial crisis
which water rules and rights were established by and lack of capacity, did not complete construct-
standard government rationality: those individuals ion of the system, the indigenous communities
who have land and pay fees, get water rights. took over its development, with the help of a
56 Indigenous rationality, on the contrary, says: you local NGO. They adapted the design, manage-
cannot just buy rights. Those who contribute ment and water rights to local demands and
with labour, organizational capacities and partic- capacities. Although many had no formal educa-
ipate in the meetings, create water access and tion or were illiterate, the means were devel-
decision-making rights. Thereby, individual rights oped to discuss collectively the design, rules and
are derived from the collective ownership of rights. For example, they used scale models and
infrastructure. user-to-user training in the local language.
Through interactive design and visual capacity-
In many indigenous and rural communities this building tools, the creation of infrastructure and
is the motor of local water management and water rights were linked. Next, combined literacy
collective action (see diagram). At the same time training and water management capacity build-
as you create your infrastructure, you create your ing strengthened the position of female water
water rights and you create your organization. users and female leaders, since they were to
Then, to maintain and re-create your water become involved in the management of the sys-
rights, you have to maintain and re-create the tem. It was they who were in charge of creating
collective infrastructure and organization. There and maintaining water rights in the system.
is a dynamic and permanent interaction between Fundamentally, collective action formed the basis
the technological system, the normative system for the construction of infrastructure and the
and the organizational system. construction 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 communities

had finished the system, with clear rules and
rights and strong collective management, the
State administration came in again. It did not
want to recognize local management, regula-
tions and water rights. Simply because local rules Thus, in indigenous and peasant communities
were not sustained by national law, they were today, water users claim both the right to
declared ‘illegal’. equality and the right to be different. On the
one hand, there is a general demand for greater
At this moment, the State agency, in their inter- justice and equality regarding the unequal distri-
pretation of the universal Decentralization and bution of decision-making power, water, and
Management Turnover policy, claimed the man- other water-related benefits. On the other, there
agement of the system back from the indigenous is a demand for internal distribution to be based
communities. Its argument was: “How can we on autonomous decisions, locally established
hand it over if it is not in our hands?” International rights and principles, and local organizational
and national policies usually have different effects forms for water control, which reflect the diverse
in the field than in the theory, and behind official strategies and identities found in peasant and
arguments a power play is going on. indigenous communities today.
Indigenous communities are defending their

technological, normative and organizational
water-use system. But they face strong, positivist,
uniform law and inclusion-oriented water policies.
Ecuadorian Water Law, like most others, does not
allow for local water rights and management
principles, and destroys the variety of normative
systems that do try to find particular solutions for
diverse contexts.
57
Conclusion
Is it not ironic that precisely those producers of
local livelihood and national food security, who
developed a variety of water rights and manage-
ment systems in order to adapt them to the mul-
tiple local constraints and opportunities, are the
same ones that suffer most from inclusive policies
and uniform, positive legislation? But, while cur-
rent cultural politics and policies of ‘inclusion’ are
the problem, the solution is not to go back to
‘exclusion’. Participation is desirable, but with a
different approach to rights: one that takes into
account, from a critical perspective, the fact that
peasant and indigenous communities want to
take part on their own terms, given the diversity
of identities, organizational forms and norm-
ative frameworks that govern their water man-
agement in practice – and given that most rights
of access and control have been taken away from
them.
(4) “Taking ‘recognition’ as a point of departure implies that

there is a ‘recognizing party’ and a ‘party being recognized’.
This would put us in the kind of state-biased position in
which matters are decided upon according to a state-
determined hierarchy of legal systems’ validity and
58 capacities of validation. Such a position, needless to say,
ENDNOTES would invalidate the insights derived from attention to legal
(1) The issue is often related to current land reform policies. pluralism. On the other hand, it is important to be aware of
Mayer, 2002; Zoomers and Van der Haar, 2000. the possible opportunities involved in (state) recognition,
taking into account and taking seriously the fact that many
(2) WALIR is coordinated by Wageningen University and the
local groups of resource users, ethnic and other minorities
United Nations Economic Commission for Latin America and
actively aspire and strive for this form of recognition. As we
the Caribbean (UN/ECLAC) and is implemented in co-
have mentioned before, water users (and especially
operation with counterpart institutions in Bolivia, Chile,
marginalized actors) are often constrained by state law, but
Ecuador, Peru, Mexico, France, The Netherlands and the
at the same time they can (try to) approach it as a powerful
USA, at international, national and local levels.
resource for claiming or defending their interests and
(3) It was therefore not just the dominant, racist class and rights” (Boelens, Roth and Zwarteveen, 2002. See also
social Darwinists, but also many ‘indigenist’ (and later Benda-Beckmann, 1996).
‘Indianist’) scholars – e.g. Marxist thinkers and activists, who
(5) This section is based on Gelles and Boelens (2003).
fought against racial discrimination and racial oppression –
who contributed to the great mestizaje project, intending to (6) This bureaucratic irrigation tradition has been especially
paternalistically ‘include the poor indigenous peoples in powerful in countries such as Peru and Ecuador. As Lynch
modern society’. This was carried out, among other means, (1993) and Boelens and Zwarteveen (2003) have shown, its
by ‘modern’ technology (e.g. irrigation techniques), devaluation of particular actors of water use extends to
legislation and capitalization of Andean communities, or by women, as the gender discrimination found in the field and
defining ‘indigenous’ as synonymous with ‘revolutionary’, in in irrigation offices is part and parcel of the bureaucratic
Western schools of thought. Furthermore, some indigenous tradition.
and Indian scholars and movements tried to create the
(7) For an analysis of equality and participation discourses,
‘modern Indian’, rooted in ancient indigenous myths and
see, among others, the works of Michel Foucault, Hans
symbols and pan-Andean discourses, in order to foster
Achterhuis, Arturo Escobar, Michael Taussig, Ivan Illich, René
regional pride and nationalism or legitimise their political
Girard, Bernard Schaffer. With reference to the title of this
and ethnic (often mestizo) positions. The ‘indigenous’ was –
section, see also Bill Cooke and Uma Kothari, 2002.
and often still is – characterized by projecting stereotyped
images (see, for example, Almeida, 1998; Baud, 2003; Baud (8) Based on the chapter Recipes and resistance. Peasants’
et al., 1996; Boelens and Gelles, 2002; Degregori, 2000; rights building and empowerment in the Licto irrigation
Gelles, 2002; Guillet, 1992; Hale, 2002; Iturralde, 1993; system, Ecuador, of the book Water Rights and
Stavenhagen, 1994; Stavenhagen and Iturralde, 1990). Empowerment (Boelens and Hoogendam, 2002)
Bustamante Rocio, 2002 Legislación del Agua en Bolivia.

REFERENCE LIST WALIR: Centro AGUA / UMSS, CEPAL and Wageningen
Almeida José, 1998, Andean social construction of identity
University, Cochabamba.
and political direction. Searching for Equity, R Boelens and
G Dávila eds., pp 203-210, Van Gorcum, Assen. Castro Milka, 2002, Local norms and competition for water
in Aymara and Atacama communities, Northern Chile. Water
Assies Willem, 2000, David fights Goliath in Cochabamba:
Rights and Empowerment, R Boelens and P Hoogendam
water rights, neoliberalism and the renovation of social
eds., pp 187-201, Van Gorcum, Assen.
protest in Bolivia. Draft, Colegio de Michoacán, Rural
Studies Institute, Zamora, Michoacán. CEPAL, 1988, Gestión para el desarrollo de cuencas de alta
montaña en la zona andina. CEPAL / United Nations,
Baud Michiel, 2003, Intelectuales y sus utopías; Indigenismo y
Santiago, Chile.
la imaginación de América Latina Cuadernos del CEDLA no 12.
CEDLA, Amsterdam. CONAIE, 1996, Propuesta Ley de Aguas. CONAIE, Quito.
Baud Michiel, Koonings, Kees, Oostindie Gert, Ouweneel Cooke, Bill and Uma Kothari. 2002, Participation. The new
Gert, Silva Patricio, 1996, Etnicidad como estrategia en tyranny? Zed Books, London.
América Latina y el Caribe. Abya Yala.
Cruz Rodrigo De la, 1993, Aportes del Derecho
Bauer Carl, 1997, Bringing water markets down to earth: the Consuetudinario a la reforma jurídico del Estado.
political economy of water rights in Chile, 1976-95. World Derecho, pueblos indígenas y reforma del Estado, pp 71-96,
Development Vol 25, no 5, pp 639-656. Abya-Yala, Quito.
Bauer Carl, 1998, Slippery property rights: multiple water Degregori Carlos Iván ed., 2000, No hay país más diverso.
uses and the neoliberal model in Chile, 1981-95. Natural Compendio de la antropología peruana, PUCP, UP, IEP, Lima.
Resources Journal 38, pp 110-155.
Dourojeanni, Axel and Andrei Jouravlev, 1999, El Código de
Beccar Lily, Boelens Rutgerd, Hoogendam Paul, 2002, Water Aguas en Chile: entre la ideología y la realidad. Serie Recursos
rights and collective action in community irrigation. Water Naturales e Infraestructura 3, CEPAL, Santiago, Chile.
Rights and Empowerment, R Boelens and P Hoogendam
Fanon Frantz, 1963 (1959), The wretched of the earth.
Grove Press, New York.
Benda-Beckmann Franz von, 1996, Citizens, Strangers and
Flores Galindo, Alberto, 1988, Buscando un Inca. Identidad y
Indigenous Peoples: Conceptual Politics and Legal Pluralism.
utopia en los Andes. Editorial Horizonte, Lima.
Law and Anthropology 9 (1996), pp 1-42. 59
Foucault Michel, 1978, Discipline and punish: the birth of
Benda-Beckmann Franz von, Benda-Beckmann Keebet von,
the prison. Pantheon Books / Random House, New York.
Spiertz Joep, 1998, Equity and legal pluralism: taking
customary law into account in natural resource policies. Foucault Michel, 1980, Power / Knowledge: selected
Searching for equity, R Boelens and G Dávila eds., pp 57-69, interviews and other writings 1972-1978, edited by Colin
Van Gorcum, Assen. Gordon, Pantheon Books, New York.
Boelens Rutgerd, Dávila Gloria eds., 1998, Searching for Gelles Paul H, 1998, Competing cultural logics: State and
Equity. Conceptions of justice and equity in peasant ‘indigenous’ models in conflict. R Boelens and G Dávila eds.,
irrigation. Van Gorcum, Assen. Searching for equity, pp 256-267. Van Gorcum, Assen.
Boelens, Rutgerd, Doornbos Bernita, 2001, The battlefield of Gelles Paul H, 2000, Water and power in highland Peru:
water rights. Rule making amidst conflicting normative the cultural politics of irrigation and development.
frameworks in the Ecuadorian highlands. Human Rutgers University Press, New Brunswick, New Jersey.
Organization 60 (4), pp 343-355. Gelles Paul H, 2003, Indigenous peoples, cultural identity
Boelens Rutgerd, Hoogendam Paul eds., 2002, Water Rights and water rights in the Andean nations. WALIR: CEPAL,
and Empowerment. Van Gorcum, Assen. Wageningen University, University of California,
Wageningen and Riverside, California.
Boelens Rutgerd, Zwarteveen Margreet, 2003, Water,
gender and ‘Andeanity’: Conflict or Harmony? Gender Gelles Paul H, Boelens Rutgerd, 2003, Water, Community and
dimensions of water rights in diverging regimes of Identity: The politics of cultural and agricultural production in
representation. T Salman and A Zoomers eds., Imaging the the Andes. T Salman and A Zoomers eds., Imaging the Andes:
Andes: Shifting margins of a marginal world, CEDLA Latin Shifting margins of a marginal world. CEDLA Latin America
America Studies 91, Aksant / CEDLA, Amsterdam. Studies 91, Aksant / CEDLA, Amsterdam.
Gentes Ingo, 2002, Estudio de la Legislación Oficial Chilena y
Boelens Rutgerd, Zwarteveen Margreet, 2003, The politics of
del Derecho Indígena a los Recursos Hídricos. WALIR: CEPAL
Andean water policy reforms. Local and indigenous rights in
and Wageningen University, Santiago de Chile.
the context of privatisation policies. Austrian Journal of
Development Studies 19 (4), pp 56-75. Gentes Ingo, 2003, Estudio sobre marcos normativos indígenas
y consuetudinarios referente a la gestión del agua en Chile.
Boelens Rutgerd, Roth Dik, Zwarteveen Margreet, 2002, Legal
WALIR: CEPAL and Wageningen University, Santiago de Chile.
complexity and irrigation water control: analysis, recognition
and beyond. Paper for the International Congress of Legal Gerbrandy Gerben, Hoogendam Paul, 1998, Aguas y
Pluralism, 7-10 April 2002, Chiang Mai, Thailand. acequias. PEIRAV – Plural Editores, Cochabamba.
Getches David, 2002, Indigenous Rights and Interests in Patterson Thomas, 1991, The Inca Empire: The Formation and
Water under United States Law. WALIR: CEPAL and Disintegration of a Precapitalist State. Berg Press, New York.
Wageningen University, Wageningen / Boulder, Colorado.
Peña Francisco (ed.), 2004, “Los pueblos indígenas y el
Getches David, 2003, Indigenous peoples’ rights to water agua”, El Colegio San Luís, IMTA, WALIR. Obranegra
and international norms. WALIR: CEPAL and Wageningen Editores, Bogota and Mexico.
University, Wageningen / Boulder, Colorado.
Ploeg Jan Douwe van der, 1998, Peasants and power.
Guevara G Armando,Vera D Iván, Urteaga C Patricia, Searching for equity. R Boelens and G Dávila eds.,
Zambrano Gustavo, 2002, Estudio de la Legislación Oficial pp 39-45, Van Gorcum, Assen.
Peruana sobre la Gestión Indígena de los Recursos Hídricos.
Ploeg Jan Douwe van der, 2003, The Virtual Farmer.
WALIR: CEPAL and Wageningen University, Lima.
Van Gorcum, Assen.
Guevara G Armando,Vera D Iván, Urteaga C Patricia,
Ruf Thierry, Mathieu Paul, 2001, Water rights and the
Zambrano Gustavo, 2003, Estudio sobre marcos normativos
institutional dynamics of irrigated systems: between State,
indígenas y consuetudinarios referente a la gestión del agua
market and community action. International Journal of
en el Perú. WALIR: CEPAL and Wageningen University, Lima.
Water 1, no 3-4.
Guillet David, 1992, Covering Ground: Communal water
Schaffer Bernard, Lamb Geoff, 1981, Can equity be
management and the State in the Peruvian Highlands.
organized? Equity, development analysis and planning.
University of Michigan Press, Ann Arbor.
Institute of Development Studies, Sussex University, Brighton.
Hale Charles R, 2002, Does multiculturalism menace?
Second World Water Forum, 2000, Forum Session
Governance, cultural rights and the politics of identity in
conclusions Water and Indigenous People,
Guatemala. Journal of Latin America Studies 34 (3) pp 485-524.
www.worldwaterforum.org, The Hague, March 2000.
Hendriks Jan, 1998, Water as private property. Notes on the
Solanes Miguel, Getches David, 1998, Prácticas recomendables
case of Chile, Searching for equity, R Boelens and G Dávila
para la elaboración de leyes y regulaciones relacionadas con
el recurso hídrico. BID / CEPAL, Washington DC.
Hendriks Jan, 2002, Water Rights and Strenghtening Users’
Solanes Miguel, González-Villareal Fernando, 1999, The
Organizations: the Art of Negotiating, Water Rights and
Dublin principles for water as reflected in a comparative
Empowerment, R Boelens and P Hoogendam eds., pp 52-74,
assessment of institutional and legal arrangements for
Van Gorcum, Assen.
60 integrated water resources management. TAC Background
Iturralde Diego, 1993, Usos de la Ley y usos de la costumbre: papers 3, Global Water Partnership, Stockholm.
La reivindicación del derecho indígena y la modernización del
Stavenhagen Rodolfo, 1994, Indigenous rights: some conceptual
Estado. Derecho, pueblos indígenas y reforma del Estado,
problems. Indigenous peoples, Experiences with self-government,
Colección Biblioteca Abya-Yala 2, Abya-Yala, Quito.
Willem Assies and André Hoekema eds., University of
Lauderdale Pat, 1998, Justice and Equity: a Critical Amsterdam and IWGIA, Copenhagen, Amsterdam.
Perspective. Searching for equity R Boelens and G Dávila
Stavenhagen Rodolfo, Iturralde Diego eds., 1990, Entre la
eds., pp 5-10. Van Gorcum, Assen.
ley y la costumbre. El derecho consuetudinario indígena en
Lynch Barbara D, 1993, The Bureaucratic Tradition and América Latina. Instituto Indigenista Interamericano e
Women’s Invisibility in Irrigation. Proceedings of the 24th Instituto Interamericano de Derechos Humanos, Mexico City.
Chacmool Conference, pp 333+342, University of Calgary
Tipton John, 1988, Institutional factors influencing public
Archeological Association, Alberta.
sector decision-making on the management of Andean river
Manrique Nelson, 1985, Colonialismo y pobreza campesina: basins. Management for the development of high-mountain
Caylloma y el Valle del Colca siglos XVI -XX. DESCO, Lima. river basins in the Andean región, CEPAL, United Nations,
Santiago, Chile.
Mayer Enrique, 2002, The Articulated peasant. Household
economies in the Andes. Westview Press, Boulder, Oxford. Vincent Linden, 2002, Water rights, livelihoods and
empowerment. www.indigenouswater.org, WALIR,
Méndez Cecilia, 2000, Incas sí, indios no: apuntes para el
Proceedings International Seminar on Water Law and
estudio del nacionalismo criollo en el Perú. IEP, Lima.
Indigenous Rights, March 2002, Wageningen.
Pacari Nina, 1998, Ecuadorian water legislation and policy
WALIR, 2002, Water Law and Indigenous Rights:
analysed from the indigenous-peasant point of view.
www.eclac.cl/drni/proyectos/walir
Searching for equity. R Boelens and G Dávila eds.,
pp 279-287, Van Gorcum, Assen. Whitaker Morris D, 1992, El rol de la agricultura en el
desarrollo económico del Ecuador. IDEA, Quito.
Palacios Paulina, 2002, Estudio nacional de la Legislación
Oficial y los Marcos Normativos Consuetudinarios referente Zoomers Annelies, Haar Gemma van der (eds.), 2000,
a la Gestón Indígena de los ecursos Hídricos. WALIR: CEPAL Current Land Policy in Latin America. Regulating land tenure
and Wageningen University, Quito. under neo-liberalism. KIT, Amsterdam.
Palacios Paulina, 2003, Estudio sobre marcos normativos Zwarteveen Margreet, 1997, Water: from basic need to
indígenas y consuetudinarios en la gestión del agua en el commodity. A discussion on gender and water rights in the
Ecuador. WALIR: CEPAL and Wageningen University, Quito. context of irrigation. World Development 28 (8), pp 1335-1349.
61
62
Worldviews and water management
63
64
The issue of water is one of survival for the iBesao (people of Besao), who
consider themselves the stewards of water, land and forests. Traditional
management of water resources is closely associated with religious beliefs
in nakinbaey or spirits of nature. The nakinbaey inhabiting water sources
are believed to be responsible for producing water. It is therefore
imperative for people to prevent nakinbaey from leaving, by observing
culturally prescribed behaviours: the inayan. Inayan, literally meaning
“beware!”, governs the day-to-day behaviour and relations of Besao
people and embodies Besao custom law.
Ellen P. Dictaan Bang-Oa is a Kankanaey-Igorot from Besao, Mountain Province, the Philippines. She
has been working on indigenous peoples' concerns for many years and is currently a member of the
research staff of Tebtebba, Inc.
tebtebba@skyinet.net
Besao: a brief profile the highest producers of rice in the province but
does not produce enough to supply the total
Besao, one of the municipalities of Mountain needs of the municipality. Other agricultural
Province, has a population of 10,067 people products include root crops, citrus fruits, banana,
(NCSO, 2000) living on a total land area of 107.8 corn and coffee as well as vegetables like cab-
square km. The altitude ranges from 400 to 2,364 bage, beans and legumes. Additional resources
m above sea level. Based on Department of come from backyard livestock raising.
Environment and Natural Resources categories,
all of Besao’s lands are forest, of which 52% is The Besao people have six major uses for their
further classified as forest reserve, 26% as timber land, namely: croplands, grazing areas, cultural
land and the remaining 22% as unclassified forest. sites, forests, hunting grounds and residential
The Department of Agriculture, on the other areas. The croplands are the main source of
hand, reports that 10% of the municipality’s total livelihood, and include the payew or irrigated
land area is used for agricultural purposes, while pond field for rice production and the uma or
88.6% are grasslands and wooded forests (SRA- the non-irrigated kaingin for other crops, like
MBN Operationalization Plan, 1997). legumes, root crops, fruit and vegetables.
Forests are further classified in Besao as either
batangan (pine forest) or kallasan / pagpag
(mossy forests).
Traditional respect and

ownership regimes 65
Tiga-ipugaw nan danum… maanap; mawada…

tumayaw nu maukos…, Et no pay mamid, intoy
ken tako pay?
(Water is like man – it can come out… it runs
away when displeased. If water disappears, what
do we eat?)
IBesao representations of water reflect their

high regard for water: they see it as life itself. It
needs sustenance in order to perpetuate itself,
as well as man. This notion is embodied in the
concept of nakinbaey, which is literally trans-
lated as ‘inhabitant’. The inhabitant refers to a
supernatural being or spirit, attributed to most
water sources and other sacred / ritual sites in
Besao. Among the Besao people, the nakinbaey
is believed to be responsible for producing water.
To guarantee the water supply, therefore, the
Map of the Cordillera Region in Northern Philippines nakinbaey has to be prevented from leaving. This
requires people consciously to respect the water
by observing culturally prescribed practices.
The people of Besao (iBesao) are of the
Kankanaey ethnolinguistic group. They are basi-
cally engaged in paddy and kaingin agriculture
(swidden agriculture) for income. Besao is one of
a simple ‘do not’ command that is replete with val-

ues, like respect for other people and nature, jus-
tice, morality, harmony, sharing resources and
helping one another, among others…” (Besao
Ancestral Domain Management Plan, 2000).
Displeasing the nakinbaey results in it abandon-

ing the area, or what is locally described as
tumayao (to fly away / to evaporate) or mammid
(to disappear). Old people in Besao can recall two
water sources that are believed to have abando-
ned the area sometime in the early 1940s in this
Sustaining water out of respect for life – © E. Bang Oa way. According to Galeled Anosan (over 85 years
old, Besao), Betak used to be one of the sources
of domestic water for Besao proper. During the
Anything that has to do with death is repulsive to war, a man from Tadian seeking refuge in the
the nakinbaey. People transporting dead human area reportedly butchered a dog near Betak. A
and animal remains, for example, do not pass year afterwards, Betak dried up. Mariano Martin
near water sources. Butchering animals, espe- (85 years old, Besao) recalls the water source in
cially dogs, near an ‘inhabited’ water spring is Kinpit-ek, which was believed to have gone to
considered disrespectful towards the water Ilocos (a neighbouring province) as the nakin-
source. Community members in mourning avoid baey reportedly told a men-sip-ok (shaman).
water sources for about three years. They have to The community sent representatives to Ilocos to
request the services of other community mem- call the water back to Kinpit-ek, by performing
bers for their water needs. The iBesao consciously a ritual in the area. They killed a chicken, recit-
66 avoid spitting or using soap near water sources. ing a prayer for the water to return. They then
took a cup of the water away with them, emp-
It is prohibited to graze animals near or above tying it in Kinpit-ek. But the spirit of Kinpit-ek
water sources. Fields above water sources are never returned.
tilled manually, without the use of water buffalo
(carabao) for plowing. The breath and excreta of If it does not leave the area when offended, the
cattle are believed to be repulsive to the nakin- nakinbaey is believed to produce less water, or
baey. In Gueday, the community also prohibits cause stomach problems among the users. The
grazing and using carabao in the fields at the foot volume of water from most sources has report-
of Mt. Mong-o. Cattle excreta are considered to edly been decreasing. Old persons attribute this
be repugnant to the spring there. Mt. Mong-o is to the non-practice, for about 60 years now, of
also believed to be home to their pinading (a the legleg, an appeasement ritual.
supernatural being).
These culturally proscribed behaviours are all part Ownership

of the inayan or lawa concept that governs the Maid kenkuas nan danum. Kuan am-in ay ipugaw
day-to-day behaviour and relations of the Besao nan danum…
people. The people themselves have defined the (Nobody owns water. Water belongs to everyone.)
inayan concept as the embodiment of Besao cus-
tom law: “Our customary laws are embodied in Water is considered as a shared resource that
the inayan or lawa, which discourages any act that cannot be privatised through contemporary
causes harm to anybody or anything, and forbids water rights instruments. While ownership is
the violation of norms. It appeals to one’s con- communal, priority rights to water systems are
science to judge the rightness or wrongness of vested in the community or farmers who first
what one does or plans to do and cautions the per- tapped the said system for their use. Natural
son through some form of ‘punishment’, to be car- rights are also claimed by the community living
ried out by Kabunian (god), for wrongdoings. It is where the water naturally flows. No one is
allowed to divert water from its natural course, Irrigation

nor from existing irrigation systems, without con- Nan ikak-an isnan danum, ay waay initdon di
sent from the community or communities Kabunyan isnan ipugao id idi…Maid kenkuas
depending on it. With agriculture as the main- danum; kuan am-in ay ipugao. Paypayew nan
stay of life in Besao and rice as the staple food, kinkua’s nan danum. Nan payew nan kuan di ipugao.
water is regarded as highly as land.
(What we do with water has been taught by the
In cases where water sources are found within Gods to the people of old… Nobody can claim
traditionally-held private lands, the land-owner ownership of the water. Water is owned by all
has all rights to the land, but not to the water. He people. The rice fields own the water. Rice fields
can only have priority use of the water. He cannot are owned by man…)
divert or stop the flow of the water at his own (Galeled Anosan, 85 years old, Besao East, March
discretion. A case in point here is the Kapusean 2003).
source in Suquib, which is found within a rice field
belonging to Gan-i. Gan-i and his present descen- Out of the 88 communal irrigation systems listed
dants have been blessed with a water source by the municipal agricultural office, 78 are classi-
right in their rice field. This means he can plant fied as ‘private’, meaning that they were pri-
rice all year round if he wants to. But the spiritual vately constructed by the farmer / user. A closer
respect for water, together with community look into these private irrigation systems reveals
rights to own and access the water prevailed over that they are the traditional irrigation systems
Gan-i’s rights. As Joaquin Anosan of Suquib used by the parents and / or grandparents of the
recalled, all the farmers using the Kapusean present owners.
source downstream of Gan-i’s field agreed to give
a part of their harvest to Gan-i, to compensate him To illustrate the traditional water management sys-
for his lost opportunities in not farming his field. tem that still prevails today, let us take a look at
Today, Gan-i’s grandchildren have been allowed to Kapusean in Suquib. Kapusean is a spring located in 67
use the rice field, but are restricted by the commun- one of the corners of Gan-i’s rice field, above the
ity from using farm animals for tilling. residential area. It is believed to be inhabited by a
spirit. Adults described Kapusean during their child-
Rights to access and use of water for irrigation hood as kega nauneuneg and kaeegyat ay ilaen
come with the right to land. The transfer of (seemingly very deep and fearsome when seen).
water rights follows the transfer of land owner-
ship, through sale, barter or inheritance.
Water management systems

Based on Besao municipal data, there are a total
of 51 potable water sources in Besao (MHO,
1992) and 88 irrigation systems. Most of these
potable water sources are springs and creeks,
while rivers are the main source of irrigation
water. Based on municipal assessments, 73% of The Kapusean Water Source in Suquib, Besao, Mt. Province:
the total population has access to domestic water located in a privately-owned rice paddy – © E. Bang Oa
supply, where access is defined in terms of suffi-
ciency and potability.
Kapusean is a traditional irrigation water source,
which presently serves 15 ha. of rice fields
belonging to 219 farm-owners. Its outflow is
divided into two irrigation systems, called
Kapusean East and Kapusean West. Kapusean

East serves some 5.5 ha. of rice fields owned by 99
farmers, while Kapusean West serves 9.5 ha. of
rice fields, owned by 120 farmers (Municipal
Agricultural Office, 2002).
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 and
Kapusean Service Area: 15 ha. of rice land owned by 219 Napuki. These dumapats are informal organiza-
farm families – © E. Bang Oa tions, particularly concerned with the equitable
access to and distribution of water. There is no
designated head for each dumapat, but leader-
Apart from the mud retaining walls of the rice ship is usually attributed to the knowledgeable
field, no development has taken place at elders and / or those who are articulate.
Kapusean. Small intakes were made in the walls
68 in the left and right sides of the rice field, to
direct the water to the rice fields downstream. Membership and responsibilities
Each of the rice fields downstream has a water Membership is based on ownership of land that
outlet to direct water flow from one field to the was originally designated for irrigation in the
next. These outlets are carved into the mud or establishment of the irrigation canals, and along
stonewalls of the rice field and may be supported the down-flow of the water. Present-day farmer-
by a wooden or bamboo trough. irrigators can trace their families’ membership of
the dumapat back at least four to five generations.
All decisions regarding irrigation water are taken

at the dumapat level – from the establishment of
irrigation canals, and day-to-day maintenance, to
conflict resolution. Dumapats are particularly
active during the dry season, when water supply
decreases. At the end of the planting season, in
January to February, the dumapats start what
they refer to as menpabala isnan danum, which is
literally translated as ‘to bring out water’. This is
the process of cleaning up, weeding and rehabil-
itating structures in the water source area and
The main irrigation canal – © E. Bang Oa irrigation canals, to facilitate the easy flow of
water to the rice fields in preparation for the dry
season, that usually runs from March to May.
Through use, Kapusean is therefore ‘owned’ by Each member family of the dumapat sends at
all the farmer-irrigators along the down-flow least one representative to these cleaning-up
from the spring. Farmer-irrigators using a com- activities. Members who are not able to partici-
mon water source are grouped into a dumapat. pate in these activities are fined in cash or in
kind. What or how much they contribute is usu- water has to be given to the next farmer in line
ally based on the absent member’s means. In when it is due.
most cases, an adequate ‘fine’ would be to pro-
vide snacks or a meal for those who worked in To minimize crop loss due to water scarcity, farm-
the irrigation system. ers plant less during the dry season, according to
the estimated capacity of available water. The
The decrease in the water supply during the sum- iBesaos are also conscious of the need to keep
mer season prompts the dumapat to watch over the water clean. Clothes and chemical / agricul-
the equitable distribution of water to the fields, tural equipment are washed at a distance from
through a process known as mananum, which water sources and bodies.
means ‘to water’. (Mananum also refers to the
person doing the watering.) Watering the fields In the spiritual realm, all dumapats are expected
is done through the banbanes (turn-taking) sys- to perform the legleg annually during the start
tem, where each dumapat member has a sched- of the dry season, usually after planting.
uled time in which he / she can water his / her Traditionally, the performance of the legleg is
fields. In the past, the schedule was based on the believed to ensure continuous production or
rising and setting of the sun. Today, it is conve- generation of water. The legleg is a cleansing rit-
niently scheduled into two time slots: 6 a.m. to 6 ual to appease and please the nakinbaey. These
p.m. and 6 p.m. to 6 a.m. It takes about five days ceremonies are usually officiated by community
for each dumpat to complete a full banbanes elders with the participation of all water users,
cycle. especially the dumapat (irrigator groups). Elders
and dumapats kill a chicken or pig near the water
During the banbanes, the dumapats have the source as an offering to the nakinbaey. After the
right to divert the water flow in order to water sacrifice, the elders proceed to read the gall blad-
their fields, but only within the specified time der(1) of the sacrificial animal. Based on the read-
allotted to them. Kapusean 1, for example, can ing, the elders recite a sapo or prayer directed at 69
direct all water flow to its penged, or canal, from the nakinbaey, calling on it to stay and not to
6 a.m to 6 p.m on the first day. This is achieved by reduce its flow, but instead to increase its water
building temporary mud walls that cut across the production. They boil the chicken meat with itag
canal(s), or temporarily removing the troughs (salted dried pork). When cooked, another sapo
that supply water to other fields. During these is recited this time inviting the spirit to partake of
watering periods, members of each dumapat are the food. After eating, the elders and dumapats
expected to wait, and watch for their turn. may proceed to a designated dapay(2). Here they
kill another chicken and eat it before everybody
Once a field is filled up with water, the next field- goes home and observes a ngilin for the follow-
owner makes sure that the temporary mud wall ing three days. Ngilin refers to the traditionally-
is removed to allow water to flow into his field. observed rest days associated with the rituals and
He also temporarily blocks the water from flow- belief system. In this instance, all those who par-
ing away from his field. If a turn is missed, one ticipated in the legleg are expected not to work
has to wait for the next cycle. Dumapats there- on the farm and are banned from death wakes
fore keep vigil to ensure that their fields are within the three days period.
watered.
At the individual level, farmers used to perform
Thus, in summer, it is common to see groups of the say-at after planting rice. This is a ritual per-
people watching over their fields day and night. formed by farmers to ensure the overall wellbe-
At night, the mananum exchange stories, while ing of the plants. A chicken is killed beside the rice
awaiting their turn. Sleeping during the watch – paddies as an offering to the anito (spirits). The
especially before one’s turn – and missing one’s accompanying sapo basically includes an appeal
turn are usually regarded as being slow and irre- for a continuous supply of water, on which the
sponsible. There is strict observance of the times rice plants depend (Ag-a, Bagayo, 2003).
allocated for watering fields. Whether or not
fields are fully watered during one’s turn, the
Domestic water supply Maintaining the watershed / forest

All barangays (lowest political subdivision in the Besao is a watershed for the Abra river. Streams
Philippine government system) in Besao have and creeks flowing from the Angasan and
their designated water sources for domestic pur- Buasao watershed drain to the Layugan,
poses. Based on year 2000 municipal data, 73% Guinawang and Balas-iyan rivers, which are all
of the total population has access to domestic tributaries to the Abra river. Water manage-
water through water works systems. Water ment involves the peoples’ recognition of the
works systems are community-managed. Each relationship between forest and water
community is obliged to maintain and manage resources and the manner by which the iBesao
its water sources by cleaning and rehabilitating use and maintain their forest lands. The iBesao
installed pipes or tanks when needed. Each com- have a tradition of selective logging and make a
munity must also protect its water sources from conscious effort to regenerate forest cover, by
pollution, forest fire and erosion. Most of the maintaining the pagpag (mossy forest) and
water sources are found in the mountains out- batangan (pine forest). The community obtains
side the settlement areas. Community initiatives its forage, fuel and timber from the pagpag,
to sustain their water supply involve fencing off which also serves as hunting grounds. The mossy
the water sources, supporting natural forest forest is communally owned.
regeneration and voluntary reforestation.
The Batangan (pine forest)
Water is piped from the source into tanks in the The batangan is the dominant pine forest in the
community. From the tank, water is either municipality, covering about 8,484 ha. in total,
fetched or is piped into private houses. People some 45.5% of the total municipal land area.
who are not community members may fetch
water from the tank but are not allowed to
install pipes to supply water outside the commu-
70 nity or defined service area. Temporary arrange-
ments about sharing water works services may be
agreed upon between the family / community
concerned and the user-community on occasions
with a high water demand, like weddings.
Conflict management
Conflicts arising from irrigation water concerns
are handled from the personal to the dumapat
levels. Most iBesaos do not remember any major The batangan – © E. Bang Oa
intra- or inter-community conflict over irrigation
water that has been settled beyond the dumapat.
In Besao proper, community members can only The batangan are privately-owned, wooded lots
remember petty disagreements, such as water and are a major source of timber and firewood.
theft / diversion and ‘stealing’ a turn, as the usual A batangan may be individually owned, but most
cases of conflict in the area. These are usually of the batangan in the area are owned by the
settled between the victim and the suspect. clan. This is known as saguda or ‘family / clan
Stories of physical aggression in the fields inheritance’. All clan members have equal rights
among the mananum are common, though. to the timber resources in the batangan, based
There are stories of men and women in heated on rules that vary from clan to clan, depending
arguments over untimely transfer or blocking of on the availability of resources. Ideally, a member
water. These may involve physical aggression, is allowed to cut down about 3-4 trees at a time
including women fighting in the rice fields. for personal and immediate use only. A member
These confrontations and petty fights, in the is expected to plant trees to replace those he has
eyes of the iBesao, are usually enough punish- cut down. This same member will only be
ment for the guilty party. allowed to draw timber from the batangan again
after about 25 years, when the next generation experiences a deficit of about 49,210.1 l. per day
of trees is expected to have matured. during the dry season which is felt most in the
municipal centre.
Protection and day-to-day management of the
batangan are the responsibility of the whole Average Surplus Deficit
clan, where each member keeps a mental note of Discharge (litres/day)
access and use. Where clan members have (litres/day)
migrated out of the Besao, the batangan are left
in the care of the elders, or any member remain- Wet season 448,530 45,850 —
ing in the area. The caretaker takes day-to-day
Dry Season 353,470 — 49,210
decisions, ensuring that no member abuses his
own or another’s rights. Abuse of rights, con-
flicts, punishments and other matters may be
taken up during clan reunions. Cutting trees The iBesao have identified the following factors
from individually or clan-owned pine lots with- as contributing to this situation:
out the permission of the owner(s) is considered
theft. Owners can demand payment or confiscate • Failing to appease the nakinbaey through
the wood that rightfully belongs to them. Non- the legleg:
members can borrow lumber from batangan As noted earlier old people in Besao attribute
owners. The loan is repaid in the form of trees or the progressive depletion of the water supply
lumber, without interest. to a failure to carry out appeasement cere-
monies for the water sources. Over the past 60
years people in the municipality have adopted
Pagpag (mossy forest) other, non-traditional beliefs or religious
The mossy forest remains a public domain in systems.
Besao and is used primarily as hunting grounds. 71
Food supplements like honey, medicinal herbs, In recognition of traditional practices and
and raw materials for basket weaving, wooden values, however, there is increasing commu-
utensils and implements may be gathered from nity support for the revival of the legleg, as
the pagpag. The mossy forest covers some 4,379 is reflected in the proposed ancestral domain
ha., mostly in the higher and steeper slopes of management plan.
the distant mountains. Most of these areas
remain free from agricultural expansion, but the • Forest clearing:
municipality reports that biodiversity is decreas- The main causes of the depletion of forest
ing, due to unregulated hunting. Scattered resources are forest fires and indiscriminate
within the forests are cultural sites, such as ritual logging. Farmers may accidentally create forest
grounds, sacred sites and areas believed to be the fires when they start burning for kaingin.
dwelling places of supernatural beings. Farmers who graze animals also deliberately
burn the forest cover in the mountains to
facilitate the growth of grasses for forage.
There are reportedly some 104 ha. of critically
denuded areas in Besao. (Municipal Profile,
2000).
Emerging trends and issues There is also increasing demand for wooden
housing materials and other commercial
Depletion of the water supply products, both within and outside the muni-
Besao has 51 sources of potable water, with a cipality. This leads to unregulated logging,
total average daily discharge of 448,530 l. during exacerbated by the ready availability of
the wet season and 353,470 l. during the dry sea- chainsaws. Some owners are simply irre-
son. At the present total average daily consump- sponsible. Unresolved boundary conflicts
tion requirement of 402,680 l., the municipality between the Besao and the municipality of
Tadian have also contributed to unregulated Commercial crops grown in the municipality
logging by people from Tadian forest areas are temperate vegetables, such as carrots,
traditionally managed by Besao. cabbage, beans, peas and green peppers,
which are marketed either in Benguet or in
To curb this progressive trend towards defor- the Isabela provinces. Other high-yield crop
estation, formal and traditional initiatives varieties have also been introduced in the area
have been undertaken. Local government as promising cash crops.
decrees ban the transport of timber outside
the municipality, and prohibit the burning of • Inadequate and inefficient infrastructure
mountainsides, with fines for violators. Inter- support:
barangay policies have also been drafted, so This refers to a lack of water reservoirs and a
that each barangay has its own area of comprehensive distribution system, with result-
responsibility in terms of fire prevention and ing inequalities in the supply of domestic
logging control. A barangay is accountable water, in particular. With the depletion of the
for any forest fires that can be proven to have water supply in the dry season, domestic water
started from its side or territory. This is a rein- supply scarcity is felt especially in the built-up
forcement of the mendepdep (‘putting out area of Kin-iway. Kin-iway serves as the munic-
fires’) or the traditional voluntary effort ipal centre, and is where the municipal govern-
among community members to be vigilant ment offices, hospital, two schools, the market
about forest fires, especially when properties and business establishments are located.
like granaries, timber, fruit trees, animal
fences and houses are involved. In addition, the relocation of people to Kin-iway
from the interior and other areas for jobs and
Planned reforestation and other actions that other opportunities also contributes to the
encourage the natural regeneration of trees high water demand there. Though supplied by
72 in forest and batangan areas are traditional one of the biggest water sources in the
practices among the iBesao. A local govern- municipality, water loss is believed to be high,
ment program started in the 1930s has lent given the distance it has to travel.
institutional support to these traditions. The
Mayor at the time, Abundio Gawigawen, • Overlapping claims:
encouraged the planting of tree seedlings The people of Besao, like most indigenous
near settlement areas to provide firewood, peoples in the country, are denied their right
as shown in the timeline above. Inter- or to fully own and manage their ancestral lands
intra-barangay communal forests have also under the Regalian Doctrine, which is the
been established. One of these is the Lagat framework of national policy. In addition, the
communal forest, established, co-owned and whole Cordillera region has been declared a
co-managed by the Lacmaan, Ambagiw, forest reserve, through the enactment of
Gueday, Agawa and Tambuan barangays, Presidential Decree 705 (Philippine Forest
under agreed rules and regulations. Act) in 1975.
These initiatives, however, continue to be At the local level, there are disparities
challenged by the prevailing need for cash between the territorial definitions of local
income to support socio-economic needs like governments and the areas traditionally
education, health and shelter. Development defined and managed by the people. With
initiatives, such as mining and tourism pose the implementation of the Indigenous
other challenges. Peoples Rights Act (RA 8371) of 1997, these
conflicts have become very pronounced.
• Expansion of commercial vegetable produc- Besao claims ownership of the Buasao and
tion as a promising source of cash income: the Banao water sources, stating that they lie
Commercial vegetable production has within its ancestral territory, based on tradi-
extended the use of agricultural lands, there- tionally managed areas and the natural
fore intensifying the demand for water. water flow. This claim is being contested by
the neighbouring Sagada municipality, in its Thus, for the remaining watersheds and natural
own efforts to delineate its ancestral lands. resource areas to be sustained in the light of
securing food production, contributing to curb-
• Proposed development of tourism, logging ing the progressive climate change phenomenon
and mining in the area: and furthering its commitment to upholding
The municipal development plan has identi- human rights, the government of the Republic of
fied tourism, logging and the mining industry the Philippines and its agencies should:
as “alternative development strategies”. • Fully recognize indigenous peoples’ right to
These activities will mean increased competi- self-determination and their inherent right
tion for water and other resources. Without to their ancestral lands by strengthening the
peoples’ conscious and vigilant participation IPRA and having the political will to imple-
in the development processes, their rights ment it fully;
may be usurped. The community’s free and • Institutionalise the recognition and
prior informed consent should therefore be strengthening of traditional water owner-
sought before any development initiatives ship, rights and management systems and the
are undertaken. local initiatives for sustainable development
of water and other resources;
• Provide appropriate support services for
sustainable economic activities that do not
contribute to unbalanced natural resource
depletion and extraction;
• Ensure that development interventions
Recommendations build on the capacities of indigenous peoples
for participative planning and governance.
Based on the observations and discussions in this
paper, I propose the following recommendation. At the international level, we call on govern- 73
ments, financial agencies, donor communities,
Among us indigenous peoples, let us strengthen the media, academia and civil society organiza-
our organizations and networks from the local to tions to:
the international levels to: • Ensure that the water agenda is not treated
• Defend our lands and resources from merely as a stakeholders’ concern. Water, as a
encroachment and the usurping of our rights non-renewable, natural resource and the
to determine our own development; basic element of life should be included
• Define and promote an indigenous perspec- under the rubric of human rights. In this
tive on water and water development; regard, the United Nations should adopt the
• Strengthen existing indigenous peoples’ Universal Declaration on the Rights of
global networks to act as a watchdog for Indigenous Peoples;
water resources and concerns; • Recognize indigenous peoples’ right to own
• Build on our skills and capacities to docu- and manage their ancestral and traditional
ment our territories, practices and values in lands and territories, including all resources
view of a more intensified educational cam- therein;
paign about our rights to own, manage and • Support the strengthening of indigenous
control our land and resources. In this regard, peoples’ organizations and networks to
we should establish a database of indigenous define and promote an indigenous perspec-
traditional technologies and management tive on water and sustainable water develop-
methods, as well as rights and access to our ment;
water resources; • Promote indigenous peoples capacities to
• Develop our traditional institutions and manage their own territories sustainably,
skills, to negotiate and pursue our rights of through research and documentation of
access to our water sources and their devel- effective practices and technologies;
opment, based on our own plans. • Build capacities of indigenous peoples to
carry out research and to document their
experiences and duplicate their good prac-

tices with regard to water;
• Develop economic programs, activities, and
alternative technologies that promote water
sustainability;
• Stop trade and privatisation of water.
Instead, develop equitable and efficient water
supply and distribution systems and services
without prejudice to the prior rights of the
owners of land on which the resource is found;
• States, banks, finance agencies and donor
communities should institutionalise water
sustainability by refraining from funding
water extraction and polluting development
initiatives. In line with this, a participative
review of existing development initiatives
affecting water quality and quantity (e.g.
mining, tourism and commercial agriculture)
should be undertaken towards the creation
of more sustainable development directions
and reforms. Governments, private corpora-
tions and any other entity responsible for the
destruction or pollution of water and its
sources should be held accountable.
74
ENDNOTES
(1) the reading of the gall bladder is one of the characteristic
features of Igorot rituals where the position of the gall
bladder in relation to the liver is considered an omen. In the
legleg, a delway, where the gall bladder is not covered by the
liver, is the best reading. This indicates continuous water
supply for the season.
(2) Dap-ay. Refers to a ground level structure which serves as

the physical base of the council of elders where community
rituals and ceremonies and public i.e social, economic and
political functions are performed. The dap-ay also serves as a
men’s dormitory where young men are taught by the elders
mainly through story telling.
REFERENCE LIST
Besao Municipal Profile 2004 (draft).
Besao Municipal Profile, 2000.
Brett June Prill, Stonewalls and Waterfalls: Irrigation and
Ritual Regulation in the Central Cordillera, Northern
Philippines. 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, University
of Michigan, USA.
Besao Ancestral Domain Management Plan, 2000.
SRA-MBN Operationalization Plan, Besao, Mt. Province, 1997.
Primary sources
Ag-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,
Kinaud, February 2003, 64 years old, Besao West, Besao, Mt.
Province.
Mangangey Annie, February 2003, 55 years old, Suquib, 75
Martin Mariano, February 2003, 78 years old, Besao West,
76
Nong-Goubi! Nong-Goubi!
Saari Kambong
Tuirel 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 for
Organization, Research and Education (CORE), Manipur, India. He coordinates various cross-sectoral
research projects on public health, environment, human rights and gender and has participated in
several international meetings to advocate ethnic minority rights.
Anna Pinto is Director of the Women and Children division at CORE. She is actively involved in the
advocacy of indigenous women’s and children’s rights.
laifungbam@coremanipur.org
The ancient rhyme and folk-story reminds the Water is not only an everyday preoccupation of
Meitei of Manipur, India, of the Nong-Goubi the Meitei. It is a central element of the
(‘rain-thirsty bird’ or crow-pheasant) – a totem Sanamahi Pakhangba ancestral belief system,
bird of the Meitei Nation (Manipur) – who was that the Meitei have been practicing for millen-
too busy looking after her children to take part nia. The belief is based on ancestor worship with
when all the animals, birds and people were strong elements of animism.
working to maintain and clean the ancient
waterways (tuirel, khong, khongbaan) and dykes Sanamahi and Pakhangba were brothers, ancestral
(torbaan) system. These made human habitation deities of the Meitei. Together and individually,
and agriculture possible in the Manipur or these two ancestors occupy the supreme male
Imphal valley – the ancestral lands of the Meitei, positions in the Meitei pantheon along with Ima
occupying a central watershed in the Indo-Burma Leimarel, Yumjao Lairembi, Panthoibi, Phouoibi,
region. In the story, Nong-Goubi was punished Emoinu (Chahong Ngahongbi, the munificent
and prohibited from using the water and had to and bountiful) and other female ancestors.
wait for the rains each year.
Pakhangba is revered by the Meitei because of
The 2000 square km. Imphal valley, originally a his political and social significance, particularly
lake fed by numerous rivers from the encircling for the development of the Meitei as a nation of
hills, is drained by a single river, the Imphal river, several different tribes towards the end of the
to the South of the valley. Over a period of time, first millennium, according to the estimates
according to the oral histories of the Meitei, the made using the western calendar system. The
valley partially dried itself out and was settled first chiefs of the Meitei, called Meidingu, were
permanently by people of the surrounding hills, named Pakhangba (as a title).
who later evolved into the Meitei people. Over a
period of decades, settlers then proceeded to The first Pakhangba, also known as Nongda Lairen
harness the waters of the valley, channelling the Pakhangba (the Dragon or Serpent) is believed to 77
major rivers into more permanent courses, take two forms, one divine and one human. The
deepening the permanent courses of the water human form had significance in the political his-
channels and constructing massive earthwork tory of the Meitei nation, in the making of
dykes. The subject is dealt with comprehensively in treaties, agreements, and alliances between the
an ancient treatise called tutenglon (the science many indigenous tribes of the region.
of waterways management).
The divine form is significant to the spiritual life
Some lands were reclaimed as permanent dry of the Meitei as individuals and as a society.
land for agriculture and habitation, some were Pakhangba in its divine form is a water serpent or
left open to seasonal flooding so as to facilitate a dragon. His element is water.
wet rice agriculture, and some areas retained as
pat or reservoirs of water, with the capacity to The link between water and important ancestors
absorb the annual monsoon floods and conserve who presided over political, social and religious
the source of water through the dry months. matters, is significant. A very brief overview of
the aspects of Meitei life, lands, waters and our
The greatest such reservoir is the Loktak-pat to environment is useful for understanding its
the South of the valley, from which the Imphal significance.
River drains the entire valley. This is now almost
the only such wetland left, though there were The Meitei nation was forged by alliances and
more than two hundred recognized and named treaties between more than nine different tribes,
wetlands in oral and written history. The Imphal who still maintain their individual identity, but in
valley is therefore not merely a natural feature of a subdued form – subsumed under the pan-Meitei
great environmental importance but one of the nation. Some of these clans originated from sep-
greatest artifacts of the Meitei nation. arate tribes whose initial settlement of the valley
by legendary ancestors is marked along key
waterways. For example, the Pleiades, the seven
sisters of the sky, journeyed along the Iril river These institutions are entrusted primarily to the
with Iril and gave birth to the ancestors of the Maibi, the institution of Meitei shaman priest-
Sarang-Leisangthem clan, one of the component esses that also occupied a high political profile by
clans of the Meitei nation and also a precursor of advising the chiefs on temporal matters, rev-
the Kabui people in the nearby hills. enue, war and peace negotiations, domestic
arrangements, and as oracular advisors of indi-
The Meitei established its ancestral domain in the viduals and the collective.
central region of what is Manipur today in a
broad high valley that used to be entirely covered The Maibi Loisang, a formal college or institution
by lakes and wetlands (paat) and water channels of the Maibi, is the repository and vehicle
or tuirel. The settlement of this valley involved through which the Meitei cultural, spiritual and
sophisticated hydraulic engineering, informed by social – including traditional – knowledge is
a deep understanding of the hydro-dynamics of transmitted from generation to generation. This
the valley, which was extremely hostile to human is done in many ways but the most important is
habitation and cultivated food production. the prolonged annual ritual worship, called the
Lai Haraoba or the ‘Happiness of the Ancestors’.
The precise origins of human habitation of the
valley have not yet been determined, but it is During the Lai Haraoba, different clan and tribal
clear that there were several waves of occupation ancestral deities, called Umang Lai or forest
at different periods, many of these pre-historic, deities, are worshipped through complex and
some ancient and some of later date. strictly ritualised ceremonies and devotional acts.
The community participates as a whole, but
Extensive settlement and what may be clearly women, men, youth and children also participate
identified as a civilization and culture, was as segregated groups. It is through these segre-
achieved at the latest by the 7th and 8th centuries gated groups, partaking in the Lai Haraoba, that
78 during the time of Taothingmang and the Maibi impart traditional cultural and techno-
Naothingkhong, two brother chiefs, who logical knowledge and values.
together devised and engineered an extensive
system of canals and dykes throughout the valley. The deities are always derived from and return to
This of course made intensive settlement possi- the waters, channels and wetlands at the begin-
ble. The canals and dykes were designed in a ning and end of each Lai Haraoba. The spirits of
grid, running precisely from North to South our ancestors are in communication through the
across the valley and with connecting channels vehicle of water and rivers. This is one of the core
from East to West. The only deviations are where elements of the Sanamahi Pakhangba worship
large natural features like hills in the middle of among the Meitei.
the valley intrude in the line of the dykes or
when the natural course of the rivers strongly In every household, a place is kept sacrosanct and
deviates from a straight line. special for Sanamahi, the revered brother of
Pakhangba. An earthen pot filled to the brim
Meitei architecture, therefore, traditionally did with water from the rivers or canals is always
not only encompass house or building design and kept in the Sanamahi kaa-chin (corner) of every
precepts, but laid down strict norms for the plan- home. As a symbol of the great mother Leimarel,
ning and layout of settlements, in relationship an earthen pot filled with water and covered
with the ubiquitous grid of canals and channels. with fine sacred muslin is placed at the second
Meitei longhouse settlements were built with third of the length of the Meitei longhouse, at
every house facing east. Every house therefore the main support pillar.
had direct access to flowing water for domestic
needs as well as for maintenance of kitchen gar- Not only is water a sacred symbol to the Meitei as
dens and fishing. Maintenance of this system a core element in every ritual from the domestic
required very careful and regular attention, and social to the greater public festivals, but water
which was achieved again through the spiritual, bodies themselves are held to be the manifesta-
cultural and social institutions of the Meitei. tion of deities. Thus, to the Meitei, the Loktak is
not merely a sacred lake, but the embodiment of labour. The young girls perform it after bathing
the goddess (lairembi) Loktak herself. So too are and dressed in fresh clothes with fresh flowers in
the various waterways, such as the Iril or the their hair. They usually go in groups, making it a
Nambol. Natural conjunctions of hills and water semi-recreational activity. Preliminary courting
bodies are held to be particularly sacred and the between young men and women frequently
traditions require the complete protection of flora takes place during this chore.
and fauna in such spots. Even minor harvesting of
produce is strictly taboo, except for ritual or spe- Bathing itself is a social ritual, with pleasant
cially sanctioned medicinal purposes. recreational overtones, again given the proximity
of good water sources. Traditionally, young
The ancient waterways and dykes of the Imphal women also perform this ritual in groups, typically
valley served many important purposes in addi- helping each other wash their hair.
tion to land reclamation and water management
processes. Up until less than a hundred years ago The maintenance of water bodies, both ponds
it was possible to cross the valley, foothills to and streams, including canals, is also extremely
foothills, north to south, by water. Considerable important because fish is an integral element in
cultural and social interaction between clans and the Meitei diet. Until a few years ago even in the
tribes otherwise separated by extensive, incon- capital of Imphal, the smaller canals around the
venient wetlands – which are even more difficult households were well maintained and women’s
to negotiate in the long wet seasons – was fos- fishing nets could be seen placed in the water to
tered by this transport system. catch a few fish for the next meal. In addition to
the fish, a wide variety of water vegetables and
The importance of this system is marked by the insects, including rare mosses and fungi comple-
annual boat festival, Heikru hidomba, held in the mented the traditional diet. The traditional
moat encircling the one square mile of the Meitei household was therefore comfortably self-
Kangla fort. This is the most sacred site of the sufficient in food, which required little effort in 79
Meitei people, and the seat of many of its shrines harvesting and none in cultivation. This wealth
and traditional governance institutions, the from the waters of the valley might have con-
heart of the water channels network. The cere- tributed to the development of the complex and
mony of the boat race dates from the 9th century sophisticated culture of the Meitei people, in this
and is held towards the end of the rainy season, small valley which is almost inaccessible, except to
when the waterways are at their highest. There is the determined traveller.
an ancient treatise on boat building, including
the construction of ceremonial boats, which Another element is the maintenance of water
deals not only with the craft, but also with the art biodiversity and prosperity through worship. The
of boat building and navigation. In times of indigenous ngamu, a small fish, is very significant
drought the chiefs of the Meitei and Angom to the Meitei. The ngamu is very sensitive to
clans are required to perform rituals from sacred unclean water and cannot survive in polluted
ceremonial boats in order to propitiate the waters. Every year, the Meitei perform a ritual
deities responsible for rain. Depending on the called Ngamu üssin sin-ba (he replacement of the
severity of the drought, various ceremonies of ngamu), when fingerlings are released in every
different elaborateness are performed in and water body to bring prosperity to the people. The
with regard to the ceremonial boats, to invoke ngamu thus symbolizes renewal and prosperity,
adequate rain. making it an important item in the medico-
nutritional practices of the Meitei. The ill and
Water plays an important role in the humbler aged, expectant and new mothers, weaning
rituals of day-to-day life as well. Potable water infants or children who are not thriving eat this
for the household is generally fetched every fish as a healing food since its nutritional and
evening by the marriageable girls of the Meitei medicinal qualities are highly prized. Maintain-
household. Since such water sources have not ing water bodies for this food alone is therefore
traditionally been distant or inaccessible, the critical to preserving the traditional pharma-
chore is not generally considered a task of heavy copoeia and diet of the Meitei.
The system of watercourses, earthen dykes and cherry blossom in Japan, has now died with the
wetland reservoirs was maintained through a dual destruction of the wetlands themselves. The
system of taxation and voluntary community poetry and songs have become irrelevant and
labour. The most important traditional tax of the meaningless to those who have never seen the
Meitei was the lallup, misinterpreted by the blooming courses.
British as a slave system and abolished. According
to this tax, every able-bodied man between 16 The growing distancing from, neglect and ero-
and 40 years of age was required to contribute sion of these daily and annual cyclical practices of
40 per cent of his annual labour to the chief. In the spiritual and cultural basis of Meitei and
times of war, this labour usually implied military water relationship has threatened our society
service. Some, particularly those who were gifted and environment, and led to the severe and
or skilled in a particular craft or art, were apparently irremediable crises we face today, cul-
required to make those particular skills available. turally and economically.
In times of peace, the vast majority were required
to contribute their time to developing and main- The degradation and destruction of this unique
taining the major earthworks and de-silting the valley is not merely the story of neglect and pop-
main water courses. Youth in each locality were ulation pressures. Inappropriate government
required by custom to volunteer their efforts policies as well as disregard and callousness in
annually for repairing, extending and cleaning political attitudes actively promote it, whether or
the smaller parts of the system in their own com- not this is conscious or deliberate. Constant
munities. appeals and pressures from concerned environ-
mental groups and heritage lobbies are disre-
The previously well-preserved wetlands each had garded. The wetlands of Manipur are being rap-
their own well-known and beloved characteris- idly and ruthlessly destroyed by a political and
tics. The Loktak-pat of course, with its unique economic elite backed by government policy,
80 floating islands of grasses and once-thriving, however inexplicit, to ‘reclaim’ as much land as
flora, fauna and aquatic species, is the home possible for urban and agricultural expansion.
and birthplace of an exquisite sub-culture of
the Moirang people, who retained political The indigenous Meitei religion, with its strong
independence from the Ningthouja chiefs until animistic and ancestor worship elements has
the 13th century. Epic poems have been written always maintained extensive natural groves as
about the heroes and heroines of this exeptional shrines to various deities across the valley. These
place. It may be emphasized that, despite the have been important ecological assets, since
Loktak being declared a Ramsar site in danger by most of the lands are primarily grasslands and
the World Conservation Union (IUCN), despite marshes rather than dense forest. These groves
annual flooding that wreaks havoc among the represent the major tree cover in the valley. Both
agricultural population and more recently the grasslands and shrines of trees have been, in the
urban population, the government has devised last few decades, carelessly destroyed with a
no policy for the protection of wetlands, nor total ignorance and disregard for their cultural,
does there appear to be any intention of doing economic and ecological value.
so. Regretfully, this is now almost the only such
reservoir that remains even partially. Others have The value was and is priceless. Many of the
fallen prey to land claims for unplanned urban grasses provide raw materials for the construct-
expansion in the last few decades, or fallen into ion of shelter and furniture, as well as to provide
neglect because of the feeder channels that food for humans. The grasslands and groves are
replenished them. the habitat of a variety of wildlife, now extinct in
the valley or close to extinction, such as the tiger,
Other pat, such as the Khonghampat were elephant, boar, wild buffalo, and several species
famous for the miles of pink, white or purple of deer, including the rare sangai or brow-
lotus flowers that bloomed in their seasons. The antlered deer of Manipur.
social rituals of going to view the lotus in bloom
in these pat, rather like the annual viewing of the
The valley is an important wintering area for REFERENCE LIST

Alderete W, 1999, The Health of Indigenous People. WHO,
many migrant birds, and the wetlands are home
Executive Summary.
to an immense variety of fish, minor fauna,
insects and plants, that have great value to Bhagyachandra Singh L, A critical study of religious
philosophy of the Meeteis before the advent of Vaisnavism
inhabitants as a source of food and medicine. in Manipur.
Centre for Organization Research and Education,
These are just a few examples of the Meitei’s
Right to land and water in Manipur. A report of the
spiritual relationship with water, a relationship violations of the rights of the Indigenous peoples in the
that is in essence a cultural system of water north east region of India.
management, maintenance, purification and Centre for Organization, Research and Education, 1999,
constant affirmation of water as a core element Criticism and constructive submission regarding the study on
of Meitei life. treaties, agreements and other constructive arrangements
between States and Indigenous Populations.
There are many reasons for this dissolution of the Chadda laihui (archival document).
water management systems. Recognition of Cheitharol Kumbaba (archival document).
indigenous governance systems and authorities
Gangumei Kamei, A History of Manipur.
has invariably been faulty and selective on the
part of first British, and subsequently Indian gov- Govt. of Manipur, 1996, Manipur Forest at a Glance.
ernments and policies. The primary motivation of Forest Dept., Imphal.
such policies appears to be the revenue interests Kabui C ed., 1993, Ithai Barrage. All Manipur Ithai barrage
of a select class, simplistic and inappropriate people’s organization, Manipur.
administrative procedures, accompanied by Kangleirol (archival document).
lack of investment and upkeep at whatever cost Kirti Singh M, Religious Developments
to the colonized. There have also been many in Manipur in the 18th and 19th centuries.
genuinely blind spots due to the overwhelming Manipur Association for Science and Society,
feudal, hegemonic and patriarchal characteristics Releasing Ngamu in Wetland Systems in Manipur.
81
of European and Indian political authorities,
McCulloh M, 1857, Valley of Manipur. Mrs. J.D. Marg, Delhi.
which are fundamentally in contradiction with Ningthourol Lumbaba (archival document).
indigenous norms. The combination of neglect
Pinto Anna, 2000, Common property rights of indigenous
and vested interests by the Indian government in women, north east region of India. Seminar paper Women’s
this region is destroying one of the most unique Studies Conference 2000.
ecological and cultural areas in the world.
Pinto Anna, 1997, Gender and Sustainable Economics in
Manipur. Nitya Rao and Luise Rürup eds., A Just Right,
Friedrich Ebert Stiftung, India.
Roy Burman BK, 1995 “Indigenous” and “Tribal” Peoples
and the UN and International Agencies. Rajiv Gandhi
Institute 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).
82
As a product of culture, the symbolization of water makes it possible to

transform vulnerability and unpredictability into interdependence and
continuity. The water imagery described in this paper expresses the
fragility of life in a mountain desert oasis. Rituals make it possible to
translate an effective vulnerability and dependence on water into a
concept of mutual interdependence between people and water. In the
example described here, the villagers and ritual participants perceive
water as a response to people’s attitude towards nature. They believe
that people can make springs rise up from the desert, mainly through
agriculture. Farmers are therefore not only the recipients of water and
interpreters of its meaning, but they also create this meaning through
their agricultural work and by performing folksongs, ceremonies and
rituals.
Corinne Wacker, MA in International and Comparative Law, PhD in Social Anthropology, is a researcher
at the Institute of Ethnology, University of Zurich, Switzerland. She is the author of several publications
on traditional water management.
wacker@ethno.unizh.ch
Introduction: the symbolic Tagmachig, an oasis

meaning of water on the Silk Road in Ladakh
This paper describes the symbolic meaning of Tagmachig is an oasis of 480 people on the south-
water in an oasis village called Tagmachig, in the ern Silk Road that links Tibet and China, through
Buddhist part of Ladakh in the Indian Himalayas. Ladakh, with India. At the same time, it links
It illustrates the role of ritual in attributing India – through Ladakh and the Takla Makan
meaning to water in the landscape, throughout Desert – with Central Asia and Eastern Iran. The
the annual agricultural cycle, and at times of village is located near the current border
drought or flood. between India and Pakistan in Kashmir, in the
upper Indus valley in the Buddhist part of lower
In the context investigated here, the main sym- Ladakh. Before the India-China border in Eastern
bolic meaning of water is threefold: water is Ladakh was closed in 1962, when the Indus is
understood as a mirror in which people see their frozen in winter, the Tagmachig people used to
own projections in clear, sacred lakes; in cross the river in winter when the Indus was
response to people’s behaviour, nature provides frozen and join the caravans with their two or
water or reveals springs in the desert; and water three dozen Bactrian camels, donkeys and yaks.
symbolizes the interdependence of people and They could barter spices, tea and precious stones
nature, and the fragility of the existence and for wheat, dried apricots and fodder. Some local
maintenance of the oasis ecosystem in its desert entrepreneurs and pilgrims also ventured up to
context. Applying the approaches of Lévi-Strauss Tibet(2) and Kashmir. But the closing of the border
and Victor Turner to this analysis enables us to interrupted these two thousand year-old cultural
understand the symbolism of water in a living and economic links. For the past two generations,
culture, from both a structural and an actor- Tagmachig village has become a dull, remote
centred perspective. place. Situated in a military restricted zone and in
a narrow gorge between high barren mountain 83
The symbolic meaning of water here displays the slopes and the roaring Indus river, the village has
genuine composition of a living culture, tailored very few tourists and visitors today, and many
to the local ecosystem. The specificity results from men work in the army to complement the meagre
combining local symbolism or ‘little tradition’, income from sales of dried apricots at the central
relating the experiences of daily life and village market places of Ladakh.
deities with the worldviews and cosmogonies
of ‘great (written) traditions’. The local imagery According to a local stone inscription translated
of water displayed in the landscape and in cere- by Francke (1907), the name Tagmachig or ‘Tiger
monies is discussed in the historical context of the stage’(3) refers to the decision of the Tagmachig
cultural exchange between Tagmachig and the villagers united under a local chief in the 17th
major cultural centres of Central Asia before the century, to surrender themselves to the Ladakhi
advent of Islam. For more than two thousand king, rather than join the neighbouring Dard vil-
years, caravans passed near the village, coming lages which were integrated into Baltistan and
along the southern Silk Road. Shamans, yogins(1) forced to become Muslim in the great Ladakhi-
and monks were common companions of the Balti wars (1560-1640). Seng-gerNam-rgyal, the
tradesmen and have contributed to the local Lion King of Ladakh and his Tiger lama thus
symbolism of water that is transmitted as oral became the patrons of this oasis. Ethnically, the
tradition through songs, hymns, mask-dances 480 Tagmachig villagers are either Indo-Iranians,
and other rituals. The study is based on fieldwork Mon or Dard, or they belong to the Mongol
carried out in 1997 and 2003 with two Ladakhi people, who all became Ladakhi and Mahayana
scholars: Tashi Rabgyas and Nawang Tsering Buddhists (of the Drepung Kagyupa sect) while
Shakspo. continuing their traditional folklore, beliefs and
rituals related to Bon shamanism(4), animism and
local ancestor cult. The background of these dif-
ferent traditions, intermingling in Tagmachig,
inspires the symbolic meaning of water.
Like many other oases in Central Asia, Tibet and

the Indian Himalaya, Tagmachig relies on the
seasonal melting of high altitude snow for its
irrigated agriculture in the four short summer
months. It has severe cold winter months, with
temperatures below -20 degrees Celsius. The
main crops grown are barley, wheat and pulses.
Apricots and walnuts are the principal cash
crops. The main village is situated at 2800 meters
above sea level on the delta of a small seasonal
tributary of the Indus, which is Tagmachig’s main
water source. Four additional portions of arable
land used by the villagers are situated higher in
the mountains. Additionally, at 6000 metres
above sea-level, yak, sheep, horses and dzo
(cow-yak hybrids) graze in summer. Tagmachig’s
only water source derives from a small glacier
lake in this area, fed by the seasonal snow melt.
Hymns and folksongs are the main sources of the

history and beliefs of the people of Tagmachig.
One of their folksongs(5) tells of a mythical lake up
in the mountains, and a cosmogony with three
worlds.
84 “If a white glacier on the upper end of the

valley is not formed, why should there be a
blue lake at the lower end of the valley?
If a lake is not formed at the end of the
lower valley, why should a tree of Tagmachig village is situated at a silk route branch along the
sandalwood grow there? Indus river in Ladakh, Indian Himalaya. Apricots, wheat and
If a tree of sandalwood is not grown there, barley are dried on the roofs for winter. – © C. Wacker
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 the The meaning of water
original seed-grains from the gods to the people,
and thus abundance, wealth and happiness. displayed in the landscape
The sandalwood tree is the Tree of the World,
which links the upper world of the gods, with Leaving the roaring Indus river behind and walk-
the middle world of human beings and the ing uphill towards the Tagmachig spring, one
lower world of the water deities. The symbolic passes first through fertile barley and wheat
meaning of water is transmitted in Tagmachig in fields, bordered by hundreds of apricot and wal-
the landscape along the watercourse and in the nut trees, and traverses the village with its cubic
oral tradition, including songs, village cere- houses. One walks around the small Buddhist
monies, and religious rituals by the people and monastery and the dwelling of the village god-
by the specialists(6). dess, situated at the top of the village, and follows
a footpath leading to a narrow gorge. One then
reaches the two springs of the roughly two kilo-
metre-long watercourse of Tagmachig.
The holy lake water deities, its stem in the middle world of
The springs of Tagmachig are fed by a seasonal humans and its branches reaching up to the world
glacier lake on the high mountain, behind the vil- of the gods, the Tree of the World transcends the
lage. The lake is considered sacred because those three spheres of existence(9). In some folksongs,
who are lucky can see a swastika sign in its clear collected by Francke (1923) in Tagmachig, the
water. One of the myths of creation told in earth was formed from under the ocean. Similarly
Tagmachig explains the origin of the world as a to the cosmogony found among the ancient Vedic
result of a strong whirling wind, which formed and Siberian peoples, three worlds were created,
the holy sign of a swastika. Creation is under- and a Tree of the World, or pillar of creation, links
stood in this myth as separation from an original these worlds together.
unity through a whirling force.
The springs, dwellings of water deities

The river once came straight from the glacier lake
to the village. But about two generations ago, a
landslide interrupted the flow of the river. Luckily,
two springs rose thereafter from a pile of fallen
rocks behind the village – these are the two
springs of Tagmachig. A wild rose bush grows at
the place where the first spring comes out of the
ground. The rose bush is said to be the dwelling
of an eight-meter long, black, zoomorphic water
deity, with the lower body of a snake, a Lhu-mo
(feminine). The second spring emanates from a
rock near the roots of a fallen willow tree, some
30 meters below. It is said to be less reliable than A large willow tree grows near the spring of Tagmachig 85
the higher spring and inhabited by a red Lhu © C. Wacker
(masculine). Two offering-places (Lhu-bang(7)) are
located at this spring. Lhu and Sa-bdag, zoomor-
phic spirits of the land, are vulnerable to the Each of these three spaces, Lhayül, Miyül and
interferences caused by farming, mainly from the Ogyül, is inhabited by both malevolent and
iron plough(8), construction works and pollution. benevolent creatures. The middle world is seen
Together with juniper, a bush used as incense in as a lotus-shaped space, inhabited by human
all major rituals to purify the body or a site, the beings and ghosts, while the upper world is
rose bush and the willow are the only wild trees inhabited by protecting deities, the sun, moon and
growing in Ladakh. The two water spirits thus stars. The lower world is inhabited by the water
dwell in the wilderness. spirits Lhu or Lhu-mo and the Sa-bdag spirits of the
land, which take the form of snakes, lizards, or
Water and the tree of the world zoomorphic humans, with a lower snake body
Some twenty steps below the spring a huge, when seen by humans. They relate the middle
fallen willow tree lies across the valley. Its roots world of the humans with the lower water world,
are more than five meters in diameter. The trunk while the khyung bird relates to the upper world
indicates that the tree must be more than two of the gods.
hundred years old. It is a Lha-chang tree and
nobody uses its wood. The second spring rises Water in the Buddhist creation myth
from a rock behind the roots of this tree. The Lha- The water from the first spring forms a stream,
chang willow tree symbolizes the Tree of the bordered by wild lavender, grass and shrubs.
World. In the cosmogony transmitted by Siberian, Some fifty meters down the mountainside, it is
Mongol and Tibetan shamans, the Tree of the diverted into a short canal, leading to a hydraulic
World is understood to have grown out of the pri- prayer mill, in which 120 prayer wheels are turned
mordial waters, from which the cosmos was cre- clockwise by the flow. Each wheel contains hun-
ated. With its roots in the lower world of the dreds of small pieces of paper inscribed with the
Buddhist prayer om mani padme hum (“oh jewel Buddhist prayer wheel and runs then in a smooth,
in the lotus flower”). In Indian mythology, in the regular flow to be used by the people below.
Purana and the Mahabharata as well as in the Returning once again into the stream, the water
Buddhist and Jain cosmogony, before creation flows downhill, gains speed and spills into side
there was an endless ocean of primordial water in channels, which drive hydraulic mills to grind barley
the cosmic night. A bud of creation floated on this and wheat into flour. Each of the six main fami-
water. Out of its centre the Tree of the World, or lies of Tagmachig has its own hydraulic grinding
a lotus flower, grew, and out of that the creator mill besides the stream running through the vil-
god came into existence, and then created the lage. When the water flow is too great, the mills
world. The prayer “oh jewel in the lotus flower” may be washed away; when the flow is too small
refers to this creation myth. The jewel is the cre- they may be rendered useless.
ation, the consciousness, coming into being from
the centre of the bud, which floats on the primor-
dial waters.
86
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 the
water of the ocean back, by forming seven coils
around the world with her body. The world floats
like a raft on the primordial water. In the ancient
Indian (Vedic) literature the Naga snake deities Below the spring, a Buddhist prayer mill is powered by the
are the protectors of water, fertility and land. water – © C. Wacker
They can bring wealth as well as hunger, rain or
drought, purification or disease. Kings can only
reign by adhering to their laws. In the Buddhist The main staple crop in these Himalayan oasis vil-
Jataka stories Lord Buddha converted the snake lages is barley. Quickly roasted on the fire, barley
deity and convinced her to use her powers to pro- is ground into flour and then consumed in vari-
tect Buddhism. In Ladakh it is understood that the ous dishes without further cooking or baking.
Tantric yogin, Padmasambhava, subdued many The water mill is therefore the point at which the
local deities, which then became protector deities ‘raw’ is transformed into the ‘cooked’ (in the
of Buddhism. sense of Lévi-Strauss). In Ladakh, the water mill is
rich in marriage symbolism and is a technology of
This background is visualized in Tagmachig with central importance to the subsistence agriculture
the hydraulic prayer mill. The water, or symboli- of the village. By passing first into a Buddhist
cally, the water deity Lhu-mo, ‘powers’ the prayer mill, the initially chaotic, wild power of
the water deity lhu is symbolically disciplined and The meaning of water in the
becomes a force allowing human civilization and
life in the Himalayan oasis. village rituals
Myths are narrated at special occasions. When
Water rights: equity and purity is myths of creation are recited, both the narrator
controlled by all and the listener fall into a particular state of con-
A side canal brings water to the fields belonging sciousness. Through story-telling the narrators
to the Mon families of the village before it re-establish the fantastic time of creation, and lis-
reaches the main irrigation pond(10). Reinforced teners become witnesses of these events. They thus
by stone walls and consolidated by the red roots transcend linear, chronological time and enter into
of willow trees planted along its banks, the mythical time. Lévi-Strauss compares the structures
stream flows into an oval reservoir, which collects of myths to a musical composition, which follows
the water over night and makes it available to another logic to that of modern sciences.
the villagers, who then distribute it to their
respective fields. The irrigation system is the com- In Tagmachig, the holy lakes with the swastika
mon property of the villagers. It has been built, is and the Buddhist prayer mill powered by the
maintained and owned by them and the water is river both depict the creation of the world out
divided equally between them. Below the villagers’ of primordial water. At the bottom end of the
common reservoir, a vertical stone divides the village, the wild Indus water symbolizes death,
water into the two main irrigation channels of suicide, miscarriages, and the end of creation. In
Tagmachig. The villagers control the water distri- the New Year myth, the linear causality of the
bution system below the reservoir by putting a flow of water from the spring to the bottom end
small heap of stones on the dividing stone, which of the village is transformed into a cyclical con-
nobody is allowed to move, except the two users cept of time, through creation, destruction and
entitled to water for that day. One of the two recreation of the world. Losar (New Year) is cele-
main canals flows as an open and perfectly clean brated according to the Mongol (Tibetan) calen- 87
water-course through the village, and is used as dar in January or February and includes the ritual
drinking water. Below the village, another stone circumambulation of the mani walls and chörten
marks the place where washing is permitted. The (stupa) along the Indus. For every ten rounds of
other channel leads directly to the farming ter- prostrations from the village to the last chörten,
races. Within the fields, flat stones and small some two kilometres below, the Buddhist devo-
elevations direct the water to each plant. tees deposit a white stone on an altar pointing
towards the Indus River. The villagers explain that
Flood protection, cyclic time and these piles of white prayer stones protect the vil-
the renewal of the world lage from infertility, child miscarriages and sui-
At the edge of the irrigated area, a cliff separates cides. These have happened frequently in previous
the cultivated land from the wild Indus River. The centuries, they say, and are believed to be caused
cliff is bordered with Buddhist stupas and mani by the furious sound of the Indus(11).
walls, with small heaps of white stones piled on
them, which the villagers deposit at New Year New Year is the time for multiple village festivals,
when circumambulating the village. The place weddings, beer-drinking visits and pilgrimages.
marks a boundary between the civilized village One such pilgrimage is to the head monastery of
(culture) and the untamed Indus (nature), and Tagmachig, in Lamayuru, where the monks per-
the end of the water-course landscape of form mask dances, explaining the coming into
Tagmachig. This place is related to the cos- existence of the world from the primordial
mogony, which is the subject of the mask dances, waters; the cohabitation of the gods, humans
songs and hymns of the New Year celebration. and ghosts; their separation into the upper,
medium and lower worlds; and how
Padmasambhava, the Buddhist Tantric yogin,
conquered the demons and gods and trans-
formed them into protecting deities of the
Wheel of Law.
The year is structured along the solar and lunar With the arrival of Spring and abundant water
calendars, with festivities and ceremonies from snow melting in the mountains, the deities
throughout the year. They ritually display the of the water and of the earth are worshipped in
symbolic meaning of water and, at the same time, ceremonies which relate fertility to ritual pollu-
also structure the agricultural work and water tion(16). Other ceremonies are held to keep dis-
management tasks. Referring to the solar calen- eases away from the crops(17). In these ceremonies,
dar, the ceremonies for the first two months after the villagers recall the rules for maintaining the
the New Year highlight the ordering of the life- purity of the water: the spring, the water-course,
giving quality of water for agriculture. At first, the land around the spring and the land as terri-
the water is channelled and distributed fairly and tory. After this, the lustor or sarak dondol cere-
equally among the villagers. Water is then cele- mony takes place for the deities of the water, the
brated as the main provider of fertility, with a cer- Lhu and Lhu-mo and the lord of the land Bonu
emony requesting forgiveness for interfering Pati or Sa-bdag. At this season, the deities can be
with the forces of nature and accompanied by the perceived by humans in the form of lizards, as
symbolic gift of a child to the spirits of the water they wake up from their winter sleep. A powerful
and the earth(12). These ceremonies are related his- monk or yogin is called to perform this major
torically to the first inhabitants of Ladakh, the water ritual for the village. A ceremonial pot, a
Mon, the Dravidians and Indo-Iranians and to bum-pa, filled with prayer rolls, sweets, milk,
their pre-Buddhist folklore from Eastern Iran and incense and barley is offered to the Lhu. It is
India before their migration. With twelve days of either deposited in a lhu-bang near the spring, or
prayers, the whole village of Tagmachig cele- the offering, brought ceremonially by monks, is
brates the maney ceremony for enough water dispersed into the water at the spring. While
and a good agricultural season. At the zochul cer- some family members spend the month of June at
emony, the astrologer defines the auspicious day the high altitude pastures, others stay in the main
for the start of the agricultural season. Then there village to water the plants and to weed the crops.
88 is a merry beer-drinking village festival, when two This work is carried by pairs of women – often
families, designated on a rotational basis, offer neighbours – who do farming work together
yur chang(13) barley beer. throughout the year. The monks hold another
ceremony, storlok(18), to keep diseases away from
All the villagers are then called to participate in the the crops, while the families celebrate neigh-
repair work on the irrigation system. At this event, bourliness with a specific prayer, chosil(19).
the older people play a major role, narrating the
history of the village and transmitting knowledge When the barley is ripe, the goddess of abun-
and skills related to the construction and mainte- dance is worshipped at the shrubla ceremony.
nance of the water system(14). On saka day, the vil- The whole village joins together to offer grains
lagers gather at the common irrigation tank, which to the goddess and ties straw stalks to the central
is freshly repaired and filled with its first water. A pillar of the kitchen of each house. People sing,
ballot is held, in which pairs of families are identi- dance and drink beer. Monks recite holy texts
fied, to share the water from the village tank about the origin of the world, according to which
according to a twelve-day rotating system. The first a pigeon, symbolizing a fairy, brought the origi-
water is then brought to a designated family(15), nal grain to the human beings from heaven.
which has the traditional role of opening the After this important ceremony, harvest starts. All
watering period. After the saka celebration all vil- families join in the work, moving together from
lagers manure and plough their fields, start water- the fields of one family to the next. Nobody uses
ing the land and sowing barley, then wheat and any iron tools to harvest the crop, to ensure that
later also vegetables. The first three rounds of no harm is caused to those dwelling in the earth
water distribution during the twelve-day rota- and the water, the Sa-bdag and the Lhu-mo. The
tional pattern each have a name: dolchu, rakchu spirits of the earth and water are also celebrated
and nonchu. After these rounds, the system has at harvest time with rituals at family level(20). In
become established and some family members pre- October, the night temperatures are already
pare to move to the dok, the land at higher alti- below freezing point and the last month with
tudes, where the ground is beginning to thaw. water is used intensely to grind the barley and
wheat in the water mills before winter. By had been living in Tagmachig for more than ten
December, the winter season has come. It is a years, and, laughing with joy, showed us a small
period of festivities, merry-making, visits, and spring behind his hermitage. After ten years of
weddings, until Losar marks the beginning of the meditation, he said, he had managed to draw
New Year once again. water out of the desert and to create first a
spring and then the apricot orchard around the
hermitage. Water, he explained, is a result of the
attitude of the people; they can call the water
out of the desert through their work and rituals.
When water is scarce, some powerful head lamas
or yogins make a bum-pa ceremony at the spring
to 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 us
to go back to the main oasis and to walk once
again by the ripe wheat fields and under the apri-
cot and walnut trees full of fruit. As we
approached a group of villagers harvesting
wheat, we noticed some children picking fruit. A
young girl ran towards us to offer us apricots and
apples, nicely presented on a plate. As we
thanked her, we noticed the gracefulness of the
other children as they picked fruit, and the beauty
in the smile of one of the young girls playing with 89
other children. In good English, this girl told us
that she went to secondary school in the capital
and was spending her holidays at home to help
with the fruit picking. She then explained that she
is the oracle of the village and is in training under
The protecting village deity at the hermitage of Tagmachig a senior oracle in the capital, besides going to
© C. Wacker school. At times, she told us, she is possessed by
the protecting village goddess of Tagmachig,
Urbis-Chomo, and has the power to communicate
with the water spirits. These spirits speak through
her in a Tibetan dialect and can cure diseases. In
The relationship between case of water scarcity or health problems, like skin
diseases, the villagers call on her to intervene.
water and agriculture
When asked about the meaning of water, she
In Tagmachig village, every morning before the laughed and – with a similar gesture to the
day starts, the monks and families offer seven hermit’s – pointed to the trees, the ripe fields
cups of water to the protecting deities. When we and the people harvesting the crop, singing tra-
visited the monastery to document this daily ditional harvest songs together. It is their work,
water ritual, the young monk asked us whether she explained, that brings forth the water in the
we ‘really’ wanted to know the meaning of spring. When water is scarce, some villagers go
water in Tagmachig. When we said that we did, on pilgrimage to the sacred lakes in the high
he advised us to consult the hermit, and showed mountains, where the water comes from. There
us the way to his retreat(21), about an hour’s walk they might see the holy swastika sign in the per-
from the main village. A large stone with an old fectly clear water. And, during a serious
inscription guides the way. The hermit told us he drought, they call a high lama or a yogin to per-
form a bum-pa ceremony at the spring, first Indeed, four different systems are used to struc-
investigating in the village to see if human- ture time in Tagmachig: the solar calendar, the
caused pollution might have disturbed the Lhu, lunar calendar, the astrologer’s definition of aus-
and then offering gifts to the water deity to picious days for ceremonies and observations of
bring forth water. the sun. By defining which calendar is used for a
given water-related ritual or ceremony, it is pos-
sible to identify the cultural context to which the
symbolic meaning displayed in the ritual refers.
For example, the New Year festivities as well as
ceremonies related to purity and pollution refer
to the lunar calendar. Ceremonies to do with
farming, fertility and thanksgiving to a goddess
of plenty are related to the solar calendar (e.g.
saka, the beginning of the growing season and
shrubla, the harvest ceremony). According to
Khoo (1997) the solar calendar might have been
brought to Ladakh by the original Indo-Iranian
(or Aryan) settlers. The lunar calendar(22) origi-
nated in Mongolia and was introduced into Tibet
in the 13th century, and later into Ladakh.
Wheat is harvested by hand, without any use of iron to pre-
vent harming the soil and water spirits – © C. Wacker Over the centuries, Tagmachig village has been
settled by Mon, Dards and Tibetans. They
brought with them ideas about the symbolic
meaning of water, which have amalgamated
90 through time into locally-shared knowledge
Cultural pluralism and the about water that is related to the immediate
oasis environment. Originally of Indian and
local uniqueness in the Iranian origin, the Mon, (‘dwellers of the water’)
are related to the early Bronze Age and to the
symbolic meaning of water urban centre of the early Indus civilization,
Harappa, in the lower Indus valley(23). These early
The regional history of Central Asia has been civilizations in Eastern Iran venerated fertility
formed by the interaction of nomadic steppe deities and the four agricultural seasons. They
peoples, who domesticated the horse, and by also had irrigation skills(24) and used a solar calen-
farming peoples with irrigation skills, who lived dar. On their southward migration, they might
along the water-courses and in desert oases. have settled in the upper Indus, near or in
There is evidence of trade and cultural exchange Tagmachig, along the Silk Road through the
along river courses and over mountain passes Himalayas. According to Man (1986) and Ribbach
between Eastern Iran, Afghanistan and Northern (1940) they may have settled in the first centuries
India since the Neolithic, some four thousand A.D. or even earlier. They also might have con-
years ago. Through conquest and amalgamation, verted to Buddhism during the first wave of
new civilizations arose with a mixed agriculture, Buddhist expansion along the Silk Route, after
providing a surplus for the development of the reign of King Ashoka in Kashmir during the
towns and long-distance trade. Kushan empire (Francke 1907).
The cultural exchange, which has taken place The largest population group is of Dard origin.
over the centuries, can be seen in the ceremonial They later adopted the Ladakhi language, a
calendar of Tagmachig. The calendar structures Tibetan dialect, but maintained many of their
the main tasks in water management and agri- beliefs and rituals from the Dard tradition, such
culture and relates water, agriculture and the as the village goddess of Tagmachig, Urbis-
symbolic meaning of water to each other. Chomo(25). Originally from Central Asia, the Dards
were hunters and pastoralists, and knew how to The type of irrigation practiced in our example,
manufacture iron. The Dards maintained an elab- in the upper part of the Indus river, in Ladakh,
orate complex of rituals around pollution that has existed since the Neolithic in various places all
was related to their ancestor belief and to over Central Asia – in Eastern Iran, Uzbekistan
shamanism. After their conquest of the Graeco- and Afghanistan, in the Tarim basin along the
Bactrian Empire in the lower Indus valley, they southern Silk Route, and in Tibet. And some of
are said to have adopted Buddhism and both an the symbolic meanings of water in Tagmachig
urban and an agrarian mode of living. They then today can also be traced to the ancient civiliza-
moved to today’s Kashmir and along the main tions it came into contact with. For example,
Silk Road routes across the Himalaya to the water is related to the creation and destruction
Taklamakan desert and up to China (UNESCO of the world, which is understood as a cyclical
1992, vol. I and II). Rock inscriptions and drawings process of regeneration. And zoomorphic deities
on the banks of the Indus River near Tagmachig relate people to nature, as well as being associ-
refer to this early medieval period of settlement ated with fertility. The contrast between the
and long-distance trade along the Indus (Puri complex, closed oasis system and the vast
1987, Dollfuss 1989). steppe or mountain pasture is a central theme
in water imagery of this region. Additionally,
Buddhist symbolism associates water with the
rise of consciousness, including awareness of
the impermanence of existence.
Water symbolism in 91
Tagmachig: an interpretation
Tagmachig is a small oasis, where the water man-
agement system is built and maintained tradi-
Tagmachig is situated on the delta of a small side river of tionally, with stones, mud and local vegetation.
the Indus in lower Ladakh, Indian Himalaya – © C. Wacker Its remoteness, subsistence economy, cold win-
ters with temperatures far below freezing – and
therefore unsuitable for the iron pipes of mod-
The area was invaded by the Tibetans in the 7th ern water management systems – are all reasons
century, and the Tibetan inhabitants of Tagmachig why the traditional system has not been modern-
settled there in the 17th century(26) or earlier. A ized. The ceremonial calendar of Tagmachig dis-
powerful kingdom is reported to have existed in plays the symbolic meaning of water and relates
western Tibet, which expanded to the Kashmir the ‘little tradition’ of the local culture to the
lowlands. Known as Shang-shung, it was the cen- ‘great traditions’ of distant cultural centres, like
tre of Bon Shamanism in western Tibet, a one- Iran, India, Tibet and Mongolia. The rich symbol-
week caravan route from Tagmachig (Snellgrove ism of water in Tagmachig has borrowed con-
and Richardson 1968, Baumer 1999). The village cepts from various cultures and periods of history
monastery of Tagmachig is related to Lamayuru, and blended them into a locally unique ritual sys-
to the Drepung Red Hat sect, one of the ‘old tem, adapted to the local ecosystem of the oasis.
schools’ of Tantric Buddhism, which maintains This ritual system highlights three main symbolic
many of the shamanistic beliefs and practices meanings of water: vulnerability, interdepend-
today(27). Examples include the conception of the ence and continuity. We looked at the rituals and
world as having three layers, represented symbol- analysed the qualities attributed to the water
ically by the mythical tree at the spring of deity in the community. The water deity is
Tagmachig and the tradition of yogin hermits. described as unreliable and short-tempered; it
can be furious and destructive, or generous and
fertile; it can be intolerant against real or ritual

pollution as well as easily seduced when
approached with purity, sweet food, jewels and
fragrant incenses.
The vulnerability of people in the desert oasis is

thus symbolically transferred to a water deity, the
Lhu-mo. It makes it possible for the people to
achieve a shift from effective dependency on
water to a relationship of reciprocity and mutual
interdependence with water. This widens the
scope for the people to play a part in determining
their own livelihood. The rituals and different
forms of co-operation result in fostering a com- White stones are ceremonially deposited at New Year at the
munity that shares its risks and increases its edge of the irrigated land towards the Indus – © C. Wacker
chances of survival.
The ritual calendar structures agricultural work,

and, as most tasks such as defining the day when
watering should start, are collective, the risks and
responsibilities are also collective. This symbolically
introduces an element of predictability and
controllability to counterbalance the inherent
unpredictability of Nature here. At the New
Year ceremony, the fundamental theme is the
92 continuity of cosmic existence. And it is from this
basis that predictability and perpetuity are sym-
bolically constructed. While a new year and new
agricultural season are anticipated according
to the calendar and the sun (i.e. the shortest day
of the year), the cosmogony performed at the
Fresh water is the most precious of the offerings in the daily New Year’s ceremony explains how the world
ritual performed at the monastery of Tagmachig appeared, how it will also one day disappear, and
© C. Wacker how a new creation will arise once again. By asso-
ciating the symbolic continuity created through
rituals with water, and water with fertility and
Nature is unpredictable in the place where this thus with procreation, water in itself represents
case study was done. Below the village, the Indus the continuity of culture, and the continuity of
carries rocks, silt and ice, which sometimes block the individual and collective identity of a village
its passage and create floods. Heavy weather in or a community.
the mountains, or a cracked glacier, can bring
catastrophes. Sharp temperature changes can
create earthquakes and stone hails which, in
turn, can bury the springs upon which life in the
oasis depends. The altitude, temperature and
availability of water set narrow limits upon agri-
culture. For example if the crops are sown too
late, the snow-melt might not last long enough
for two crops a year. If sown too early, frost might
destroy the crop, etc.
(7) A lhu-bang is a small, cubic construction of about one

meter per side, decorated with juniper twigs and small
white stones in the shape of a stupa. The building
symbolically represents the cosmos. The juniper twigs
at the centre of the roof symbolise the cosmic tree of the
world. The lhu-bang is a ceremonial place for offerings to
the water deity and contains a bum-pa, a ceremonial pot
with 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 neighbouring
Tagmachig, the King Willow is the Tree of the World, from
which the bird brought the initial seeds (Vohra 1989).
(10) The fields of the Mon families are watered upstream
before the water is collected in the reservoir, probably
because 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 Tagmachig
was once a lake, which gradually drained and made more
land available for cultivation.
(11) The symbolic relationship between the sound of the river
and human life refers to the myth of creation of the world in
the Bon cosmogony which explains the coming into existence
of the world from a primordial ocean, out of which a furious
ENDNOTES dragon arises and then, eventually, releases some of the
(1) Sanskrit spelling of yogi
water to allow the formation of land and then the world.
(2) The Tagmachig people were bartering salt and fine
wool from the nomads in Rupshu (Chang Tang) at the Sakti
(12) The beginning of the agricultural year is celebrated 93
with the Saka ceremony in March. Bulls with decorated
autumn fair in upper Ladakh for dried apricots from
(anointed) horns are allowed to run in the fields as they
Baltistan, and home grown barley and walnuts, before the
start to turn green; then a child masked with white flour
ice cover of the Indus river melted again in spring and the
opens the land for the initial ploughing and the village
village was cut off from the international trade route during
goddess is worshipped.
the agricultural months. Some villagers even went on
six-month caravans up to Gerge in Tibet and also sent (13) Yur means “water canal”, Chang means “beer”.
relatives to study in Tibetan monasteries.
(14) In Tagmachig the irrigation canals are built only with
(3) sTag means tiger in the Tibetan language. The village natural materials found nearby: stones and shrubs, which
name is also written Tag-ma-gic or sTagmachig. are held together with sand and silt, by the fine roots of a
form of millet grass planted in the silt, and by the roots of
(4) Bon in Tibetan means “to invoke”. In Bon Shamanism,
the willow trees planted along the irrigation canals.
religion was transmitted mainly in the form of myths,
recited by invoking priests, recounting the origin of (15) The family has no special privileges and has this role
existence of all beings including gods, spirits, humans designated by tradition. It is probable that in the time
and others. before the village belonged to the Ladakhi kingdom,
with its land and water rights registration system for
(5) The folksong is sung by the men of Tagmachig. It has
taxation, the land was also a common property of the
been recorded and translated by Tashi Rabgyas, 1997.
village and was also allocated at the Saka ceremony each
(6) Before the advent of Buddhism in Central Asia and year to the families, as described by Vohra (1989b) for a
Ladakh, knowledge about water was transmitted orally. No neighbouring Dard village.
religious buildings were constructed. The main means of
(16) Rites of passage in human life such as birth and death
transmitting symbolic knowledge are religious rituals and
and the uncontrolled presence of foreigners ignoring the
village ceremonies, as well as the rituals performed by
rules for maintaining the purity of the water and the
religious specialists, such as oracles and shamans. In
marriage rules of the village, can pollute the water and
Mahayana Buddhism, the cult of local gods and the
cause skin diseases. Pollution, it is believed, leads to a
tradition of oracles and divination techniques were
reduction of the water volume, to infertility of the land and
maintained. Villages such as Tagmachig, related to the ‘old
to diseases.
school’ of the Red Hat sects of Mahayana Buddhism, have
also maintained the tradition of the yogin way to (17) At the Jing-tsrak ceremony, the monks throw rice and
enlightenment. In Tagmachig, a yogin and a village oracle mustard seeds into an open fire, where they are
are today relevant specialists in water management. ceremonially destroyed.
(18) Storlok is a ceremony performed in the monastery by REFERENCE LIST

the monks. They make figures out of barley representing Baumer Christoph, 1999, Die lebendige Ur-Religion Tibets.
evil spirits and burn them, thus removing them from Graz: Akademische Druck- und Verlagsanstalt, Bön.
agriculture.
Bechert Heinz, Richard Gombrich, 1984, The World of
(19) Chosil prayers are performed at family level in summer, Buddhism. Thames and Hudson, London.
connecting households to each other. Three monks read Bellezza John Vincent, 2002, Antiquities of upper Tibet. An
holy texts in one family at a time for two to three days and inventory of pre-Buddhist archeological sites on the high
continue the reading in the next family, and so on. plateau. Findings of the upper Tibet circumnavigation
(20) To keep the wealth in the homes until the next harvest expedition, 2000, Adroit Publishers, Delhi.
comes, another ceremony takes place at family level in Bloss Lowell W, 1973, The Buddha and the Naga: A Study in
September, in honour of the spirits of wealth, called Buddhist Folk Religiosity. History of Religions 13, no 1, The
Skansol. A handful of barley, wheat, corals, some money, University of Chicago, USA.
copper and silver are tied together in a sack to attract the
spirits of wealth and to pray for enough water. The sack is Carrasco Pedro, 1974, Land and polity in Tibet.
stored in the house for the next year in the presence of Monograph 32, the American Ethnologial Society, University
monks reciting prayers for the family. of Washington Press, Seattle and London.
Cohen Alvin P, 1978, Coercing the Rain Deities in Ancient
(21) The hermitage of Tagmachig village, the Tseamskang
China. History of Religions 17, 1977/78, The University of
(isolated place) was the meditation site of a famous Tibetan
Chicago, USA.
Khanpo (Buddhist title). It is inhabited today by a hermit
monk from Bodhgaya (near Benares). Conze Edward ed., 1954 (1995), Buddhist Texts Through the
Ages. Munishiram Manoharlal Publishers Pvt Ltd, Delhi.
(22) In the lunar cycle, the months follow the phases
of the moon and the weeks are reckoned on a seven-day Crook John, Osmaston Henry, 1994, Himalayan Buddhist
cycle related to the planets. According to this calendar Villages. Environment, resources, society and religious life in
the first month corresponds approximately to the month Zangskar, Ladakh. University of Bristol, Bristol.
of February or March.
Dargyay Eva K, 1988, Buddhism in adaptation: ancestor gods
(23) Having a written script, this urban culture was also and their tantric counterparts in the religious life in Zanskar.
involved in sea trade and had some cultural exchange with History of Religions 28 (1988), pp 123-134. University of
94 Mesopotamia and ancient Egypt. Chicago.
(24) The irrigation technique was introduced into Tibet by Dollfus Pascale, 1989, Lieu de neige et de genévriers.
the Pontian migration from the Black Sea through central Organization sociale et religieuse des communautés
Asia in the 9th and 8th century BC. bouddhistes du ladakh. CNRS, Paris.
(25) At the highest place of the village there is a major Drew F, 1875 (1976), The Jummo and Kashmir Territories.
Lhato shrine for the village goddess Urbis-Chomo and five Delhi.
smaller ones with bum-pa’s (ceremonial vessels) for water
Eliade Mircea, 1949, Traité d’histoire des religions.
and wealth. The village goddess of Tagmachig is the chief of
Bibliothèque historique Payot, Editions Payot, Paris.
’the Seven Sisters‘, the protection deities of the
neighbouring villages of Domkhar, Skurbuchan, Ledo and Eliot A ed.,1976, Mythen der Welt. Bucher Verlag, Luzern
others: Hagnis-Chomo, Foka-Chomo, Dagmar-Chomo, Dag- und Frankfurt/M.
nag Chomo, Yakra-Chomo, Shukpa-Chomo.
Engler Ivan, 1989, Entstehung des Wassers. In Ders. ed.
(26) The settlement of the two Tibetan families in Wasser, Polaritätsphänomen, Informationsträger, Lebens-
Tagmachig might date back to the invasion of this Silk Route und Heilmittel, Sommer Verlag Gmbh, Teningen.
passage by the Ladhaki king, Seng-ge rNam-rgyal, who also
Francke AH, 1907 (1978), Ladakh, the Mysterious Land.
brought Tantric Buddhism and established or rebuilt major
Cosmo Publications, New Delhi.
monasteries, e.g. Lamayuru, the head monastery of
Tagmachig and also built the long row of chörten and mani Francke AH, 1923, Tibetische Hochzeitslieder, übersetzt nach
walls bordering the trade route at Tagmachig village. Handschriften von Tag-ma-cig. Hagen/Darmstadt.
Lamayuru is the most ancient religious building in Ladakh, a
Grist Nicky, 1985, Ladakh, a trading state. Acta biological
place having many names (e.g. also known as Gyu-ru or
montagna 5, pp 91-102.
Yuru Sen-ge-sgan) and many monasteries. It existed before
the advent of Buddhism in Ladakh and was turned into a Gyaltsen Jamyang, 1997, The introduction of Buddhism into
Buddhist monastery in about 1050 A.D. (Hassiani 1973). Ladakh. Osmaston Henry and Nawang Tsering eds., Recent
Research on Ladakh 6, University of Bristol, Bristol.
(27) Many of the early head monks of the Drepung sect
in the 13th and 14th century were from Mongolia. Hassnani FM, 1973, Buddhist Kashmir. Light and Life
Altaic beliefs and shamanistic practices from this context Publishers, Delhi.
have an important place in this Buddhist sect
Kaltenmark Max, 1970, Religion de la Chine Antique.
(Snellgrove and Richardson 1968).
Encyclopédie de la pléiade, histoire des religions 1, Éditions
Gallimard, Paris.
Kaplanian P, 1983, Quelques aspects du mythe et des Turner Victor, 1969, The Ritual process: Structure and Anti-
structures mentales du Ladakh. Kantowsky D and Sander R, Structure. Cornell University Press, New York.
Recent Research on Ladakh.
Turner Victor, 1982, From Ritual to Theatre: The Human
Kaplanian P, 1995, L’homme dans le monde surnaturel Seriousness of Play. Performing Arts Journal Publications,
Ladakhi. Osmaston Henry and Philip Denwood eds., Recent New York.
Research on Ladakh 4 and 5, School of Oriental and African
UNESCO, 1992-2003. History of Civilizations of Central Asia.
Studies, University of London.
Volumes 1-5, Paris.
Khoo Michael, 1997, Preliminary remarks concerning solar
Vohra Rohit, 1989, The Religion of the Dards in Ladakh.
observation, solar calendars, and festivals in Ladakh and the
Investigation into their pre-Budhist ‘Brog-pa Traditions.
western himalaya. Dodin Thierry and Heinz Räther eds.,
Himalayan studies, Ladakh series, Ettelbruck, Luxemburg,
Recent Research on Ladakh 7, Ulmer Kulturanthroplogische
Skydie Brown International SA, Grand Duchy of Luxemburg.
Schriften, Band 9.
Vohra Rohit, 1989b, An ethnography. The Buddhist Dards of
Lévi-Strauss Claude, 1958, Anthropologie structurale.
Ladakh. “Mythic lore – Household – Alliance System –
Librairie Plon, Paris.
Kinship”. Himalayan studies, Ladakh series, Ettelbruck,
Lévi-Strauss Claude, 1971, Mythologiques IV. L’Homme nu. Luxemburg, Skydie Brown International SA, Grand Duchy of
Librairie Plon, Paris. Luxemburg.
Lévi-Strauss Claude, 1983, Le regard éloigné. Librairie Plon, Paris. Wacker Corinne, Fröhlich Urs, 1997, Traditional Water
Management System in Ladakh, India. University of Zurich:
Malla BL, 1998, Water Resources and their Management in
Institute of Ethnology, Switzerland.
Kashmir. Baidyanath Saraswati ed., The Cultural Dimension
of Ecology, Indira Ghandi National Centre for the Arts and Williams Paul, 1989, Mahayana Buddhism. The Doctrinal
DK Print World (P) Ltd, New Delhi. Foundations. Routledge, London and New York.
Man RS, 1986, The Ladakhi. A study in Ethnography and
change. Anthropological survey of India, Ministry of human
resource development, Calcutta.
Petech L, 1939, A study of the Chronicles of Ladakh, the
“rGyal rabs”, (Indian Tibet). Oriental Press, Calcutta.
95
Puri BN, 1987 (2000), Buddhism in Central Asia. Motilal
Banarsidass publishers private Limited, Delhi.
Phuntsog Sonam, 1997, Sacrifical Offerings to Local Deities
in Ladakh. Osmaston Henry and Nawang Tsering eds.,
Recent Research on Ladakh 6, University of Bristol, Bristol.
Rather Ali Mohmad, 1997, Discrimination in Ladakh Society.
A Study of Mons and Bedas of Ladakh. Osmaston Henry and
Nawang Tsering eds., Recent Research on Ladakh 6,
University of Bristol, Bristol.
Riaboff Isabelle, 1991, Les Lha, une catégorie Zanskari à
géometrie variable. Ou, que sont les dieux devenus? In:
Dodin Thierry and Heinz Räther eds., Recent Research on
Ladakh 7, Ulmer Kulturanthroplogische Schriften, Band 9.
Ribbach SH, 1940, Drogpa Namgyal: ein Tibeter Leben. Otto
Willhelm Barth Verlag, München.
Rizvi Janet, 1999, Trans-Himalayan Caravans. Oxford
University Press, Oxford India Paperbacks, Oxford.
Shakspo Nawang Tsering, 1985, Songs of the Himalaya, Ladakhi
Folk Songs. Ladakh Ecological Development group, Leh.
Snellgrove David, Richardson Hugh, 1968 (1980, 1995),
A Cultural History of Tibet. Shambhala, Boston and London.
Stolz Fritz, 2001, Weltbilder der Religionen. Pano Verlag, Zürich.
Turner VW, 1964, Symbols in Ndembu Rutial. Closed Systems
and Open Minds: the Limits of Naivety in Social Anthropology,
Gluckmann Max ed., Alchum Publication Company, Chicago.
96
Many citizens in our rural areas still remember the indigenous

Communal Food Security program, but the generation gap is huge. Our
elders can remember, but our youth have no idea. This traditional history
of food security practices cannot be a blueprint for these modern times.
But for change to happen, both the local government and the house of
chiefs should be mobilized to take up this challenge seriously. This is
why we created the Water for Food Movement.
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 a
smallholding 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 from
despondency. In 2002 she initiated the Water for Food Movement, which is also supported by
the International Water Management Institute.
Introduction munity dug protected wells next to the river-

banks so there was plenty of water for all.
This presentation aims to raise concerns around
the problem of food insecurity for many people To ensure proper sanitation, the elders told a
living in arid, rural, communal areas. Although story about a man who broke the community
South Africa has a large sector of commercial rule about squatting next to the drinking well.
farmers and food processors producing an abun- He developed a tail that grew so long he could
dance of food, many marginalized rural commu- no longer wear trousers. He became a joke in the
nities live in poverty with very little money. Food village because he could only wear silk aprons.
is therefore inaccessible because of the cost. Through the teachings of our elders we learn
how to respect water.
It is a great pity that we have lost the history of
food security that previously existed at the Every year, before the rains would start and mark
household level in all rural communities, carried the beginning of the New Year farming calendar,
within the basket of social systems that mobilized an environmental cleansing ritual was performed.
individuals and families to take responsibility for The chief, counsellors and traditional doctors were
their own survival. I grew up during times when responsible for ensuring that the environment was
those systems still existed. I remember well how purified, so that when the rains started, the dirt
we produced food. Currently, I have seen women was removed from the forest and veld, and the
and men losing hope and retreating into a deep water did not carry carcasses into wells and rivers.
pit of apathy. In order to overcome these prob- It was also a ritual for rain and to divert insects.
lems I believe the Water for Food Movement pro-
vides a vision to change the individual mindset
and stand up to fight hunger and malnutrition.
The current situation 97
Things have changed so much, that it is hard to
Indigenous traditions and know where to start looking at issues of food
security. South Africa’s poor majority nowadays
rituals for food security depends on social grants for survival, creating a
syndrome of apathy and helplessness. Our pres-
South Africa used to have many rural communi- ent youth have no idea how to produce food at
ties that survived on the land through farming. the household level. They only know about buy-
They had developed social systems and rituals in ing it daily from markets.
support of food production and food security for
all. These systems acted as the guardians of land I will not go into detail about the apartheid gov-
use management systems and ensured commit- ernment’s legislative apathy. There are piles of
ment to communal farming activities to keep documentation throughout the country, but
food production a first priority. much more has not been documented: how
removals from their original settlements not only
The system of land cultivation was simple and displaced people, but psychologically changed
caused very limited soil erosion. Rivers still had their attitudes; how removals dispossessed them
banks and there was no silting to the level we see of their livelihoods – the loss of their land and
today. The rivers provided numerous sources of accessible water resources, grazing land, their
food. On the riverbanks there were reeds, grass, woodlots, the wildlife that they so dearly
and water vegetables (morogo) and we also had depended on. Our little village at Tshukudung
fish from the river. Sand in the river filtered the was dismantled in 1957, when all satellite villages
minimal pollution, providing us with drinking were destroyed and people moved to the big set-
water directly from the river. The river flowed tlement next to the chiefs’ kraal. This scheme was
throughout the year and we dug wells at house- packaged as part of the government’s so-called
hold plots so everyone had their own access to ‘Betterment Scheme’. ‘Betterment’ meant chang-
water. When the water table dropped, the coming land allocation and losing housing. It also
meant that river water and wells were now far ize that this traditional history of food security
away from people’s homes. Inevitably, people’s practices cannot be a blueprint for these modern
lifestyles changed, migratory labour became more times. But for change to happen, both the local
prevalent and social systems collapsed. Crime government and the house of chiefs should be
moved in and households sank into poverty. mobilized to take up this challenge seriously. This
People who used to cooperate became helpless. is why we created the Water for Food Movement.
For present grassroots rural inhabitants, work is The Vision of the Water for Food Movement is:
interpreted as being employed for a salary. This active households in communities taking respon-
mindset is very different from the time when I sibility for their own livelihoods, starting with
grew up. People have lost the power to value food as a priority to liberate the minds and
themselves and value the land and water systems rebuild the family as the primary institution for
around them. Nowadays, not even one of the the re-socialization of youth.
rivers flows throughout the year. The big
Mononong River is dry and silted. Hlaafele River The Water for Food Movement aims to break the
has no water, the riverbanks are untraceable. cycle of apathy so common among insecure fami-
People are buying water from those who have lies, and to lead them from helplessness towards
boreholes in their homesteads; the communal self-confidence and creativity; to enable them to
water supply is inadequate or non-existent in cer- face the challenges of rebuilding their lives
tain sections of the village. It is a nightmare to through their own initiatives. This process enables
live in that area. The silent messages pumped them to see the opportunities that are open to
into our heads by all the devious laws of them to change their situations, and not sit back
apartheid are still a reality today. The country is and wait for someone to do it for them. The
free but the people are not yet free. Water for Food Movement stimulates co-opera-
tion and inter-personal support within communi-
98 South Africa’s new local government has been ties, so that community values and norms can
born into a period of great challenges. To me, the regenerate. The process helps eliminate self-pity,
great challenge we face during this era of new idleness and negative perceptions in the power-
civilization is whether we have suitable strategies less section of communities. There is a packaged
to deliver on the promise of ‘a better life for all’. training program to help make this happen.
Everyone is looking forward to the promised
dream. We should recognize that the strategy of • To ensure food security, the targeted house-
‘self-targeting’ works for those already on their holds become conscious of water – capturing,
feet. But what about the many that are still storage, manual pumping and utilization of
trapped in apathy? While we all recognize the rainfall run-off, roof water and recycled grey
necessity to share the water of rivers and bore- water on homesteads. Conservation of
holes in the country and in the Southern African potable domestic water will become a prior-
region, we have failed to provide the poorer peo- ity through wastewater recycling.
ple of our country with adequate water even for • Through a land- and water-management
household use, let alone for food production. design for the homestead, these families
become conscious of run-off water catch-
ments. This involves creative initiatives within
the homestead, and low-cost methods for
intensive, sustainable, homestead land use
The Water for Food for vegetables, fruit trees, grains, etc.
• Rebuilding arid soils and managing waste
Movement at household level and in surrounding areas
are priorities. Environmental health is not
Many citizens in our rural areas still remember just a matter of legislation and by-laws. It is
the indigenous Communal Food Security pro- a people-driven program that makes local
gram, but the generation gap is huge. Our elders government effective in its approach to
can remember, but our youth have no idea. I real- reconstruction.
• Fruit tree planting at household level is part changing the mindset. At the end of the self-
of social reforestation initiatives – to build reflection workshops, each participant has a
long-term food assets at household level, draft design for land and water management
with an impact on nature conservation. This in his or her homestead.
helps to raise awareness about environmen- • Implementation of the design at home
tal care that is based on social values and Participants are told to start changing and
norms at village level, which local govern- implementing their land and water manage-
ment can support through by-laws, rather ment designs in their homestead. They are
than legislating policy from top-down. told that they need the support of their
• Festivals improve broad-based community neighbourhood for their initiative, and that
awareness and mutual support, sharing of their own effort alone cannot defeat apathy
skills and information. Government represen- in the community. Mobilization helps to cre-
tatives can be invited to share information and ate an enabling environment for each person
also become exposed to the people’s power, to to achieve his or her vision.
create a positive working partnership. • Community mobilization
• Youth are not passive participants at these Through informal groups each person shares
festivals but instead re-socialized. And there is his or her hopes with their neighbours and
a Youth Day celebration, where they can test others in similar circumstances. The Water for
the skills they have gained at home. They can Food Movement is there to help influence
also see a range of skills during the fun-filled and change the mindset of the rest of the
festival, which will help them to think posi- community, to shape new values for coopera-
tively about their lives. Children from disad- tion and caring. Festivals boost hopes of suc-
vantaged homes, where apathy still domi- cess, promote skill-sharing and demonstrate
nates, will be motivated to help their parents what has been achieved.
change the situation. Creative and fun activi- • Follow-up training and
ties, like recycling waste material to produce input by resource persons 99
useful articles, help them combine play with The Water for Food Movement motivates the
work, to build a working nation for the future. initial target families to continue working.
• Time management at household level will Skill-sharing is expanded to improve skills for
stimulate greater awareness of time and how land design, soil preparation, crop planting,
to use it, as an asset to self-empowerment. educat-ion, irrigation, etc. Other stakehold-
Children growing up in disadvantaged homes ers are brought in to share other skills and
with illiterate parents will start helping them techniques.
to learn to write and read. By making adult
basic education and training fun at the house- Once food security has been achieved, the family
hold level, a spirit of cooperation will develop, is ready:
smoothing out tense relationships at home. • Confidence has been rebuilt
• Relationships are harmonized
The training program starts with the partici- • The neighbourhood respects their initia-
pants’ own empowerment within their home- tives and has bought into the strategy
steads. There, they are in control of their lives. • The family works as a unit – and has devel-
From the homestead, the program moves into oped business skills
the village community, with continued support • The family is ready to go forward. They can
of the Water for Food Movement. The sequence start a small business, find jobs and sell their
of the program is as follows. land design skills to the middle class, learn
• Self-reflection, motivation, irrigation and water harvesting technologies.
and design workshops They can do this for others, for modest finan-
An analysis of the present situation helps cial rewards.
individuals to reflect on their situation and
share the pain and frustrations they face. This
sharing helps people realize that there is a
way forward. Apathy is turned into hope –
A history of water resource access in the

southern Kalahari: San perspectives on
the role of modern technology in
dispossession and poverty
Introduction
Centuries ago the San (Bushmen) were the only inhabitants of the semi-arid Kalahari area in
southern Africa. They lived in family groups as hunter-gatherers tied to their territorial area termed
N!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 San
were mostly determined by the seasons.
The various San family groups respected each other’s territorial boundaries. However, they assisted
each other by permitting the visiting San to collect food in their area if it had become scarce in
another N!ore. In accordance with the San’s customary law it was considered a serious crime to
collect 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 the
100 Kalahari, was never refused to anyone. A San settlement within a N!ore was commonly located next
to a reliable water source. San moved only to other places when their water source was drying up.
Traditional water sources

When I interviewed my own people the Hai//om of northern Namibia and elders of other San
groups such as the Ju/’hoansi and Naro, I learned that for centuries the San used various natural
water 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 Kgalagadi
District of Botswana today. Sip-wells were places where San sucked water through the sand using
long or short straws, depending on the water level. These places were often situated north of the
salt pans, which had a sand dune at their southern end. To obtain water the San shovelled the
upper layer of the whitish sand with their hands to the side. They prepared an approximately 60cm
hole with their digging stick, into which they inserted a straw cut from the Kalanchoe plant, with
a grass filter attached to its lower and upper ends. The sand around the straw was compacted and
left 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 and
buried them in the sand for later use.
The San also knew of rare artesian springs which appeared in more rocky areas and provided fresh
water all year round. Rainwater, which collected in depressions of rocky areas, was used by the San
but not appreciated as it was often greenish or had a brackish taste. Other water sources used by
the San were pan-like areas which stored rainwater for 3 to 9 months. The water was commonly
only used during the cooler season of the year, when the mosquitoes were decreasing and the
danger 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
throughout the year. Trees such as Marula and Manketti have holes where rain water and dew
collects easily. The San sucked this water from the holes using straws.
The dispossession process

For centuries the San fed on natural resources such as game, edible plants and water. A drastic
change occurred when Bantu groups and European settlers invaded San territories with their
livestock during the 17th century. It is ironic that the San’s habit of sharing resources, thus
providing assistance to the new settlers in finding good pasture and water for the people and
livestock, was the beginning of the San’s almost entire dispossession of their natural resources. The
melons, the water-bearing tubers, edible berries, fruit and plants from the bush were eaten by the
livestock. Wild game was pushed out of the N!oresi or hunted with firearms. The San realised their
dispossession only after the ever-increasing livestock numbers of the intruders had depleted the
scarce 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 as
drilling and sinking boreholes. They pumped masses of water from deep in the ground and became
the 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 all
their natural resources but lost control over their ancestral land. The new settlers’ concept of
individual land ownership disempowered the San completely. Now they were forced to live on
their 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 San
should not be allocated land or services. Government officials argued that, being ‘nomadic’, the San 101
would 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 are
organized. We also see that governments are noticing that we have a voice. For example, the
government of South Africa has returned a substantial piece of land to the San within their land
restitution 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 government
of Botswana continues to move people out of their N!oresi to make space for the tourism industry
in the Central Kalahari Game Reserve. We will not give up, we will continue to unite and exchange
our experiences with other indigenous people in Africa and from around the world, so that we can
learn from each other.
Joram / Useb is a member of the Hai//om community residing in Outjo, a small town near the Etosha
National Park, once the Hai//om’s ancestral land. Born in 1975, he obtained an International General
Certificate 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 in
Namibia, to resolve problems in a democratic and transparent manner.
wimsareg@iafrica.com.na
* WIMSA (Working Group on Indigenous Minorities of Southern Africa) was established in 1996 at
the 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.
When the political leadership of the ‡Khomani San Association sat with
three of the most fluent speakers of the ancient N/u language and asked
them for guidance on the land claim and restitution process, the elders
102 identified the three most important resources of their aboriginal culture
in the Southern Kalahari: water, land and truth. This short summary
document is based on the work that SASI has been doing with
‡Khomani San elders from the Southern Kalahari in a Cultural Resource
Auditing project. It aims at bringing together dispersed elders thereby
helping the community to transmit valuable traditional knowledge to
the younger generation.
Nigel Crawhall has a MPhil in Linguistics from the University of Zimbabwe and a PhD on socio-linguistic
history of the demise of hunter gatherer !Ui languages in South Africa. From 1996, he worked as a
consultant to the South African San Institute (SASI) and the Working Group on Indigenous Minorities
of Southern Africa (WIMSA). His work concerned cultural resource management support to the
displaced Khomani San People of the Southern Kalahari. He is currently a consultant to the Indigenous
Peoples of Africa Coordinating Committee (IPACC).
crawhall@mweb.co.za
This short summary document is based on the When this region became engulfed in the Nama-
work that SASI has been doing with ‡Khomani German war (1904-1908) that spilled over from
San elders from the Southern Kalahari in a neighbouring Namibia, the humble tsamma melon
Cultural Resource Auditing project. The project became critical to all parties. Simon Koper’s horse-
aims at bringing together dispersed elders to mounted Nama troops swept down to Rietfontein,
help audit their traditional knowledge. This then up through the Auob and N‡osob dry river
auditing has helped the community reintegrate beds, surviving only on the water of the melons.
itself and its sense of identity and history, as well They were soon followed by the German imperial
as transmit valuable traditional knowledge to army that had to water its men, horses and camels
the younger generation. This community is in the entirely on desert food. This all took place in the
difficult situation of having been in diaspora for peak of summer when temperatures soar up to 50
fifty years. Their ancestral languages have almost degrees in the shade – and there is very little shade.
gone extinct. Only about twenty-eight people Both sets of aggressors kidnapped San trackers to
are full or partial speakers of the language(s). help them through the endless sand dunes and
These language varieties are from the !Ui branch find all the crucial plants to feed and water them.
of the Southern San languages, related to |Xam. Elderly San still recall hiding in the dunes for fear of
Today the San generally consider themselves to being shot by German troops. (Source: Keis Brow
be ‡Khomani. However the elders and the ethno- and Elsie Vaalbooi)
graphic research show there were several ethnic
and linguistic groups. The broadest group called The San themselves had a number of techniques
themselves N||ng !e (or Home People), and for capturing and managing water. Ostrich
included the ‡Khomani as a subgroup. There eggshells would be cleaned out and buried deep
were also neighbouring groups speaking related within the red sand dunes during the rainy sea-
languages, the |’Auni and |Haasi speakers. There son. Water would percolate down through the
were also probably some southerly !Kung people sand dunes, weeks after the rains and the surface
in the area, speaking an unrelated language. water were gone. The eggs would be recovered 103
when necessary and plugged with a wax stopper.
When the political leadership of the ‡Khomani To this day the practice continues on some farms,
San Association sat with three of the most fluent though people now use plastic bottles (Source:
speakers of the ancient N/u language, they asked Petrus Vaalbooi).
the elders for guidance on the land claim and
restitution process. The elders identified the The government of Britain and the Union of
three most important resources of their aborigi- South Africa were deeply disturbed by the sover-
nal culture in the Southern Kalahari: !haa, !ão, eignty issues involved in the German invasion of
//kx’am. That is: water, land and truth(1). Water, the Southern Kalahari, and soon Britain was at
and access to water, has been a key variable in war with her previous ally. The South African
the defence, conquest and colonization of the government of the day decided to recruit white
Southern Kalahari. settlers to fill up the frontier and consolidate the
border. Boreholes had to be sunk to achieve this.
The oldest members of the San community remem- During the early 1920s, the government spon-
ber a time when there were no boreholes in the sored white farmers to sink boreholes, particu-
Southern Kalahari. There was no surface water larly along the riverbeds (the Auob, N‡osob,
available except during the rains. The people lived Molopo and Kuruman) where subterranean
off those plants that absorbed water, including the water was easily accessible.
all important tsamma melon (Citrillus lanatus), a
favoured wild food with plenty of liquid. During The sinking of the boreholes had a drastic effect
the 19th century, settlers could not penetrate the on the Southern Kalahari. Firstly, the seasonally
interior of the Southern Kalahari (where the nomadic San people lost all of their territory in a
present borders of South Africa, Namibia and matter of a few years. Fences were put up and
Botswana come together) without using the tra- people were not permitted to move freely.
ditional technology of the San people. Secondly, as elsewhere, the settlers went on killing
sprees, devastating the wild animal population. By
1927 there was a famine throughout the area, as each dune and pan is distinct. Some pans are now
game had become so scarce. This drove the San to mined for salt. The San know which streets pro-
live and work on farms where they would earn a duce the best plants, and which pans have
meagre income to afford to buy food that had potable surface water after rains. The water in
once been theirs for the taking and managing. some pans will cause immediate diarrhoea or can
Farmers banned the San from practicing their tra- even be poisonous to humans. However, there
ditional religion, including the powerful trance are traditional methods for purifying some of the
dance that was used for healing. The San identity water. The San give names to pans to remember
was ruthlessly suppressed. First there were scien- this, such as Large Diarrhoea Pan (Xausndi ‡gas).
tific efforts to determine authenticity, that
involved measuring the heads, noses and genitalia During the process of the land claim against the
of people. Later, all San were forcibly reclassified Kalahari Gemsbok National Park (now Kgalagadi
as being of mixed race. During this time much of Transfrontier Park), the Park officials argued that
the culture, language and traditional knowledge there was no potable water in the park. A map-
was not passed down to the younger generation ping project has demonstrated that not only is
for fear of stigmatising them. All of this because of water available through the plant life, but there
borehole technology. are also a number of sites where water can be
found on the surface or just below the surface.
Some areas of the Southern Kalahari could not be These water sources were already pointed out
accessed in the 1920’s, as the water was too deep seventy years ago to the settlers and the warden,
below the surface for the wells to reach. This area, and are still known to some of the older people.
particularly in what was once designated as the
Old Kalahari Game Reserve, remained an open ter- On 21 March 1999, the South African government
ritory. San families would use this area for emer- awarded the Southern Kalahari San almost
gency food relief, and would traverse it while seek- 40,000 ha. of land outside the national park, and
104 ing new work opportunities and visiting relatives. 25,000 ha. inside the park as restitution and
After the 1950’s, however, new technology led to redress for their losses. On the day that Thabo
the fencing and partition of this last wild area. Mbeki gave the land back, the N/u speaking eld-
ers gathered and prayed to their ancestors to
The area of the Kalahari Gemsbok National Park send rain. As Mr. Mbeki climbed into his limousine
used to be the traditional territory of the to depart, a large rain cloud moved over the land
Southern Kalahari San. Most of the San were settlement site and rained huge drops of rain in
forced to leave the park in 1936. A few families the otherwise hot and dry desert. For many of the
who helped the warden with game management westerners this was a marvellous and inexplicable
were allowed to stay, and even to hunt and phenomenon.
gather, up until the beginning of apartheid in
the late 1940’s. After the transfer of the first farm to the San in
December 1999, a great rainy season began, with
The Southern Kalahari is composed of a number of the highest rainfall since the early 1970’s, when
different soil types, but the predominant type is the last San were expelled from the park. The new
that of red sand dunes, that run for up to several rains have restored all of the wonderful plant life
hundred kilometres. These are permanent, and replenished the animal life. Some of the eld-
unshifting dunes. When it rains, water runs down ers are back on the land and are taking their
between two dunes. This is called a ‘street’. grandchildren out into the dunes to collect tsam-
Where several streets meet and the water cannot mas, gemsbok cucumbers and desert onions. So
run off anywhere a ‘pan’ is formed. A pan is a flat much rain fell that the streets filled like reservoirs
indentation in the earth where water collects and both the N‡osob and Auob began to flow for
and sits until evaporation is complete. A pan can only the third time in a hundred years. Ironically,
be as small as 500m, or wider than 30km. Some of the massively irrigated agriculture along the
these pans may have been in place for up to a Orange River, land that was taken from the
million years. According to the San (and con- indigenous peoples by the settlers, was swamped
firmed by scientists), the chemical composition of with water and the crops started rotting that year.
105
ENDNOTES
(1) Later Ouma /Una added a fourth, ll’ã’a, meaning to love
one another with respect.
The guardians of trees and water

E chajinel rech le che’ ruk le ja’
The fact that the forests of Totonicapán are still in a good natural state is because of the collective
control and resistance that the Maya-Quiché culture has exercised. It is safe to say that it would not
be 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 most
important community political organization.
In addition, the Totonicapán forests are not only natural ecosystems, but also constitute a cultural
benefit, to such a degree that they strengthen the collective identity of the Maya-Quiché
communities. These forests fulfill a transcendental hydrological function for the local and regional
areas 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 so
vital to the survival of their people.
In each of the communities there is a water source committee, whose fundamental function is the
conservation of the water resources. To accomplish this, the people contribute a large number of
106 work hours, called faenas, which represent sacrifices, hardships and economic expense, given that
the work is done ad honorem. This process is not understood or supported by state agencies, which
create 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 for
two years. The board conducts activities that include the maintenance of the entire distribution
system, the organization and distribution of work crews (faenas) to clean up the area around
the water sources and water containment tanks, and reforestation. They prevent tree-cutting,
identify new water sources and evaluate their capacity. In communities where the committees
are well organized, there are regulations for the use of this vital liquid. The board of leaders
establishes monetary quotas subject to previous consultation and consensus, which they are
responsible for managing transparently. In addition, a member who does not fulfill his or her
faena responsibility must pay a monetary fine, and if the person fails to attend a committee
meeting he or she will suffer the same penalty. Some visionary committees have opened bank
accounts or have deposited their funds in a local cooperative.
Periodically, the community celebrates a Mass, a worship service or a Mayan religious ceremony to
show 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, in
keeping with this fascinating reality, the people connect practices with community values, such as
mutual assistance (TOBANIK), communal autonomy, common law, community organization,
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 important
management capacity.
Finally, we cannot fail to mention the problems that these communities face, the advance of the
agricultural frontier due to uncontrolled logging, and the pressure of population growth.
Totonicapán has a population density of 315 inhabitants per square km., while the national
average is approximately 115 inhabitants per square km. The politicisation of the community
organizations by the governing political party, and the process called modernization which
translates into the Plan Puebla-Panamá, reveal some of these issues. Faced with these situations, we
are strengthened by our culture and its values and social identity.
107
Santos Augusto Norato is the President of Totonicapán Indigenous Mayor’s office and a member
of the Totonicapán community. He is also Director of the Training Centre – Cooperation for Rural
Development of the West (CDRO), in Aldea Santa Rita, Salcajá, Quetzaltenango, Guatemala.
cercap@itelgua.com
The spiritual connection to water that indigenous societies maintain as

108 an integral aspect of their culture is a basis for countless water conflicts
with outside, predominantly Western, forces for development. While
Western cultural values do give some attention to a spiritual dimension
of water, it is very much a minority view. The dominant value system
determining how water is utilized in Western culture is basically an
economic one. In indigenous societies the situation is reversed. The
dominant cultural perspective places great importance on spiritual
aspects of water and water bodies. Internal debates revolving around
development options nonetheless often reflect economic considerations
promoted by the outside dominant society. More explicit understanding
of indigenous value systems by the Western world would help relieve
cultural pressure on indigenous societies, and to the extent that the
West might emulate indigenous notions of humanity’s role vis-à-vis
nature, 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 provides
assistance in water planning to indigenous communities.
DGroenfeldt@indigenouswater.org
Do indigenous perspectives on water represent a can find many exceptions. The category of ‘the
type of spirituality that is absent from Western West’ has been noted(1), and my claim that there is
societies, or are they fundamentally similar? This such a thing as Western culture is perhaps easily
paper explores the nature of water and spirituality challenged. And even if there is such a culture,
in the ‘West’ as contrasted to indigenous soci- does it have a theory about water? On this point,
eties(1). Two interconnected arguments are put I will simply assert that there are broadly-held
forth in this paper. The first is that Western views assumptions in Western culture about what water
on water reflect significantly distinct values, is and is not, and to maintain simplicity, I refer to
which contrast and clash with indigenous value these assumptions as a cultural theory of water.
systems. While there are spiritual traditions
within Western society that resonate with indige- Water, in Western cultural theory, is a resource. It
nous values regarding nature (and hence, water), is not alive, it is inert, and it can be fully defined
these Western spiritual traditions identify less in terms of its physical properties. It has no con-
completely with Nature, and externalise a deity sciousness, and it has no life. It is neither plant
that is seen as separate from Nature. The second nor animal; it is a type of mineral, a liquid one
argument is that even the more naturalistic (usually) but very much a mineral. It has no value
themes that are found in Western religions in itself, but has great potential value in being
occupy minority positions within Western society. applied to some productive purpose. There is no
By culturally relegating the spirituality of nature benefit from water’s existence other than the
to that of a minority tradition, Western society extent to which humans can benefit, directly or
has set the stage for economic exploitation of indirectly, from the water itself, or the environ-
water and other natural resources, without the ments that water supports (e.g. stocks of food
environmental restraints attached to a more fish that depend on the viability of a lake ecosys-
dominant spiritual perspective. tem). Water is a resource, much like coal or oil or
phosphate or gold. It is not only culturally per-
While these two arguments may sound like familiar mitted, but actually culturally preferred to make 109
criticisms of Western society, my intention is not use of the resource by ‘mining’ it, or recovering it
to criticize, so much as to suggest some construct- in whatever way is technologically feasible.
ive implications, namely that indigenous societies Choosing not to recover the resource, electing
have much to teach us about the profound reli- not to utilize the potential benefits of the
gious and philosophical relationship of man and resource, is considered to be wasteful and in this
nature, as well as about the practical relationship sense, even sinful.
of human societies with natural ecosystems.
Indigenous views about water are much more The environment within which water is found is
than cultural curiosities that add an interesting also a resource, which can be utilized for product-
dimension to international discussions of water. ive benefit. Recent views about the water envi-
Indigenous perspectives about water are simulta- ronment have changed to accord greater eco-
neously a warning and an insight that can help us nomic value to the environmental services of the
all – together – to find a development path that ecosystems that water supports, such as a riverine
is environmentally sustainable. environment that includes fish, birds, wildlife,
wetlands and the associated plants and micro-
organisms, etc. This recent appreciation of the
biological aspects of river systems, and the asso-
ciated economic benefits of water ecosystems,
The Western cultural has led to reconsiderations about the desirability
of water diversions for irrigation, and reanalysis
theory of water of the costs and benefits of hydropower dams.
But while the equations have changed with the
Let me begin this section by asking the reader’s new values accorded to biological and ecological
indulgence in my choice of terminology. I am try- factors, the cultural theory underlying the equa-
ing to capture broad meanings, and this requires tions has stayed the same: the value of water is
broad categories to which the perceptive reader defined in economic terms(2).
Minority views on water upsetting the hydrology of the streams was a

form of manifest destiny that took on a sense of
within Western culture religious duty. Today the only patch of forest in
the state of Wisconsin that has not been clear-cut
Western culture masks many minority voices that is the reservation land of the Menominee Indians
provide richness and depth to the total cultural (Davis, 2000). The streams running through these
experience. The bubbling of minority discourse lands still contain some fish, but they can be
also serves to define the position of the dominant eaten only sparingly to avoid build-up of danger-
culture, by constantly challenging it and forcing ous carcinogens, the result of 20th century indus-
clarification – and sometimes successfully inject- trial development.
ing reforms into the dominant position. Within
the contemporary Western discourse about Contemporary calls for a new environmental
water, there is a lively debate about the extent to ethic have received little attention in the rush for
which water is an economic good or a social good. economic exploitation of natural resources.
The World Bank, for example, calls for borrowing Compared with indigenous spirituality, the
countries to treat water as an economic good, Western ethical approach to nature is an emascu-
that can be bought and sold, and that has eco- lated form of spirituality, having a moral author-
nomic value (measured in monetary terms). ity but lacking a religious one. The religious
Against this dominant view is the liberal minority authority that is part of Western culture – in the
perspective that water is a social good that is nec- form of the Catholic, Protestant, and Jewish reli-
essary for survival, and should be made available gions – lacks a credible environmental message.
to all. This debate between pure economic valua- Indeed, Christianity is often cited as being part of
tion and that of a blended economic-plus-social the problem (e.g. White, 1967). Efforts are being
valuation, constitutes much of the policy dis- made, however, to promote a new environ-
course about water. Other minority views, partic- mental ethic, not only inside organized religions,
110 ularly spiritual ones, can also be found within but also outside the Church, through an environ-
Western society, but these have little chance of mental ethos rooted in various traditions, includ-
gaining serious attention when the focus is on the ing 19th century American transcendentalism. For
battle between the proponents of economic example, the National Catholic Rural Life
thinking versus those of more social thinking. Conference (NCRLC) is formulating a ‘water
ethic’ that seeks to respond to the appeal of
Historically there is a long tradition of environ- Pope John Paul II for Catholics to undergo an
mental spirituality within Western culture, which ‘ecological conversion’, a moral call to protect
has always remained safely marginalized from the environment and make the earth a place
the mainstream. The followers of St. Francis of where all life is valued and can grow in harmony
Assisi fit into this category. In the United States, (Kautza and Grontsky, 2003).
the 19th Century Transcendentalist writers,
notably Henry David Thoreau and Ralph Waldo The Earth Charter initiative promotes an environ-
Emerson, articulated a spiritual interpretation of mental ethic that reveres water bodies as intrinsi-
the natural world. The reaction of mainstream cally important, independent of their economic
American society to spiritual interpretations of value to people(3). The Charter reflects diverse tradi-
nature was to treat these as metaphors, without tions, both religious and secular, brought together
acknowledging a true spiritual aspect of nature. in a consensus statement that avoids spiritual asser-
The virgin pine forests of Wisconsin were awe- tions to render it palatable to believers of any faith,
inspiring ecosystems reminiscent of European as well as atheists. The moral imperative is to hon-
cathedrals, perhaps, but were not accorded the our the Earth as our mother, which can be inter-
status of sacred places in the eyes of the 19th preted religiously, or through evolutionary ration-
century white settlers who encountered them. ality in the sense that human life, as well as all other
Nor were the streams and rivers – which were life, is derived from a family tree originating with
abundant with fish and supported a complex the Earth itself. The Earth Charter seeks to use this
array of wildlife – considered sacred to these kinship between people and the Earth as a moral
white settlers. Clear-cutting the forests and basis for protecting the Earth’s natural resources.
In both Christianity and within the environ- The fact that a major river has gone dry due to
mental movement, there are strong currents of water diversions caused no particular alarm until
kinship with the Earth, and a spiritual perspective environmental groups brought a lawsuit to force
on the nature of water itself. While water is not the federal government to release water stored
viewed as a form of life, it is viewed as something in the dams, in order to provide an environmen-
sacred, in the sense that it is a basis for life, and it tal flow. The legal basis for the suit was to protect
is a major shareholder in the stock of Earth’s an endangered species of small fish, the Silvery
resources. To the extent that the Earth itself is Minnow (Hybognathus nuchalis), whose habitat
sacred, then water too is sacred. coincided with the stretch of river that had
become dry. Under environmental laws already
If Western culture contains these sacred views of in place, water withdrawals from federal projects
water, then why is water so abused in practice? were not allowed to endanger the survival of a
There are two parts to this answer. First: the spiri- fish (or plant) species.
tual message about water is a qualified one, that
does not explicitly acknowledge water or water The initial outcome of the legal action was a
bodies as having a spirit quality. Rather, water is court order instructing the concerned govern-
sacred through a logical framework of the earth ment agency (the Bureau of Reclamation) to
and all creation, as representing a sacred trust release water to preserve the fish habitat, even if
from God (Christianity) or from evolutionary his- it meant cutting contract-water deliveries to
tory (Earth Charter). The spiritual message, in farmers and municipalities. This legal decision
other words, is muted. It is there, but it is weak. was quickly circumvented by political action in
Secondly, the spiritual perspective about the the federal Congress, where both the Republican
environment (including water), even in this and Democratic Party senators from New Mexico
muted form, is very much a minority voice within joined forces to push for an exemption in the
Western culture, and even within Western reli- federal Endangered Species Act. The final result
gions. The mainstream religious expressions is an attachment to a Congressional bill that 111
within the United States, for example, view expressly forbids the government agencies con-
water as a secular commodity that can be trolling the Rio Grande water to reduce alloca-
exploited without religious or moral compunc- tions to water rights holders (the various munici-
tions. Proponents of environmental ethics repres- palities, farmers, industry, etc) for the purpose of
ent minorities within the organized religions of the saving the habitat of the Silvery Minnow.
West, as well as within Western society generally.
What cultural values are being expressed in the
Case study: the Silvery Minnow Silvery Minnow debate? Private ownership rights
The Rio Grande River, which forms much of the to water are viewed as sacrosanct – literally
border between the United States and Mexico, sacred – so long as there is water that can be
has become intermittently dry in parts of its diverted. The survival of the Silvery Minnow and
upper basin in New Mexico (US), because of the health of the riverine habitat are also seen as
diversions for agriculture and urban / industrial important, but these concerns cannot match the
use. All the waters of the river are legally owned greater priority of meeting the water commit-
by the various water users – farmers, private comments made to legally recognized water cus-
panies, and municipalities – and the federal gov- tomers. The Mayor of Albuquerque, the largest
ernment has constructed a network of dams to city along the upper Rio Grande, was enthusiastic
regulate the flow and ensure that water is avail- at hearing the news that the city’s water
able to the owners. Not only is there no water allowances would not be cut to create an envi-
allocated to environmental flows, but the water ronmental flow for the Minnow. “I’m a very
is actually over-subscribed and is supplemented happy mayor this afternoon,” he said. “All of
by an inter-basin diversion from the adjacent Albuquerque should be dancing in the street”(5).
Colorado River system. Water for nature is seen as a luxury to be
addressed only after the human customers have
been fully served.
Water and spirituality in But if indigenous people view water as such an

important spiritual aspect of life, then how is this
indigenous societies reflected in the actual decisions they make about
For indigenous societies, the natural, spiritual water development? When money is at stake, are
connections linking humans, water, fish, and the these spiritual values strong enough to over-ride
river itself preclude the option of placing human the monetary values? Does water development
desires for an unreduced quota of water ahead within indigenous territories reflect the values
of nature’s needs. In contrast to Western culture, articulated in the Indigenous Declaration on
the indigenous spiritual perspective of the envi- Water? This question is not entirely fair, since
ronment is clearly articulated and directly experi- indigenous societies are normally in a position of
enced. It also provides a more dominant ‘voice’ political disadvantage vis-à-vis a dominant society
within the society, than is the case in the West. which seeks to impose, even with good intent-
The introductory words of the Indigenous ions, its own value system – which is generally
Peoples’ Water Declaration(6) very clearly demon- Western in its broad features.
strate the identification that indigenous spiritu-
ality makes between people and Nature: Water development projects within Indigenous
• “We, the Indigenous Peoples from all parts of areas typically are imposed on the indigenous
the world assembled here, reaffirm our rela- communities by outside forces of government
tionship to Mother Earth and responsibility to and / or private industry. Many of the papers in
future generations to raise our voices in soli- this present volume document cases of outside
darity to speak for the protection of water. political, economic, and even military pressure on
We were placed in a sacred manner on this indigenous communities to force particular
Earth, each in our own sacred and traditional forms of water-related development. Perhaps
lands and territories to care for all of creation the most familiar examples of forced develop-
and to care for water. ment are hydro-power dams built on indigenous
112 • We recognize, honour and respect water as lands for the purpose of exporting power to non-
sacred and sustaining. Our traditional knowl- indigenous areas. The injustices of dam develop-
edge, laws and ways of life teach us to be ment have been carefully documented by the
responsible in caring for this sacred gift that recent World Commission on Dams, and recom-
connects all life. mendations adopted for empowering indige-
• Our relationship with our lands, territories nous communities regarding dam-related devel-
and water is the fundamental physical cultural opment decisions(7).
and spiritual basis for our existence. This rela-
tionship to our Mother Earth requires us to But what about cases of indigenously controlled
conserve our freshwaters and oceans for the development, where indigenous communities
survival of present and future generations…” themselves decide whether and how water
development will occur? When indigenous com-
Water is not only an aspect of Indigenous spiritu- munities themselves are in charge, do spiritual val-
ality, but a very major component of that spirit- ues become evident in the decisions made about
ual world. Water, whether as a substance, or in the water development? Here we encounter complex-
form of water bodies (rivers, lakes) and meteor- ities of meaning and debates about assigning
ological phenomena (rain, snow, fog, clouds), is responsibility for water development decisions. If
seen through a spiritual – not an economic – lens. an indigenous community agrees to allow a dam
Water is not viewed as a way of making money any to be constructed that forever alters the riverine
more than children are seen as sources of revenue. environment that has nourished that community
Money can, of course, be derived from the labour for generations, is this an example of free deci-
of children, and from water projects, but this is not sion-making? Was the decision made by the entire
the dominant motivation for having children, or community or by a political minority that has
for protecting water. The spiritual perspective of usurped control? Did spiritual values pertaining to
indigenous people is one that is challenging for the river enter the decision-making process?
Westerners to appreciate, given our own peculiar When confronted with actual cases where indige-
cultural perspectives as outlined above. nous communities have literally sold their natural
resources to outside developers, it is easy to pre- If we analyse the Black Mesa case in terms of out-
sume that spiritual values are really superficial, comes – the coal-mine is operating with the con-
and that money has far greater power than spiri- sent of the Hopi government – then we could say
tual considerations. Do indigenous societies really that spirituality has lost out to financial pres-
hold the spiritual values that their leaders claim? sures. But if we look at the process by which this
Or are these values only tools for political negoti- outcome has resulted, then we see a different
ations and international statements? picture of spiritual values. There is strong opposi-
tion to the mine within the Hopi communities.
The Case of Black Mesa (Arizona, USA) Indeed, there is suspicion of the tribal govern-
The Peabody coal mine that straddles the tribal ment itself, seen by traditionalists as colonial
lands of the Hopi and the Navajo in the high arid tampering with traditional Hopi institutions.
plateau of northern Arizona, has a contract with Hopi opposition to the mine is formalized in
the Hopi tribal government, to extract pristine Black Mesa Trust(8), an organization dedicated to
groundwater for its mining operations. The the preservation of the water supplies that the
water is mixed with the coal to form a slurry, Peabody coal mine is depleting. The organization
which is conveyed by an open aqueduct nearly is headed by a formal tribal chairman, who has
400 kms to an electrical generating plant serving changed his own views about the mine since
the cities of southern California. The contract leaving office, and who has galvanized many
allows Peabody Energy (a subsidiary of Lehman Hopi to speak out.
Brothers) to pump water from an aquifer, which
feeds the springs and few streams that comprise The approach of Black Mesa Trust is to appeal to
the sole source of water – other than infrequent people’s spiritual values about water in general,
rainfall – for the entire Hopi tribe, and for the and particularly the sacred springs which are now
Navajo communities in the vicinity. As a result of going dry from over-pumping by the mining
the pumping, which has gone on since the 1960s, company. The argument is not based on econom-
the Hopi streams are starting to dry up, and the ics (although the argument could be made that 113
ceremonies that have always been integral to the tribe’s contract with Peabody coal drastically
Hopi religion can no longer be performed. It is underprices the water), nor is it based primarily
possible (though expensive) to bring drinking on environmental considerations (though the
water in by truck, but the religious base of the deterioration of the aquifer is an important con-
tribe is now at risk of being permanently lost. cern). The message of Black Mesa Trust is prima-
rily spiritual and cultural: the sacred springs are
How has the Hopi tribal government allowed this suffering just as the language is suffering. The
to happen? There is, of course, a history. The next generation is in danger of being left with-
tribal government is a relatively recent (1947) out Hopi water and without Hopi language. This
creation, imposed by the federal Bureau of Indian message resonates with the Hopi people because
Affairs (BIA) partly for the purpose of having a their spiritual view of water remains largely
convenient body to consent to a coal-mine lease. intact. They are losing their water, but not their
There are legal barriers to breaking the contract values.
and stopping the mine, and most importantly,
there are financial considerations. The vast major-
ity of the tribal government’s budget derives from
the royalties and fees collected annually from
Peabody. The tribal council is not in favour of Comparing Western and
rescinding the contract, apparently for this finan-
cial reason. And what of the spiritual considera- indigenous spirituality
tions? Both the springs, and Black Mesa itself, have
always been considered sacred to the Hopi, and
about water
yet here is a Hopi tribal council that votes to con- Indigenous societies, in general, hold spiritual
tinue the contract, in exchange for its operating values about water that are not found in the
budget. Has the Hopi tribe sold its spirituality to mainstream of Western culture. In the discussion
the coal-mine? above, I have tried to show that Western culture
does contain some minority views about the spir- outside indigenous societies (Groenfeldt 2003).
ituality of water, but these views do not shape Within indigenous societies, this process is one of
actual decisions about how water is used. Rivers cultural revitalization. From the outside, i.e. from
are protected in the West only where there is an the Western perspective, an appreciation of
economic reason to protect them. Even Western indigenous values comes from education. This
environmental movements subscribe to eco- was the basic intention of UNESCO’s co-sponsor-
nomic values. In IUCN’s recent publication about ship of the sessions on Water and Cultural
the importance of environmental flows (Dyson et Diversity at the 3rd World Water Forum.
al 2003), for example, the rationale presented is
based purely on economics – environmental eco- Western appreciation of cultural diversity regard-
nomics to be sure – but without any appeal to ing water, however, needs to go beyond the level
spiritual or even aesthetic argumentation. of, for example, appreciating tribal art in a Paris
gallery, to one of respecting a society’s cultural
Indigenous societies, in contrast, invariably view right to a diversity of thought and values. It is the
water and water bodies as spiritual phenomena. lack of genuine respect for cultural diversity that
They might fail to protect those water bodies from lies at the foundation of many controversies
external forces, and even from internal forces, but about water development. Does the US Bureau
such failures should not be misinterpreted neces- of Indian Affairs respect the Hopi view of their
sarily as failures of values; rather these are more springs as sacred places? Did Hydro-Quebec
likely to represent political failures. For most mem- respect the Cree view of the animals they hunted
bers of indigenous society, their spiritual values as sacred beings? Does the World Bank respect
about water are still very much intact. It is the indigenous views of sacred river spirits? It is prob-
minority voices of secularism within indigenous ably safe to say that a position of ‘appreciation’
societies that find powerful friends among out- of indigenous spirituality is easier for Westerners
siders with vested interests in exploiting indige- to adopt than is genuine ‘respect’. Appreciation
114 nous water resources. These are the forces that of the river spirit means that the dam can still be
drive water development in indigenous areas. built, while respect for the spirit implies that the
dam might not be built.
It has been the presumption of both outside
water experts as well as the more secular mem- The differences between Western views on water
bers of indigenous societies, that Western-style and the more spiritual, indigenous values about
water development has much to teach indige- water suggest great potential for conflict, but,
nous societies. The future of indigenous societies, with education, there can also be cooperation.
according to this view, will be the adoption of The emerging Western approach to water man-
Western approaches. Certainly history points in agement that accords greater economic value to
this direction; that indigenous values will eventu- healthy aquatic ecosystems offers particular reason
ally fall in line with the Western values, as for hope. The European Union’s recently adopted
Western technology dominates the world scene. Water Framework Directive, for example, requires
Yet Western technology is not doing very well restoration and maintenance of riparian habitats.
with managing water. The long-term prognosis The survival of the Silvery Minnow would be
for the world’s water suggests that an accommo- assured if the state of New Mexico adopted the
dation needs to be made with the environment same policies. By agreeing on the importance of
in the interests of long-term food production. healthy water ecosystems, a major potential for
value-based conflicts can be reduced.
Does indigenous spirituality regarding water
have a future? Is it destined to succumb to The purpose of learning more about indigenous
Western concepts of secular rationality? There spirituality of water goes beyond environmental
are many reasons to suggest that indigenous strategies, however. The West has much to learn –
value systems do indeed have a future, and that or to relearn – from the indigenous view of man’s
as alternatives to Western culture become fewer spiritual relationship with the rest of nature. The
and fewer, the importance of valuing diversity is ethical perspective embedded in indigenous
also becoming more appreciated both inside and views about nature and water is largely missing
from the Western toolkit on water management, REFERENCE LIST

Davis Thomas, 2000, Sustaining the forest, the people, and
and we Westerners need to acquire some ethical
the spirit. State University of New York Press.
tools. It is in everyone’s interest that Western society
learns from indigenous peoples what it means to Groenfeldt David, 2003, The future of indigenous values:
cultural relativism in the face of economic development.
feel a kinship with the earth, with the land, and Futures 35(9), pp 917-929.
especially, with water.
Dyson M, Bergkamp G, Scanlon J eds., 2003, Flow: the
essentials of environmental flows. IUCN Water and Nature
Initiative (www.waterandnature.org).
Kautza Tim, Gronski Robert, 2003, A water ethic to renew
the earth. National Catholic Rural Life Conference website
(www.ncrlc.com/WaterEthic-RenewEarth.html).
White Lynn Jr, 1967, The historical roots of our ecologic
crisis. Science 155, 1203-7.
ENDNOTES
(1) The ‘West’ refers in this paper to the industrialized,
so-called ‘developed’ countries, whose centre of gravity is in
North 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 115
‘developing’ countries which are embarking on a
materialistic 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’ variables
such as landscape value, cultural heritage value, and even
religious value, but only if they can be reduced to a common
currency which, in economic analysis, is monetary. This type
of analysis has been applied to the multi-functional benefits
of agriculture and the same approach could be applied to
multi-functional benefits of water.
(3) The text of the Earth Charter is available at
www.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 at
www.indigenouswater.org.
(7) The report of the World Commission on Dams
was released in November 2000 and is available for
download at www.dams.org.
(9) For details about Black Mesa Trust, see their website:
www.blackmesatrust.org.
116
Water rights and national legislation
117
118
“Here, poverty is widespread, but when we make proposals, they treat

us like subversives. The thing is that the government doesn’t understand
reality. They tell us that this is politics. Of course it is. Do we have a right
to politics, or can only the government talk about that? We have our
own 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 (Centro
AGUA), 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.
vhrocio@entelnet.bo
Background Although significant headway has been made in

achieving recognition for the rights of indige-
Over the past few years, demonstrations by nous peoples and rural communities, in most
indigenous peoples have shaken a number of cases they “(…) have to overcome a series of hur-
Latin American countries and led them to the dles, as a result of the complexity and high proce-
brink of serious crisis. This has prompted social dural and / or enforcement costs of norms and
scientists and political analysts to attempt to procedures to operationalise their rights”
understand what is going on, since something (Marinissen,1998). This has a negative impact
crucial is obviously happening – but what? because, if we add to the bureaucratic difficulties
the lack of political will, we can envision a serious
Since the 1990’s, the struggle for land and natural threat to respect for and actual fulfilment of
resources has been a key issue for Latin America’s these rights. Moreover, in some cases, this recog-
indigenous movement. However, we must nition also poses various dilemmas, some of
remember that this “is not a right to be which we will explain below.
achieved in a vacuum, nor limited to purely sym-
bolic aspects – the Earth and its resources are its So, in summary, we could say that the process of
material support” (Toledo, 1996). It is precisely recognizing diversity, based on the right-to-be-
for that reason that the main demands during different approach, is just getting off the
these last few years have involved control over ground. And, like any beginning, this poses a
and management of these key resources. The series of challenges that must be addressed.
strategy of struggling for territorial ownership Considering pluri- or multi-national issues leads
has been displaced by the quest for immediate us to think more seriously about other issues,
recognition and respect for the rights to control such as participation and societal oversight,
and manage certain resources. Obviously, this democracy and autonomous governance on dif-
shift in strategy does not mean that indigenous ferent levels (local, ethnic, etc.).
peoples have given up on territorial demands, 119
but they are acting with ’political realism‘ and In the more specific domain of water resources,
are responding to concrete situations that call for the debate begins with the legislative amend-
urgent action to avert the day “when indigenous ments undertaken by several countries in the
rights are finally recognized, if such a day ever region. In some, such as Ecuador, Peru and Bolivia,
comes, [but] only a few resources will actually be governments have put forward proposals, that
under indigenous control” (Toledo, 1996). include de-authorizing the rights of indigenous
peoples and rural communities who had rights
This position, which some consider more prag- and had been managing water since pre-
matic and focused on the short term, attempts to Conquest times. In certain cases (Ecuador and
achieve protection for natural resources that are Bolivia) legal counter-proposals have even arisen,
located in territories belonging to, or that are with the main feature of emphasizing the essen-
under the control of indigenous peoples and tially community-based, social and ecological
rural communities, so that their rights will not be nature of water, without denying its economic
affected by third parties. Accordingly, proposals importance. The voices raised in several places to
have been formulated and measures taken, defend this latter vision have led to reconsidering
including: previous approaches and recognizing the existing
rights of indigenous peoples and rural communi-
“(…) protection of vulnerable groups and ties, as well as guaranteeing their participation in
areas, positive discrimination, safeguarding institutions created to manage water resources.
of the ecological balance. Concrete legal However, most current proposals are still insuffi-
strategies may be assertive, such as demand- cient, in the context of the scope required by
ing exclusive concession, or mild, such as international standards, such as the ILO’s
applying for preferential rights, with mid- Convention No. 169. For example, if these pro-
range options such as prohibiting concessions posals recognize the rights of indigenous peoples
in certain areas or resources”. (Ibid.) to water sources located in their territories, they
do so only in terms of ‘actual use’, or they also
consider the rights acquired by powerful stake- “On the basis of these ownership rights,
holders, which limits the scope of this type of irrigation water users feel that they own the
provision. water they use. This feeling is also reinforced
because the government, despite the consti-
In Bolivia, this situation is even more complex, tutional provision giving it ‘original owner-
since unlike other countries even in the Andean ship’ of natural resources, at least regarding
region, we have a government that is weak and water resources, has never enforced this in
plays a negligent role in water management. practice.
Accordingly, water management has been
handled autonomously and independently, with (…) most irrigation water users’ organiza-
only occasional outside intervention (except for tions can back their water use rights with
development projects), especially in rural zones. documentation that is valid in any legal sys-
It is only recently and in response to pressure tem; these rights are also clear in terms of
from international co-operation agencies, that water source(s), the zone of influence of the
the Bolivian government has attempted to play a irrigation system (which, among other
more active role in water management, mainly aspects, is also a territorial phenomenon),
by enacting laws to regulate water use rights. social organization and their own manage-
ment norms. It goes without saying that,
This unique feature of Bolivia’s situation has when these are Quechua indigenous commu-
enabled local management and water rights to nities and rural organizations, these norms
evolve(1) based on different cultural principles are grounded in their own organizational
and values such as the ‘uses, customs and rights- culture.”
of-way’ wielded by rural and indigenous people (Proposal to be considered in drafting the
and used for negotiating changes in laws and Water Resource Law, 21 August 1998)
government institutions, even for making
120 demands regarding territory.
Nevertheless, most indigenous and rural commu-

nities and peoples have no documents or records The thorny road to
attesting to their rights over water sources.
Recently, with recognition from the Community formulating a new
of Origin Territories (which have been authorized
mainly in Bolivia’s Amazonian region) some offi-
water law for Bolivia
cial rights have been granted. However, these are The first legal reference since independence in
very limited, since rural folk are basically granted Bolivia dates back to 1879, when a Decree was
water supply for domestic use and in exceptional issued (8 September 1879) on Water Ownership
cases for fish farming. Moreover, the possibility and Use, and raised to the status of a Law on 28
always remains open for these resources to be November 1906. Several parts of this 1906 law
reassigned for other uses. have been repealed by later rulings, so although
its provisions are still currently in effect(2) they are
However, in many places, there are still refer- not enforced, mainly due to negligence and
ences to so-called ‘historical rights’ – that is, those because sectoral laws and regulations have
rights granted to communities (formerly Royal superseded its norms with different ones.
Indian Peoples) during the colonial period. These
rights 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 demand
these rights even today:
YEAR LEGAL INSTRUMENT pare an alternative draft, amending the norms

contained in other laws and rulings that jeopard-
1953 Law of Agrarian Reform ized smallholder, indigenous and settler rights to
1967 National Constitution water. Moreover, until this commission finished
1967 Regulations on Water for Irrigation, its work, “no other norm or concession regarding
Ministry Resolution No. 210/67 water resources would be enacted”(3). Finally, as
1975 Code of Civil Procedures part of these agreements, the 1906 Water
1975 Decree-Law on River, Ownership and Use Law was repealed.
Lake and Maritime Navigation (DS 12684)
1975 Decree-Law on Wildlife, National Parks, Several years have passed since these agreements
Hunting and Fishing (DS 12301) were signed, but until now (end of 2003) no head-
1977 Regulations on Water Sector Institutional way has been made in complying with the above
Organization and Concessions (DS 24716) points, or in formulating new legal norms for
1990 Regulations on Fishing and Bolivia. This has meant that in the absence of any
Aquaculture (DS 22581) general norms enabling new rights to be granted,
1993 Law on Public Participation specific laws, sectoral provisions and administra-
1993 Law on Exports tive contracts are being used, often ensuring
1994 SIRESE Law optimal conditions for investors that disregard
1994 Law on Electricity social and even environmental considerations.
1996 Forestry Law
1996 INRA Law Nevertheless, despite the time that has gone by
1997 Mining Code and the difficulties encountered, water resource
1997 Regulations on Protected Areas (DS 24781) legislation is still on the public agenda and is a
1997 Regulations on the Use of working priority for international co-operation
Public-Domain Property and agencies because of the implications for invest-
Water Service Right of Way (DS 24716) ment in development projects (in irrigation and 121
1998 Regulatory Standards for domestic water supply). These agencies have
Water Use and Utilisation for Irrigation, been pressuring and funding the government to
Bi-Ministry Resolution 01/98 finalise a new legal framework. But this has not
1999 Law on Municipalities happened yet, partly because the issue is so
2000 Law Nº 2066 on Water Supply and polemical and complex, and because sectoral
Sewerage Services interests prefer to maintain the current situation
(Situation by end of 2003)
(mining, industry, hydropower). In many cases,
Table prepared by the author. this gap in the legislation enables other legal
provisions to guarantee them major rights and
So, the laws in effect regarding water resources in few responsibilities.
Bolivia, along with some general principles in the
national Constitution, provide a complex maze of In a change of approach to that initially taken to
norms regulating concrete sectors. For this rea- modify the legislation in Bolivia, and to make
son, a bill has been under discussion for the last 30 progress in formulating a new law, two consulta-
years, to fill the gaps left by the 1906 Law. But it tion processes began in 2000. One aimed to draft
has not yet materialized, despite 32 draft versions regulations for Law No. 2066 on Water Supply and
by the government and several alternative pro- Sewerage Services (financed by the World Bank
posals by civil society organizations. and facilitated by GTZ), and the other concerned
Irrigation Norms for Bolivia (financed by the IDB
Such strong social forces opposed the new Water and facilitated by the Commission for Integrated
Law (September and October 2000) that the gov- Water Management in Bolivia and the National
ernment was forced to withdraw and shelve the Irrigation Program). Both processes have had
draft being scrutinized at the time by the extremely interesting results in proposing legal
National Congress, thus ‘freezing’ discussion on alternatives for a more social consensus-based
the topic. Agreements signed at the time bound water management, but they have run up against
the government to set up a commission to pre- a lack of political will(4) to put them into practice.
During the process of constructing the Irrigation The issues

Norms, representatives from the watersheds
where work had been carried out prepared pro- As part of the above process of legal and policy
posals for norms to create a Water Authority and amendment, several questions have arisen
to regulate the irrigation sector. These were pre- regarding the issues discussed in this article,
sented to government authorities and interna- including the following:
tional agency officials. On the basis of this expe-
rience, it was decided to begin systematizing What should be recognized?
proposals from other water-use sectors, and gen- The latest proposals for the Water Law maintain
erating dialogue mechanisms to attempt to build the idea that it is necessary to establish minimum
consensus for a Water Law based on an actual indispensable requirements to obtain recogni-
water policy. Mainly with support from the tion of water rights according to ‘uses and cus-
Ministry of Agriculture, Livestock and Rural toms’ prevailing in each region (Article 53, draft
Development, the Inter-Institutional Water law No 32), indicating that these rights (in situ or
Council (CONIAG) was promoted and finally cre- derived) must be demonstrated and accredited
ated through Supreme Decree Nº 26599 of 20 by presenting some suitable document (Article
April 2002. It aims to: 56-III). This poses a problem that even legal
anthropology has been unable to resolve: that
“Open up dialogue and consensus-building is, it is practically impossible to define what the
among the government and economic and contents of indigenous / rural ‘customary law’
social organizations in order to better adapt are. They include concepts, principles, practices
the legal, institutional and technical frame- and customs which have tremendous diversity in
work regarding water issues, to put in order their formulation, application and reproduction.
and regulate water resource management.” Consequently, the fundamental feature of this
(Article 1) type of normative repertoire is that it is dynamic,
122 continually changing and therefore quite different
To achieve this aim, the Council has three years, from the relatively stable positive-law provisions.
during which time it will:
• “Build consensus and propose actions for How to achieve this recognition, i.e. by what
the country’s water resource use, manage- procedure?
ment and conservation. Most proposals are not clear about this issue.
• Promote preparation and implementation Official proposals have included preliminary pro-
of a consensus-based action plan for legal cedures similar to those pertaining to agrarian
and institutional organization of the coun- rights, whereas societal organizations have
try’s water resources.” emphasized that any procedure must be free of
The Council comprises four ministries as well as charge, swift and simple, without outlining any
representatives of Bolivia’s municipalities, of further details.
irrigator organizations, rural organizations,
indigenous organizations, private enterprise Nevertheless, we could make the following
and academic and research institutions. Council remarks about existing procedural proposals:
members receive no compensation for this work.
For operational purposes, the Council has a The idea of using regulation to define ‘uses and
technical secretariat to facilitate, co-ordinate customs prevailing in each region’ implies, on the
and systematize the whole process. ground, a sort of inventory or codification of
‘valid’, ‘official’ and ‘legitimate’ uses and customs
At the time of writing (2003), the Council had according to government criteria:
met a few times and was moving toward
preparing a water policy, on the basis of consul- “this recognizes a right, but for indigenous
tation and consensus-building with the country’s and rural communities to exercise it, they
societal and economic organizations. must accredit that they are entitled to enjoy
that right. (…) such accreditation and demon-
stration will most surely entail the presenta-
tion of documents showing legal status, doc- What subject / object is to be recognized?
uments dating back to previous times (…) In general, official proposals are so ambiguous
referring to water sources used by communi- that they can be stretched to cover, under the
ties, anthropological and ethnological stud- same rules, not only the rights of indigenous peo-
ies by some cognizant body or some agency, ples and rural communities, but of anyone – indi-
or custom-made by the rights-holder to verify vidual or corporate entity – that has water use
that there are uses and customs”. and utilisation rights “arising from traditional,
(Orellana, 2000: 11) customary uses and customs” (Article 64-II).
At the same time, this entails a risk: Accordingly, the indigenous / rural proposal(5)
stipulates that social, collective and beneficial
“if some community does not have the uses uses of water resources are more important in
and customs that meet the standards set in recognizing rights. These rights are connected to
each region according to the Regulations, organizations considered indigenous or rural,
it may be assumed that they will not have but could also cover urban and peri-urban sec-
customary-law rights to manage, use or tors. So, the nature of the organization matters,
access their water”. (Orellana, 2000) but so does the way the resource is managed. As
a central argument, they say that ‘indigenous-
So, users might not ‘qualify’ for their rights to ness’ should not be the main criterion for recog-
this vital resource to be recognized. This is the nizing their water management rights and
case of several indigenous peoples and communi- approaches, but rather indigenous principles and
ties in Chile, who do not have any recognition of values characterized by ‘collective’ interests.
their indigenous status and are therefore not
entitled to water source concessions. What is the legal validity of this recognition?
A number of official proposals speak of recogniz-
In the case of ‘community irrigation systems’, ing ‘uses and customs’ by granting a Water Title, 123
which have a different arrangement, official pro- the legal value of which is not clear, and is severely
posals would have them “demonstrate owner- questioned by stakeholder organizations.
ship of their land by any suitable means”. This is
almost a cruel joke, since Bolivia is only just now “What kind of title of ownership do these
undergoing the process of straightening out customary owners have? How can they
agrarian property records. defend their rights from any conflict? Where
Other issues, such as the need to have legal sta- is that right registered, under what system?
tus, procedural costs or timeframes for example, Are there two or more classes of legal gov-
have also been questioned. ernmental recognition of usage rights?
Which is the over-riding right? The draft pro-
posal explicitly states that the concession
must be made in clear, stable terms, granting
rights to use, enjoy and dispose of the
resource granted under the “Water Title”.
From this, we conclude that any other form
of access, aside from administrative conces-
sion, creates legal insecurity for hypothetical
beneficiaries.” (Orellana, 2000: 11)
That is, although the law recognizes ‘uses and

customs’ of different indigenous peoples and
rural communities, the procedure to follow, the
legal security to be obtained, and the contents of
those rights are not clear enough.
Indigenous farmers, Bolivia – © R. Bustamante
What are the consequences of this recognition, The new context and the
the desired and undesired effects?
All official proposals state that rights based on challenges it poses
‘uses and customs‘ will be included in the gen- During the last few years, dialogue sessions have
eral concession system, establishing only a few been organized on several occasions, regarding
exceptions such as the non-payment of registra- natural resource management issues in general
tion fees. It was only with the enactment of Law among indigenous and rural organizations and
No. 2066 (Provision of Water Supply and the Government, although almost always as the
Sewerage Services) that a different legal result of a social conflict. These discussions have
arrangement was established for rural communi- made significant progress in recognition of
ties and indigenous peoples (Registration) indigenous and rural peoples’ and communities’
although it is limited for the time being to rights – however, not precisely through consen-
domestic use and consumption. sus-building, but due to the pressure of social
action.
Although this form of recognition has not yet
come into effect because there are no regula- The social conflicts of April (the Water War) and
tions to establish the procedures to follow, a September 2000 in Bolivia have generated a
polemic has arisen regarding its consequences. ‘time-out’ in the process of formulating a new
For example, rights will be registered only “in Water Law, in order to think through the propos-
terms of actual use of water resources”, which als and relate them to a Water Policy. Conflicts
implies that, with the same way of thinking as have also placed this discussion in a context that
during colonial times, water that is declared ‘sur- is essentially different, in which it is important to
plus’ could be granted to third parties. This way have opportunities for dialogue and consensus-
of thinking would also establish all concessions building, not only with social organizations, but
by unit of volume per unit of time, which has even within the government itself. Even interna-
124 been seriously questioned by societal organizational financial institutions such as the Inter-
tions, since this ignores the traditional ways of American Development Bank and the World Bank
allocating rights. Moreover, there is also the now feel that it is important to take societal
issue of revoking rights granted. The causes for demands into account more systematically and
revocation have not yet been clearly estab- responsibly. Along these lines, the process of
lished, since the Law indicates only a limit on formulating the Water Policy, facilitated by the
the ‘lifetime’ of the service. CONIAG, has been planned to involve water use
sectors more effectively. However, although this
Therefore, counter-proposals by societal organi- is a step forward, making decisions in bodies such
zations clearly state that, although “registration as the CONIAG also poses questions regarding
of community water rights have the same legal how to resolve issues of representation, repre-
value as any other type of usage authorisation” sentativeness and legitimacy – in sum, the most
and priority status over any other sort of right, democratic ways to involve society in policy- and
they also include special conditions for putting law-making.
rights into practice, such as over-riding other
rights, multi-use, non-transferability, protection Furthermore, formulating new laws and policies
against seizure, perpetuity and exoneration from is only the beginning of a lengthy process. As we
payment of fees. have seen, although many issues have norms
now, even very precise ones, the problem of
In summary, the crux of the matter is still: How to effectiveness lies in how they are implemented.
achieve recognition of local, indigenous and Procedures established so far for other sectors
rural rights without thereby curtailing them? are complex (overly technical), costly and do not
And how to make headway in more integrated, really guarantee recognition of rights, since they
equitable, sustainable management in the cur- always leave loopholes through which the gov-
rent context of local, indigenous and rural peo- ernment can limit and even infringe on these
ple’s rights? rights to favour economic interests. Often, provi-
sions favouring societal sectors are evaded or
ignored, especially when they involve invest- More modestly, we feel that, to achieve inte-
ments by economically powerful sectors. As grated, sustainable, equitable development of
Marinissen puts it, “there is a relationship indigenous peoples and rural communities, these
between economic interests and the poverty of must be granted a number of rights:
social norms” (Marinissen, 1998). Regarding the
topic of this paper, this has happened, for exam- • to be able to co-exist, according to their
ple, in the several attempts to approve a norm to own culture, traditions and customs (with the
make it possible to export raw water from the implications that this has for education, law,
Sud Lípez region in Potosí to the neighbouring health, etc.)
Republic of Chile, and more generally in the sign- • to have territory that will meet their current
ing of free-trade agreements (such as the FTAA) and future needs, which also means that they
that treat water as a tradable commodity. must have the right to utilize and / or take
part in the benefits of utilizing natural
resources in their territory; and
• to decide autonomously regarding their own
development priorities and alternatives(6).
Final reflections It is essential to guarantee indigenous peoples’
What is going on? This was the question with participation and a certain degree of control
which we began this paper. It is difficult to give a within power structures (national, sub-national
satisfying answer yet. Some analysts have and local governments) and to ensure there is
attempted an explanation: political will (amongst governmental officials,
leaders and the public) to make these rights a
“(…) The strikes in 2000 and 2003 show reality.
unequivocally that political stability, legiti-
macy and governmental order cannot be con- Recognition of these rights for indigenous peo- 125
structed without taking into account the ples and rural communities, moving towards
recognition of the indigenous cultural identi- greater autonomy, ultimately poses the greatest
ties of the majorities, their power structure challenge of all: deciding what to do with pluri- /
and their eagerness to govern themselves. multi-national issues in our countries. How to
Indians are now the core of social struggles, of address these issues in order to make them the
discourse about change and of the forces for foundation of development? This requires us to
this country’s moral and intellectual renewal. seek out a difficult series of balances, between:
Recurring indigenous uprisings, such as the
present one, have rendered visible the failure • the right to equality, and the right to differ-
of society and government to see eye to eye. ence;
What is new is that, in addition to the radical • autonomous systems, and the State per se.
resistance of insurgent indigenous people and
the real capacity to take de facto political con- Some progress has been made in this direction.
trol of sizeable territories, there is an indige- For example, it is clear that indigenous peoples’
nous intellectual elite with a sufficiently pene- demands for autonomy do not entail seceding,
trating discourse that they can make setting up independent States or anything of that
indigenous demands into a full-blown national nature (although different positions arose during
indigenous advocacy movement. And experi- the latest conflicts in Bolivia, that were more
ence with de-colonizing nationalism (as ‘regional’ than ‘ethnic’). Rather, their proposal is
opposed to large-power nationalism), once mainly to build pluri-national states, that is:
unleashed, is that it is irreversible and can be
resolved only by creating multi-national states “Not to create ‘islands’ of segregation, but to
or setting up independent states.” respect – and even encourage – different cul-
(Alvaro García-Linera, 2003 in El Juguete tural identities, to create or enhance other
Rabioso No. 89 and PULSO No.218 respectively). elements of national or governmental cohe-
siveness, with tangible correlations in terms
of equity. The State should willingly allow

adjustments in the persistent asymmetries
built up over our common, indissoluble his-
tory, but – in order to move toward a desir-
able future for the many – it must reduce, or
completely 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- Women washing clothes, Bolivia – © R. Bustamante
tain our traditional lifestyles, which underpin
our survival as a people. And we must be
selective, introducing into our lifestyle what
will enrich us and confronting that which
destroys us.
Autonomy of territories makes it possible to
carry out development processes based on
concepts, traditions and proposals of our
own. We aim to promote and reinforce sus-
tainable management of renewable natural
126 resources, without excluding economic
growth.”
(Sergio Javivi, Member of the CIDOB, 1997)
This thorny ‘balancing act’ poses a challenge: “(…)

for everyone, for the world and its norms, for
countries and the way they see themselves, and
for stakeholders and their discourse, which must
be inclusive” (Urioste, 2000:9). It is important,
above all, to take into account that these issues
can be understood only in “(…) a completely
democratic setting, leading to inter-cultural
dialogue, to avoid positions that get tough and
backslide into fundamentalism” (Assies, 2000: 9).
This would take us toward transforming the State
by ‘making it more sincere’, with a pluri- / multi-
national reality that is increasingly difficult to
ignore. In Garcia-Linera’s words: “the idea is to
achieve modernity as what we actually are, not by
pretending to be what we will never be, and can
never be”.
(Garcia-Linera, 2003, in PULSO No. 218).
REFERENCE LIST
Albo Xavier, Ticona Esteban and Rojas Gonzalo, 1995,
VOTOS Y WIPHALAS, Campesinos y Pueblos originarios en
Democracia. Milenio Foundation, Modernisation Issues
Series, CIPCA Research Notebooks 43, La Paz, Bolivia.
ENDNOTES
(1) Bolivia’s ecological, social, cultural, and ethnic diversity, Assies Willem, 2000, La situación de los Derechos de los
expressed in local water management forms, makes it very Humanos de los Pueblos Indígenas en el Contexto
difficult to generalize about these arrangements. However, latinoamericano. Paper prepared for the event “United in
research on this topic has helped us understand it better. diversity for our rights to territory “, organized Indigenous
Peoples Programme under the Ministry of Justice and
(2) Recently, some sectors have attempted to ‘retrieve’
Human Rights, Santa Cruz, Bolivia.
norms from the old 1906 Law, e.g. to justify rights to
http://geocities.com/alertanet
underground water or to argue that municipalities have the
cognisant jurisdiction to grant rights. Assies Willem, 2000, Unas reflexiones sobre las
contribuciones al Foro. Paper presented at the First Forum
(3) Points of Consensus among government representatives
on Legal Pluralism and Constitutional Recognition of
and rural and indigenous organizations on 4 October 2000,
Indigenous Rights. http://geocities.com/alertanet
as an outcome of the so-called “Water War”.
Assies Willem, 2000, El Constitucionalismo Multiétnico en
(4) The same had happened before, with the Regulatory
América Latina: el caso de Bolivia. Paper prepared for the
Standards for Water Use and Utilisation for Irrigation, which
12th International Congress on “Customary Law and Legal
were to be drafted pursuant to the government’s
Pluralism: Challenges of the Third Millennium”, Arica, Chile,
commitment in order to receive an IDB loan to implement
March 13-17 2000. http://geocities.com/alertanet
the National Irrigation Program. The initial condition was to
enact a new Water Law, but after several abortive efforts Assies Willem, 2001, Jurisdicción y organización Indígena:
this was reduced to simply regulating the irrigation sector. una exploración. Paper presented at the Second Forum on
Work for at least two years finally got these Regulatory Proposals for Constitutional Development and
Standards passed, which are among the first precedents for Jurisprudence: Indigenous Law and Human Rights.
recognition of entitlements due to use and custom. http://geocities.com/alertanet
However, although the standards established very short
Boelens Rutgerd and Doornbos Bernita, 1996, Derecho
deadlines to put rights in order, institutional arrangements
and procedures were not clear. This called for special
Consuetudinario Campesino e Intervención en el Riego. 127
Divergent visions regarding water and law in the Andes,
regulations, which were discussed for about two more years
SNV-CESA, Quito/Riobamba.
and then discarded.
Boelens Rutgerd and Dávila Gloria, eds., 1998, Searching for
(5) Because of the experiences in how this recognition
Equity. Conceptions of justice and equity in peasant
materializes in agrarian and forestry issues. For example, the
irrigation. Van Gorcum, Assen.
INRA Law establishes the need to identify spatial needs,
based on qualitative and quantitative criteria regarding the Boelens Rutgerd, Roth Dik and Zwarteveen Margreet,2002
applicant people’s lifestyle and production system, prior to Legal complexity and irrigation water control: Analysis,
granting them title to water rights. recognition and beyond. Paper for the 13th International
Congress on Folk Law and Legal Pluralism, Chiang Mai,
(6) Convention 169 states:
Thailand.
“Interested peoples should have the right to set their own
priorities regarding the development process, insofar as it Bustamante Rocío, 2002, Documento WALIR Bolivia: Estudio
affects their lives, beliefs, institutions and spiritual well-being legislativo. Wageningen University – CEPAL/ECLAC.
and the land that they occupy or use in any way, and to control
Bustamante, Rocío, 1999, Legislación vigente y propuestas
insofar as possible their own economic, social and cultural
de Ley sobre aguas y riego en Bolivia. Paper for the
development. These peoples must also take part in formulating,
Specialisation Course on “Rural Management and Design of
enforcing and evaluating national and regional development
Irrigation Systems”.
plans and programmes that could affect them directly.
Improving living and working conditions and health and Bustamante Rocío, 1998, Estudio comparativo de la
education for interested peoples, with their participation legislación de agua en Bolivia y Ecuador con referencia a
and co-operation, should be a priority in overall economic Perú y Chile. paper for the Inter-Institutional Forum on
development plans in regions where they live. Special Irrigation – Ecuador.
development projects for these regions must also be
Bustamante Rocío, 1995, Normas de la Gestión y Gestión de
prepared so as to promote such improvement.
las Normas – Uses, Customs and Legislation in traditional
Governments must ensure that, whenever possible, studies
irrigation systems. Thesis for B.A. in Legal and Political
be conducted, in co-operation with interested peoples, in
Science, UMSS, Cochabamba – Bolivia.
order to assess the social, spiritual, cultural and
environmental impact that development activities could Bustamante Rocío, 2000, El difícil camino de la formulacion
have on these peoples. The findings of such studies must be de una Nueva ley de aguas para Bolivia. Lecture at the
considered as fundamental criteria for implementing such Workshop entitled “WATER FORUM”, organized by CGIAC
activities.” (Article 7) and CONDESAN, Cochabamba.
Bustamante Rocío, 2000, Nuestras Aguas, Nuestra Vida”, OIT/ILO, 2000, Convention 169, on Indigenous and Tribal
indigenous and rural rights in proposals for the Water Law Peoples in Independent Countries. Defensor del Pueblo with
in Bolivia. (unpublished) support from Swiss Labour Assistance (AOS).
Bustamante Rocío and Gutiérrez Z, 1999, Usos y costumbres Orellana Rene, 2000, Agua que no has de beber, no la
en la Gestion de Riego: Caos u orden en la gestion de Agua vendas… dejala correr. Privatisation and Commoditisation of
para riego. Chapter 7 in Agua y Municipios, Ed. Paul water rights under the proposed law on water resources,
Hoogendam, PLURAL Editores, Cochabamba, Bolivia. Separata, special issue of Articulo Primero magazine, Vol. 3,
CIJ, 1997, Derechos Humanos, Derechos de los Pueblos No 5, CEJIS, Santa Cruz, Bolivia.
Indígenas. International Seminar 4-7 March 1996, Cochabamba, Palacios Paulina, 2002, Estudio nacional de la Legislación
Bolivia, International Jurists’ Commission, France. Oficial y los Marcos Normativos Consuetudinarios referente
Decreto Supremo (Presidential Decree) No 26599, a la Gestón Indígena de los Recursos Hídricos. WALIR:
20 April 2002, that created the Inter-Institutional Water CEPAL/ECLAC and Wageningen University, Quito.
Council (CONIAG). Palacios Paulina, 2003, Estudio sobre marcos normativos indígenas
El Juguete Rabioso, 2003, Vol. 3 Number 89, 28 September. y consuetudinarios en la gestión del agua en el Ecuador.
WALIR: CEPAL/ECLAC and Wageningen University, Quito.
El Juguete Rabioso, 2003, Vol. 3 Number 90, 19 October.
PEIRAV, 1998, La guerra del agua; conflicto y negociación
FEDECOR, 1998, Propuesta a ser considerada para la
entre organizaciones campesinas y SEMAPA en el Valle de
elaboración del Anteproyecto de la Ley del Recurso Agua.
Cochabamba, 1977-1998. (Final Report and Attachments),
Cochabamba (mimeographed).
Cochabamba: PEIRAV, UMSS-UAW. (mimeographed).
Fundación Solon, 1998, El agua es la Vida-Análisis Critico del
Proyecto de Ley de Aguas. TUNUPA Boletín 1, Solon PULSO, 2003, weekly, Vol. 4, No 218, Friday 10 – Thursday 16
Foundation, Bolivia. October.
Gelles Paul H, 2000, Water and Power in Highland Peru: The Proyecto de Ley del Recurso Agua, 2000, (Version No. 32)
Cultural Politics of Irrigation and Development. Final Document.
Rutgers University Press, New Brunswick, New Jersey. Rivera C Silvia, 1997, La noción de ‘derecho’ o las paradojas de
Gelles Paul H, 2003, Indigenous peoples, cultural identity la modernidad postcolonial: indígenas y mujeres en Bolivia.
and water rights in the Andean nations. WALIR: Derechos Humanos, Derechos de los Pueblos Indígenas,
128 CEPAL/ECLAC / Wageningen University / University of International Seminar, 4-7 March 1996, Cochabamba,
California, Wageningen and Riverside, California. Bolivia, International Jurists’ Commission, France.
Gentes Ingo, 2002, Estudio de la Legislación Oficial Chilena y Solanes Miguel and Getches David, 1998, Prácticas
del Derecho Indígena a los Recursos Hídricos. WALIR: recomendables para la elaboración de leyes y regulaciones
CEPAL/ECLAC and Wageningen University, Santiago, Chile. relacionadas con el recurso hídrico. IDB / CEPAL/ECLAC,
Washington D.C.
Gentes Ingo, 2003, Estudio sobre marcos normativos
indígenas y consuetudinarios referente a la gestión del agua Toledo Victor, 1996, Todas las aguas, el subsuelo, las riberas,
en Chile. WALIR: CEPAL/ECLAC and Wageningen University, las tierras. Notes about the (lack of) protection for
Santiago, Chile. indigenous rights over their natural resources and
Gerbrandy Gerben and Hoogendam Paul, 1998, Aguas y contribution to a public policy for defence, Temuco,
acequias. PEIRAV – Plural Editores, Cochabamba. Mapuche region. (mimeographed).
Izko Xavier, Iturralde Diego et al., 1993, Derecho, Pueblos Urioste Blas, 2001, La era post – nacional en Amerindia: la
Indígenas y Reforma del Estado. Abya Yala Library diversidad se oficializa. DHIAL Magazine 16, Library of Ideas,
Collection 2, Ed. Abya Yala, Quito, Ecuador. International Governance Institute.
Javivi Sergio, 1997, Presentación de la CIDOB in Derechos
Humanos, Derechos de los Pueblos Indígenas, International Van Cott Donna Lee, 2000, Latin American Constitutions and
Seminar, 4-7 March 1996, Cochabamba, Bolivia, Indigenous peoples. Compilation, Department of Political
International Jurists’ Commission, France. Science, University of Tennesseee.
Lillo-Vera Rodrigo, 2000, Conflicto, estado y Pueblo
Mapuche: La interculturalidad como paradigma del Yrigoyen-Fajardo, Raquel, 2000, Pautas de Coordinación
Derecho. Paper presented at the International Congress on entre el Derecho indígena y el Derecho estatal.
Juridical Anthropology and Legal Pluralism. Arica, MIRNA MACK Foundation, Guatemala.
Indigenous Institute Foundation. http://geocities.com/alertanet
Marinissen Judith, 1998, Legislación Boliviana y Pueblos Yrigoyen-Fajardo Raquel, 2000, Perú, Constitución pluralista,
Indígenas. Inventory and Analysis in the perspective of Judicatura monista: Un balance de la pos reforma.
indigenous demands, 2nd Edition SNV – CEJIS, Santa Cruz, Bolivia. Pluri-cultural and Multi-ethnic: Evaluating the implications for
Mesa Técnica del Agua, 2002, Plataforma para una justa y State and Society in Mesoamérica and the Andes. Institute of
equitativa Ley del Recurso Agua. Document from Latin American Studies (ILAS), University of London, London.
Cochabamba, prepared by the Inter-Institutional Technical http://geocities.com/alertanet.
Commission on Water Issues. (mimeographed).
129
Local irrigation practices in indigenous communities, Ecuador – © R. Boelens
In Peru, state law, public policy and the government bureaucracy

responsible for managing water either deny or only barely recognize the
validity of indigenous and peasant water rights and usages.
Transforming this situation will call for, among other tasks, a dialogue
between the government and indigenous and peasant organizations,
130 and subsequent legal amendments.
To contribute to this dialogue, I examine some central concepts for

revisiting relations between the official law and indigenous and peasant
rights to water. My purpose is to clarify the meaning of such categories
as ‘indigenous peoples’, ‘Indians’, ‘rural communities’, ‘peasants’,
‘ethnicity’, ‘development’ and ‘legal plurality’, in order to foster a debate
that will help to transform the current legal framework. In addition to
these issues, I present an overview of current Peruvian water legislation
to illustrate both its particular orientations and constraints, and the
potential for supporting indigenous and peasant demands.
Armando Guevara-Gil, M.A. Cultural Anthropology (University of Wisconsin-Madison, 1991), is a

Law Professor at Pontificia Universidad Católica del Perú, Lima. He is also co-ordinator for Peru of the
Water Law and Indigenous Rights Project – WALIR Peru, coordinated by Wageningen University and
the United Nations Economic Commission for Latin America and the Caribbean (ECLAC).
aguevar@pucp.edu.pe
In Peru, as many Andean countries, failure to subject has inspired diverging public policies and
recognize the validity of indigenous and peasant agendas. At one extreme, we find the moderniz-
water rights and uses is due to the pretensions of ers, liberals or progressives, who intend to
the modern nation-state and the market eco- change the agrarian reality at any cost, including
nomy, which aspire to create a political and eco- cultural costs. At the other, radical Indianists and
nomic arena with universal ‘rules of play’ that are advocates of recovering ‘Andean technologies’
divorced from the cultural, social and ecological favour a romantic vision that places Andean
diversity native to the Andes. Transforming such people beyond history and very close to autarkic
a situation will call for a major political move- utopia (Golte, 2000; Pajuelo, 2000; Mayer, 1993).
ment to reclaim indigenous and small-farmer The conceptual range of viewpoints has generated
rights to control water according to their own unending arguments about the specific features of
approaches. It will also require a theoretical ‘Andean life’, the rural-urban relationship, rural
foundation to underpin demands for change, economics, the current force of Andean culture,
dialogue with the State and subsequent transform- and the propriety of the terms ‘indigenous’ and
ations in governmental legislation (Assies et al., ‘peasant’ or ‘small farmer’.
1999; Boelens and Dávila, 1998; Gelles, 2000;
Guevara et al., 2002; Urteaga and Guevara, 2002). In the political domain, the military reform gov-
ernment (1968-1980) tried to eradicate the word
To assist in this task, I will examine below some ‘Indian’ from official national vocabulary,
central concepts to revisit relations between offi- because of its tremendous racist, exclusive,
cial law and indigenous / smallholder water semantic baggage, replacing it by ‘peasant’
rights. Beyond technical issues regarding the law- (Gelles, 2000)(2). However, during the past decade
making process itself, it is crucial to reflect upon this term has been re-appropriated and retrieved
the foundations of this problem. Therefore, we by the indigenous themselves. This trend is clear-
must question the meaning of such categories as est in the Amazon, where the word ‘native’
indigenous peoples, Indians, rural communities, ended up sounding more patronizing than 131
peasants, ethnicity, development and legal plu- ‘indigenous’, but this is also evolving in the polit-
rality. Only by clarifying them can we propose a ical language of Andean communities. Moreover,
productive debate leading to transformation of since the administration of President Alejandro
the current legal framework. In addition to Toledo (2001-2006) has embraced the indigenous
addressing these issues, this article concludes cause (e.g. Declaration of Machu Picchu, creation
with an overview of current constitutional and of CONAPA [National Commission of Andean,
international norms that illustrate particular Amazonian and Afro-Peruvian Peoples]), it is to
orientations and constraints, as well as potential be expected that the Andean population will
for supporting indigenous and peasant demands. also process their demands by affirming their
indigenous nature.
The reasons for revitalizing this concept are mul-

tiple. The first is the ethnic revival, experienced as
‘Indigenous peoples’ a backlash against neoliberal globalisation (Falk,
1998; Favre, 1998). The second is the re-valuing of
and ‘Indians’ ethnic differences after decades of assimilation
and integration policies that have caused only
Since the early 20th century, scholars have used frustration and dismay. The third is political advo-
different viewpoints to analyse Andean reality. cacy of indigenous identity to get government
Whereas the term ‘peasant’ (campesino) is a funding (Appadurai, 1997) and support from
socio-economic category often used by anthro- national and international development agen-
pology and rural sociology of Marxist inspiration, cies (e.g. to qualify for poverty relief programs).
the term ‘indigenous’ is an ethnic, cultural cate- The fourth is the assertion of an ‘exotic other-
gory coined by indigenous and culturally-inclined ness’ that would make its mark in national and
anthropology. This fundamental difference in international images of Peru, to appeal to
the way of categorizing the anthropological tourists and their money. Finally, one very impor-
tant reason is the possibility of grounding local tion is forecast as a function of the feasibility of
discourse and demands in the headway made in continuing to practice the cultural patterns that
international indigenous law and domestic law. are considered essential. This position flows from
International forums such as the ILO, the UN, and structural-functionalist theory favouring the
the OAS are lending their ear, albeit selectively study of internal homogeneity and equilibrium,
and with a certain distance, to indigenous while providing a very solid ideological and polit-
demands, and beginning to enact them in inter- ical foundation for the indigenous movement
national treaties, conventions or declarations and national and international activists engaged
that then become incorporated into national in promoting indigenous peoples’ rights.
laws. When they achieve normative status, these
provisions may be wielded by the indigenous as The second is the school of ‘resistance’. Here it is
support for their rights vis-à-vis the State and postulated that indigenous identity is an out-
third parties. growth of historical evolution and various cul-
tural, social and political encounters experienced
To advocate recognition of indigenous and small- by the indigenous peoples over history (pre-colo-
farmer rights to water, it will be necessary to nial, colonial, post-independence). The current
analyse both the anthropology implicit in the official situation and identity is, accordingly, the out-
outlook and the different theoretical currents of come of the struggles against territorial depriva-
Andean anthropology that have addressed tion, cultural assimilation, social marginalisation,
‘indigenous’ affairs. ethnic degradation and impoverishment of abo-
riginal societies affected by external or internal
The legal definition of ‘indigenous peoples’ and colonialism. In this context, indigenous identity is
‘indigenous’ in effect in Peru since 1995, when fluid, relational and flexible, because it con-
the International Labour Organization (ILO) denses as a function of the constant re-defini-
Convention 169 On Indigenous and Tribal tions and re-inventions that peoples must make
132 Peoples in Independent Countries was approved to resist and adapt to external pressures.
and ratified, states that indigenous peoples are
those who descend from population groups who This school emphasizes that pressure and influ-
lived in the country at the time of the Conquest ence by outside forces may be of such magnitude
or the establishment of current borders, and who that contemporary indigenous societies are not
have preserved all or part of their own social, necessarily much like their predecessors, because
economic, cultural and political institutions. they have incorporated different socio-cultural
Additionally, a fundamental criterion to deter- forms over time, which have transformed them
mine indigenous affiliation, and the domain for completely (e.g. the Catholic religion, local
application of the Convention, is awareness of cabildo governing boards, literacy, law). Thus,
ethnic identity, i.e. self-recognition. the identity of the indigenous peoples is not
defined by the presence of immutable essences
As for theoretical currents, there are two major or historical links to a primordial past, but by the
schools of thought on indigenous identity (Field, dynamics of resistance and adaptation that they
1994; see Degregori, 2000). The first is the school have developed under a position of ethnic subor-
of ‘cultural survival’, which emphasizes the pri- dination and social exclusion.
mary or essential traits of the groups studied.
These attributes are spatially and culturally dis- Within this perspective, ‘Indians’ are, in fact, a
tributed, discretely and distinctively compared to colonial and governmental creation. Without
other groups. Language, political organization, both referents, there would be no ‘Indians’ or
ritual, religion or ways of adapting to the envi- indigenous or peasant communities. Indians and
ronment are markers that set and typify the communities are not the vestiges of isolated
group’s identity and become essential elements native societies, suspended in time, but the
to define ‘indigenous’ lifestyles. From this stand- result of historical processes of resistance to
point, the degree of ‘Indian-ness’ is measured by exclusion, subordination and incorporation into a
the nearness or distance from the identified greater political economy (colonial, national,
parameters, and the group’s survival or assimila- international). The autochtonous peoples would
not have been ‘indigenous’ and would have had nation (and resistance to it) have produced many
their own historical discourse, were it not for cen- hundreds of small, community-sized ‘ethnic
turies of struggles against the dominant invasive groups,’ centreed on ‘county seats,’ i.e. towns into
society. which pre-Columbian populations were forced to
settle. Within these rural towns, ‘Indians’ (as they
As already mentioned, another way to approach are called, deceptively, by city folks) generally
rural Andean societies comes from materialistic define themselves as members of a local group,
anthropology. This trend of analysis is not ethnic- co-terminous with town-territory, and beyond it,
cultural but socio-economic. The advantage of as citizens of the province and department
this approach is that it emphasizes the relational defined by the nation-state to which they also
nature of categories such as ‘peasant’ and ‘rural belong” (1991: 95-96).
community’. The disadvantage is that, in most
cases, the specific features of ethnic and cultural Based on this observation, Gelles proposes an
phenomena tend to be lost in materialistic, eco- ‘emic’ concept of ethnicity emerging from the
nomic and social categories. propitiatory ritual practices that a social group
(people, community) performs to link up with
In any event, the theoretical and political prob- their sacred universe of guardian mountains and
lem lies in determining the best way to approach waters. The important element of his proposal is
this radical other-ness (we / them) that has marked that the play of ethnic identities is not reduced to
the history of Peru and the Andean countries, in a differential use of such categories as ‘Indian’,
order to design public policies and institutions ‘cholo’, ‘mestizo / misti’ or ‘criollo’ but is enriched
that are truly inclusive and equitable. by the countless ‘pacts’ between population
groups and their local deities (e.g. apus, cabildos).
In turn, Andean peoples and communities as a
whole are differentiated from the rest of society
because they share this belief system: “Because of 133
Identity, ethnicity the ways that Andean religion and ritual practice
atomise power among thousands of mountains,
and multi-cultural policies(3) each of which has a subject population depend-
ent on it (and a patron saint) for fertility and pros-
Cultural groups and societies invent different perity, there is an almost endless differentiation
ways to symbolize reality and distinguish them- of ethnic identity among social groups in the
selves from ‘others’. By so doing, they assemble an Andes. [It] is the shared conviction that moun-
ethnic identity characterized by self-acceptance tains and the earth possess spiritual properties
or self-recognition and membership of certain which, among other things (e.g. language, dress,
groups. In this dynamic, identities do not express diet), differentiate indigenous peoples from
primary bonds (‘the Andean essence’) but mistis and mainstream criollo society, a society
emerge from ethno-political processes of inter- that denies the validity of these Andean cultural
group differentiation. The dichotomy between orientations” (Gelles, 2000: 44-55).
own and other is based on ethnic markers formu-
lated to play the game of identities. These mark- Both authors emphasize that Andean identities
ers may be customs, occupation, forms of politi- are particular and local, which makes the concept
cal organization, language, geographical origin of ‘indigenous’ questionable, to refer to such dif-
or so-called ‘racial’ differences among groups. ferentiated, fragmented local identities. Is there
‘Andean’ or ‘indigenous’ ethnic identity, or are
The game of local identities and the historical and these processes of ‘micro-ethnogenesis’ emptying
cultural assembly of Andean ethnicity (ethnogen- the concept of ‘ethnicity’ of all contents? What is
esis) are examined, among others, by Abercrombie the impact of local ethnic focus and loyalty to local
(1991) and Gelles (2000). Abercrombie emphasizes identities on the community’s self-recognition as
the role of colonial and neocolonial historical ‘indigenous’ and on the Peruvian indigenous
experience in giving form to Andean identities: movement? If we assume that self-recognition is
“In the Andean case, centuries of colonial domi- a fundamental requirement in order to qualify as
an indigenous person then it is hard to accept anthropologist John Comaroff (1992: 54) describes
that because of the theoretical need to classify it, ethnicity originates in the asymmetrical incor-
human groups, we attribute that status to people poration of structurally differentiated groups
who do not assume it explicitly. Despite these into a given political economy.
theoretical and political issues with the category
of ‘indigenous’, Gelles does feel that it should be In the contemporary world, the structural
used as a broad label for the diversity that he asymmetries of ethnicity are expressed in multi-
himself documents: “The fact is that millions of cultural scenarios with diverse roots and direc-
Quechua-, Aymara-, and Spanish-speaking tions. They may be the outgrowth of colonial
indigenous peoples living in the highlands of experience or of a subsequent process of internal
Ecuador, Peru, and Bolivia, while participating in colonialism (Stavenhagen, 1990). They also come
diverse social and cultural worlds, also have similar from modernizing, liberal or socialist national
beliefs and ritual practices that are distinctly projects, that collide with the resistance, vitality
Andean and are tied to fundamental notions of and heterogeneity of the different cultural
community and ethnic identity. These beliefs and groups that they meant to homogenize (e.g.
practices, forged in a colonial context and today Latin American countries, former Soviet block). In
ignored or denigrated by dominant cultural this situation, Mexico has been the first Latin
discourses and policy-making in the Andean American country to acknowledge the limits of
nations, are fundamental components of local integration and postulate a policy of ‘ethnic
systems of agricultural and pastoral production” management’ (Favre, 1998: 142). Other causes of
(2000: 11-12). multi-culturality are trans-national migratory
flows, which have completely changed the ethnic
Following Gelles, ethnicity in the Andes goes and cultural make-up of vast regions of the
beyond the Indian-white dichotomy and is planet, driven by globalisation (e.g. north-
fleshed out by the multiplicity of local indige- Atlantic countries) (Kottak, 1997; Kymlicka, 1995;
134 nous identities. Both extremes are sources of con- Giusti, 1999).
flict (i.e. inter-community conflicts). In general,
the common denominator in ethnic conflicts is Under the label of multi-culturalism, there are
that accentuating identities and differences various political currents, not all truly counter-
hardens boundaries between groups, bolsters hegemonic, but rather paving the way to politi-
internal solidarity vis-à-vis the ‘other’ and denies cal subordination of indigenous peoples. That
the possibilities for intercultural understanding. was the case of the ‘Republics of Indians and
This produces a spiral of symbolic and physical Spaniards’ in the Andes, where cultural differ-
violence that may reach extremes, from discrimi- ences were used to set up a hierarchical, exclud-
nation and prejudice to persecution and ‘ethnic ing, segregated colonial order. In the case of
cleansing’. Thus, it is fundamental to imagine structural State reform in Latin America and
and construct sensitive, sensible policies on diver- Africa, multi-culturalism acquires a distinctive
sity, reinforcing cultural communities’ autonomy connotation. The aim is for the new neoliberal
and proposing ‘more sophisticated forms of State to stop providing the public goods and
political co-existence among cultures, forms services that the development-oriented or inter-
respecting pluralism and the identity of universes vening State attempted to give the public, and
in conflict’(4). generate geographical and political fragments,
to guarantee “indirect control at the lowest pos-
In general, ethnic conflict does not entail a sim- sible cost over population groups and territories
ple dispute over the imposition of a system of col- that it can no longer directly administer” (Favre,
lective representations, for the supremacy of a 1998: 146). Favre distinguishes between integra-
primary identity or the affirmation of one world- tion of the indigenous under populistic govern-
view over another. The struggle also involves ments and the ideology of ‘Indianism’ promoted
control over or creation of an alternative political by neoliberalism, observing that the margins of
opening (e.g. state, autonomous region) or autonomy achieved do not transform the nature
reconfiguration of economic and social power of the State, but just relieve it of obligations. For
relations among the ethnic groups involved. As example, “the people bequeathed these territo-
ries must make sure that law and order reign present-day ‘common sense’ about multi-cultur-
there, and learn to live in their reservations with alism and ethnicity, to enrich the discussion
autonomy, that is, without any public services, about the changes we need to make in State
which have run dry” (ibid.). structure, in the nature of inter-ethnic relations
and in relations between State and community
Along with these neoliberal reforms, multi-cul- or State and indigenous peoples. This will mean
turalism acquires hegemonic properties, when devising counter-hegemonic forms of multi-cul-
official discourse on globalisation makes struc- turalism and inter-culturality that will be able to
tural differences and inequitable international soften the conceptual and institutional rigidity of
relations the subject of a cultural other-ness governmental law.
meant to be respected and acclaimed (Degregori,
2000: 58-59; Golte, 2000: 222). However, the
interesting thing is that multi-culturalism can
also be associated with the emergence of
counter-hegemonic discourse, since, as Giusti Rural communities in Peru
stresses, it is driven by the “process of de-legit-
imizing the western model of civilization” by In Peru, rural communities and Peruvian anthro-
rejecting ”the supposed moral, political or epis- pology maintain an “(almost) eternal love affair”
temological universalism of the liberal para- (Urrutia, 1992). This leads to over-concentration
digm” (1999: 222). on topics involving ‘peasants’ and their ‘commu-
nities’ (Monge, 1993). It is imperative to avoid
The problem for modern States, and Peru claims reducing rural society to the ‘peasant’ community,
to be one of them, is to balance the principle of to recover an overview of all stakeholders and
equality with that of respect for difference in a processes in the countryside, to pose – for instance
plural, open, democratic setting (Kymlicka, 1995; – the appropriate unit of analysis to study Andean
Kukathas, 1997). The old chimera of the national irrigation (for a discussion, see Guevara et al., 135
project must be left aside, to transform the ‘prob- 2002; Urteaga and Guevara, 2002). The core issue
lem’ of ethnic and cultural multiplicity into the is to determine what we mean by ‘peasant com-
pivot of a new way of organizing the State, munity’. Some authors question the existence of
upgrading from the ‘nation-state’ to the ‘multi- the ‘magma’ described in scholarly papers, and the
national’ or ‘pluri-ethnic’ State. This does not lack of ongoing, consistent reflection about this
entail creating a sealed compartment for each topic. Therefore, we do not have an adequate
culture, ethnic group or rural community identi- typology of communities and, paraphrasing the
fied by anthropological analysis. Rather, the idea title of a famous Peruvian novel, Urrutia concludes
is to affirm the identity of each, through intercul- that “we are actually not talking about ‘one but
tural dialogue. The fecund hybridisation pro- many communities” (1992: 11)(6).
duced by inter-ethnic contacts and by overcom-
ing one’s ingrown conceptual structures, can Mossbrucker is also skeptical, saying that “due to
reveal ‘our own solutions to new problems’ as the great variety of functions and contents that
the key to unleashing the emancipating poten- the community assumes in different peoples, a
tial of multi-culturalism (Golte 2000: 223; clear, single definition of its contents is not cur-
Degregori 2000: 59-61). This task will call for rently possible, nor would it make much sense”
refining the interpretative tools that will enable (1990: 100). Even so, he proposes a series of
us to ”meld horizons of meaning”(5). abstractions to orient specific research:
In the case of indigenous and peasant water • “It is an administrator of resources.

rights, it will be necessary for the dialogue with • It is an association of families who have the
the State to be informed by the political philoso- goal of utilizing resources placed under the
phy and theory of multi-cultural law. This will institution’s management.
make it possible to suitably underpin proposed • At present, when it exists, it is generally one
laws for recognition of customary practices and of the conditions for the rural people to
indigenous law. It will be important to go beyond belong, in order to be able to participate in
the market. The Peruvian government currently uses the defi-

• It is an instrument for rational problem- nition of rural communities given in Law 25656
solving for members. Explanations that see (General Law on Rural Communities, of 30-3-
irrational or purely spiritual motivations in 1987). There they are defined as public-interest
the community, such as clinging to traditions, organizations, with legal corporate status, com-
keeping the Andean culture alive, and so on prising families who live in and control certain
are not explanations; at least, not scientific territories, linked by ancestral, social, economic
ones” (Mossbrucker, 1990: 101). and cultural connections, expressed in communal
ownership of land, communal work, mutual
Golte (1992) presents a very interesting sugges- assistance, democratic governance and develop-
tion of approaching the problem from the stand- ment of multi-sectoral activities, geared toward
point of political practice and rural economics members’ self-realization and the country’s
versus the colonial and post-independence State. progress.
He, like Arguedas and Fuenzalida, maintains that
‘community’ is a juridical concept originating in Obviously, this definition is closer to the mythol-
colonial legislation to handle ‘ordinary Indians’. ogy woven by early 20 th century indigenous
This social aggregate had a differentiated politi- advocates than to current social science. There is
cal organization and acquired customary rights a similar mismatch between the image of the
to the land. This concept was picked up by early target population (e.g. community = co-opera-
20th century indigenous advocates in order to tive) for the military government’s agrarian
‘protect the indigenous race’ and, more impor- reform (1969) and scientific findings of the time
tantly, was selectively adopted by the rural peo- (Skar, 1997). Therefore, different theoretical and
ple themselves, eager to qualify for exceptions ethnographic approaches to Peruvian rural reality
and the State’s protection. “The fact that, over and the voices of social stakeholders themselves
the decades, many rural peoples found multiple, should inform the official vision. This task will
136 diverse reasons to seek coverage by this legisla- make it possible to overhaul public policy on
tion, including adaptation of certain norms for communities and Andean irrigation. Otherwise,
political and economic organization, does not the official law will once again fall for the
mean, however, that the social, political and eco- conceptual mirage.
nomic organization of the peoples actually had
the same basic features. This problem is central,
because social sciences in general have not chal-
lenged this concept: on the contrary, they have
described a huge variety of peoples as if they Development and
were really variants of a basic organization that
fits them all” (Golte, 1992: 17). Golte’s proposal construction of ‘peasants’ and
helps us understand that subordinated social
groups use State law to serve their own interests,
‘indigenous people’
beyond official intentions.
Intervention-oriented development projects often
Accordingly, it is no surprise that Skar finds that practise what is called ‘the fallacy of under-differ-
mistis (mestizo, non-indigenous, mixed-blood) entiation’, i.e. “the tendency to see ‘less-devel-
have manipulated the law on recognition of oped countries’ as more similar than they actually
communities to establish “their pseudo-commu- are,” ignoring cultural diversity and adopting a
nity under State protection” and that “ironically, uniform (often ethnocentric) approach for highly
although the law was made to benefit indige- different types of beneficiaries (Kottak, 1997:
nous communities, the newly-established com- 224). The Andean world is no exception.
munities were often neither communities nor
indigenous”. He reports that the population of Peasants and indigenous, as a synonym for
one community that had been recognized was ‘needy population groups,’ have often become
mainly black, whereas other communities were key categories for development projects that
apparently of Chinese descent (1997: 111). prove their legitimacy by proclaiming themselves
to be indispensable components for their well- control. The Kunas in Panama organized them-
being. ‘Developmentalists’ manufacture argu- selves to protect a forest and wildlife refuge in
ments that then become self-fulfilling through their indigenous reservation. Forming the
project implementation. These arguments Committee of Indigenous Peoples and
include assertions about the ‘target population’, Communities of the Bolivian East (CIDOB) was
classifying it and categorizing it so that it has the crucial to defending indigenous territory in that
characteristics that call for a particular interven- part of Bolivia. Both Amazon indigenous confed-
tion. The most common claims underlying devel- erations (AIDESEP, CONAP) and Peruvian rural
opment projects geared toward indigenous and confederations (e.g. CONACAMI, Confederation
rural peoples consider, for instance, that ‘the of Communities Affected by Mining) bear wit-
lifestyle of the indigenous peoples is materially ness to the protagonist role that indigenous and
inadequate’, that ‘integration will improve their rural folk are playing in the struggle to defend
quality of life’, that ‘interest by indigenous peo- their rights. Interestingly, instead of grounding
ples in new technology reflects their desire to their claims in images of themselves as the
become integrated’ and ‘progress is inevitable’ ‘needy population’, they base their demands
(Bodley, 1988: 3). These premises are the founda- fundamentally on concepts of autonomy and
tion for developmentalist interventions and for sovereignty over their resources; i.e. on the
thrusting the target population into an power to decide for themselves about the type
expanded political economy, justifying the loss of of development they want and need.
their local autonomy.
Any successful reworking of official laws on
However, there are ‘culturally compatible’ eco- indigenous and rural water rights, for example,
nomic development projects that support locally- will require overcoming classical moulds of
perceived needs for change, that are culturally participation and the discussion of proposals
appropriate in design and practice (Kottak, prepared by the interested parties themselves.
1997). The problem is that, in their eagerness 137
to support vulnerable groups, they often make
the same mistake, defining these groups as
‘traditional’, isolated, autarkic entities, when in
practice they have been relating with other State law, social meaning of
groups of society for centuries. This tendency
includes projects based on cultural ecology, law, and legal plurality
which assume the existence of a harmonious
balance between the behaviour of societies and Revision of legislative policy on Andean irriga-
their adaptation to the environment. Following tion must take into account the ‘social life’ of
functionalistic logic, in which a change in any government legislation, i.e. what societal agents
element of the system leads to changes in the do with positive law. Beyond official desires and
rest, they criticize development projects with dictates, positive law acquires a constellation of
‘westernising’ technological aspects that modify social meanings that can be appreciated only
or attempt to modify the cultural patterns of when one abandons classical instrumentalism
societal groups. By so doing, they conceive of and pays attention to the social function that
these groups as pristine, idealized entities that State norms acquire (Griffiths, 1992).
maintain their cultural characteristics and ecolo-
gical equilibrium. They often also forget, in their The problem is that the instrumental vision of
purism, that the indigenous and rural peoples law is widespread. It is shared by State represen-
themselves are often the ones who exhaust their tatives, development agents, classic legal sociol-
own resources by using them unsustainably. ogy and people’s ‘common sense’. This ideology
believes in the transforming power of law. It
To cope with external interventions into their assumes that the law is a privileged instrument
culture, organization and environment, some for inducing and making social changes (e.g.
indigenous peoples have mobilized themselves, agrarian, labour or judicial reform laws).
attempting to regain the initiative and take
This instrumental vision of law makes a series of The State, for rural communities and indigenous
assumptions. The first is that the State, society and peoples, is not a consistent, self-regulated entity
the law are autonomous systems, but mechani- that impartially regulates the life of society. It
cally related. The second is that society and indi- acquires its physiognomy in terms of local condi-
viduals respond directly and automatically to gov- tions and the political deals that officials make
ernmental norms. The third is that the law is the with local power brokers. The supposed autonomy
privileged ‘voice’ of the modern State. The State of the State and impartiality of authorities repre-
speaks, preaches and commands – even itself – in senting it become radically different in day-to-day
legal terms and ways (not in moral, philosophical political practice: “Just as the state is not a single
or religious terms; Benda-Beckmann, 1989). The monolithic entity but made up of individuals and
fourth assumption is that communication semi-autonomous groups vying for resources and
between the State and Society is perfect. The fifth institutional survival, so too the state’s policies and
is that positive-law norms are justified self-refer- organizational models will be refigured at the local
entially if issued following the formalities of their level” (Gelles, 2000: 174, note 6).
own system. Finally, instrumentalism assumes the
State’s normative monopoly. On the basis of these To analyse the water rights of indigenous and
assumptions, it is postulated that legal changes peasant population groups within and versus a
produce social changes according to the parame- positive-law framework, the theory of pluralism
ters established in public policy and are positive. It will be quite useful. Legal pluralism assumes the
is also postulated that law is a rational system for harmonious or conflicting co-existence of more
planning and ‘social engineering’. than one legal order in a single geopolitical set-
ting(7). This concept has opposed the notion of
However, law is not a rational system for planning ‘legal centralism’, which maintains that the only
and designing societal life. It is a cultural phenom- body able to create law is the State (Griffiths,
enon and a social product, constructed by social 1986). On the contrary, many researchers have
138 and governmental agents who ply their strategies shown that both creation of norms and adminis-
using reasoning and the available legal tools. Law tration of justice are not exclusively State func-
prescribes, proscribes and also re-creates social tions, but are produced in multiple social domains.
reality. Moreover, in a context of legal plurality,
governmental norms acquire meaning as they are Law is not only a normative system with coercive
interpreted, enforced and manipulated in societal capacity, but is above all an exercise of social
settings. The important thing is not to see imagination, a cultural construction for political
whether they were enforced as the legislator purposes (Santos, 1995) whose changes are con-
intended, but to determine what role they play in ditioned by its historical context. Additionally, it
a pre-existing social and legal constellation. is crucial to remember that, in terms of power
relationships and margins of autonomy, local
It is also very important to understand how the legal and social orders have been incorporating
State is experienced and coped with locally. Local elements and concepts from other groups and
expressions of the State are a far cry from the the State (Gelles, 2000). The possibilities of repro-
theoretical self-portrayal (i.e. the Constitution) ducing customary law lie precisely in the perme-
which emphasises the normative hierarchy, ability and adaptability arising from its semi-
bureaucratic specialization of functions and autonomous nature.
neatly-established lines of command. As Urban
and Sherzer put it: “From the point of view of In this context, law is seen as an instrument at the
native peoples, states do not appear to be service of human behaviour, and is used accord-
monolithic or goal-driven, but rather heteroge- ing to people’s needs. Individuals make changes
neous and random, guided by impenetrable and to legal systems. For example, the quest for jus-
changing motives (…) The state is heteroge- tice is not restricted to a single legal jurisdiction,
neous, composed of different and conflicting but is carried out by what has been called ‘forum
factions, intertwined with local power groups” shopping’ (in the classic formulation by K. von
(1991: 12). Benda Beckmann).
Current law and the various strategies wielded of all, it restricts the State’s entrepreneurial activ-
by societal agents are the clearest expressions of ity to a minimum and secondly it defines renew-
the legal hybridisation process developed by able and non-renewable natural resources as the
rural communities to cope with their changing Nation’s heritage, over which the State has sover-
political and social contexts. eign control. ‘The organizational law sets the
conditions for its utilisation and its granting to
private parties. A concession grants its bearer
real rights, subject to those legal norms (Article
66). Developing the constitutional mandate, the
Official neoliberal legislation organizational law for natural resource usage
clarifies that this State sovereignty ‘becomes the
and indigenous and jurisdiction to legislate and exercise executive
and judicial functions over them’ and the power
smallholder rights to grant ‘rights for sustainable utilisation’ (Law
No. 26821 of 1997, Articles 6 and 19).
Peruvian laws on natural resources and water
deny, ignore or, at best, very restrictedly recognize These norms aim to foster an active policy of con-
the validity of indigenous and small-farmer rights. cessions to the private sector and prevent the
This slant has been reinforced over the past State from getting directly involved in natural
decade, in which the concept of economics and resource usage. Accordingly, the national and
the State changed, reversing the polarity of tradi- foreign business sector has to finance and
tional Latin American nationalism. Liberalization develop investment and utilisation projects.
of the economy and the consequent need to Pursuant to these provisions, the draft water law
adapt the State’s role to these processes took form prepared by a commission under the Presidency
during the successive governments of former and in 2001, for example, empowered public admin-
now fugitive President Fujimori (1990-2000). In istration to grant water concessions as real rights, 139
ideological terms, this economic liberalization has whereas the new proposal in 2003(8) specifies that
attempted to reinforce the concept of State sover- water concessions will be categorized as adminis-
eignty over natural resources. For some resources trative real rights (Del Castillo, 2001).
such as minerals, the Republic had eminent
domain, reproducing the Spanish colonial royal- Although the current proposal specifies the cov-
ties system. But for others such as water, this erage of the real right granted(9), there is a prob-
national control took much longer. For instance, it lem with these approaches, namely, what hap-
was only in 1969 that the military reform govern- pens with societal groups who have owned and
ment nationalized water resources. In the recent used resources ancestrally? Is it enough to
wave of neoliberal reforms, the State has reaf- declare that ancestral rights of rural communities
firmed its monopoly over natural resources on will be recognized and respected? What is the
behalf of the Nation and assumed the power of scope of the term ‘ancestral rights’ of indigenous
distributing them (e.g. through concessions, or and smallholder communities? Since the norm is
transfers). The aim is not to use resources directly designed for economic agents who have financ-
through public enterprises, but to tender them ing, in practice this will tend to displace Andean
to investors, promote national and foreign peoples and communities from the customary
investment, and generate fiscal revenues. Under rights that they had prior to enacting the norm.
this arrangement, the neoliberal State proclaims In sum, the norm will create an implicit social
eminent domain over resources to provide legal hierarchy based on business capacity and the pos-
security to concessionaires who receive usage sibility of providing revenues for the State itself.
rights.
The social and economic engineering required to

develop this model assumes proper management
of laws. One of the first legal instruments to take
this orientation was the 1993 Constitution. First
With this same approach, the law for utilisation tees; see Del Castillo, 2001; Rebosio, 2001). The
of natural resources (mentioned above) stipu- issue in this national debate is precisely the
lates, for example, that rural communities and degree to which water law will be bent toward
local population groups may use ‘natural liberal postulates, what role the State will play in
resources freely accessible in the environment water management (overseeing, arbitration,
adjacent to their land’ for ritual and subsistence neutral), what room for local autonomy will be
purposes but ‘without exclusive right’ and ‘pro- acceptable for sustainable water management,
viding that there are no exclusive or excluding and how equitable, efficient water distribution
third-party rights or reservation for the State’. It can be encouraged (e.g. the electronic confer-
also states that local utilisation ‘cannot be ence on water law, Del Castillo, 2001).
claimed against third parties, registered, or
demanded’ and that it concludes when the
State grants the resource to other parties.
Communities have preference to use resources
located within their own land providing that The status of indigenous
the State has not reserved them for itself or
granted them via concessions. Although the rights in the Peruvian
1993 Constitution recognizes the power of rural
and native communities to administer justice
constitution and legal system
according to their own customary law, the norm Peru’s 1993 constitution recognizes – in Article
does not recognize the validity of customary 2(19) – that all persons are entitled to their ethnic,
law to define, enjoy or exclude third parties cultural identity. On the basis of this principle, the
from utilizing those resources. State recognizes and protects the nation’s ethnic
and cultural plurality. It also declares that Quechua,
Obviously, ‘what was written with the right hand Aymara and other native languages are official in
140 has been erased with the left hand’. That is, there addition to Spanish, in areas where they predomi-
is no recognition or effective legislative protec- nate (Article 48). These individual rights have their
tion to enforce ‘community jurisdiction’ or local collective correlation in Article 89, which obliges
rights over resources they control. The right that the State to respect rural and native communities’
has been granted is frail, subject to revocation cultural and ethnic identity. That article also recog-
whenever the State or third parties activate offi- nizes communities’ legal existence and corporate-
cial mechanisms to appropriate or exploit those body status and stipulates that they are
resources. Although it does produce the ‘legal autonomous in their social, economic and adminis-
security’ longed for by investors (e.g. mining trative organization, in communal work and in
companies) and paves the way for infrastructure freedom to distribute their land.
development projects, the other side of the coin
is the social and legal insecurity for local people In Article 88, the State guarantees the right to
(from the standpoint of customary allocation of own land privately or communally. However,
access and usage rights). unlike the above constitutional provisions, com-
munal ownership of land is only non-transferable,
In the specific case of water, the market has not having lost the protection against seizure and
yet been liberalized, because the law in effect transfer granted by the 1933 and 1979 constitu-
dates back to 1969, and is eminently public-sector tions. Furthermore, this non-transferability has
– and State-oriented. It is used by many rural been curtailed by stipulating that communities
society sectors to oppose full privatisation of can lose their land through legal abandonment.
water. However, the numerous proposals drafted Such abandonment happens when, according to
since 1993 have aimed to fit this special law into Legislative Decree No. 653 of 1991, “the owner
the current constitutional framework, arguing has left the land uncultivated for two consecu-
that water management must be freed of tive years”. In this case, land becomes public
bureaucratic stumbling-blocks, and local man- domain and is put up for sale. The reduction of
agement organizations must be granted greater constitutional protection aims to incorporate
autonomy (e.g. users’ boards, irrigators’ commit- communal land into the market economy(10).
In the administration of justice, the Constitution tions, constituted by individuals and oriented
has innovated by recognizing the authorities of toward the purposes of optimal utilisation of
rural and native communities as empowered to their property, for general, equitable benefit of
exercise judicial functions within their territories, community members, promoting their inte-
applying customary law as long as they do not grated development. They are regulated by spe-
violate fundamental human rights (Article 149). cial legislation”.
Finally, the amendment of Chapter 14 on decen-
tralization, regions and municipalities includes However, this recognition is subject to a series of
norms to promote the right to political participa- conditions that the Code itself establishes in the
tion (Article 2.17) for native communities and following articles:
‘original peoples’(11) in membership of regional
and municipal councils(12). “For communities to exist legally, in addition to
filing for registration, they must be officially rec-
In the field of international law applicable to ognized” (Article 135).
indigenous peoples, the most important treaty
ratified by Peru is the International Labour “The Executive Branch regulates the status of
Organization Convention 169 on Indigenous and communities, ensuring their economic and
Tribal Peoples in Independent Countries. The administrative autonomy, as well as their mem-
Convention has been in force since February 2nd bers’ rights and obligations and other norms for
1995(13). As indicated in the first section, the their recognition, registration, organization and
Convention stipulates who qualifies under the operation” (Article 137).
legal definition of ‘indigenous peoples’ and
‘indigenous’ (Article 1. 1.b.2). Evidently, the apparently full recognition by the
1993 Constitution (rural communities’ legal exis-
Regarding indigenous rights and the environment, tence and corporate-body status) collides with
Peru has signed the most important documents the Civil Code barriers that impose the require- 141
from the Earth Summit (Rio de Janeiro, 1992). ments of official registration and recognition by
Whereas the Rio Declaration is legally binding, administrative agencies. Furthermore, although
Agenda 21 is not, and is an example of ‘soft law’ the Constitution could be construed to override,
because it sets principles that are only morally being the highest-ranking norm, in daily legal
binding on States. In general, the need is recog- practice communities can operate successfully
nized for indigenous peoples to participate in poli- only when they accredit their official registration
cies ensuring sustainable development (Principle and recognition.
21). Agenda 21 devotes a chapter to the role of
indigenous peoples, recognizing their wealth of The General Law on Rural Communities, Article 2,
traditional knowledge regarding natural resources defines them as “public-interest organizations
and environmental management. It recommends with legal existence and corporate-body status,
for States to foster the resolution of conflicts of comprising families who inhabit and control cer-
land and resource use and to protect traditional tain territories, linked by ancestral, social, eco-
knowledge. It also recommends ensuring the par- nomic and cultural connections, expressed in the
ticipation of indigenous peoples in the design of communal ownership of land, communal work,
environmental laws and policies that affect them. mutual assistance, democratic governance, and
development of multi-sectoral activities…”
In domestic law, the legal definition of rural com-
munities and community members is crucial To obtain official recognition and registration of
when determining the enforcement of special their legal status, the regulations of the General
legislation. The most important laws are the 1984 Law on Rural Communities (Supreme Decree 008-
Code of Civil Procedure and the General Law on 91-TR) establish that communities must have
Rural Communities, No. 24656 of 1987. Article their territory in their possession, feature the
134, in the book on corporate bodies, of the characteristics defined in Article 2 above, and
Code states that: “Rural and native communities have the consensus of at least two thirds of their
are traditional, stable public-interest organiza- members to begin the procedure. Additionally,
to obtain title to their territory, communities Along these lines, the Organizational Law for
must present a series of proofs as evidence of Sustainable Use of Natural Resources mentioned
their ownership. In fact, Law 24657 on the title above (Law 26821 of 26-6-1997), for example,
and boundaries of rural community territory defines water as a natural resource and recog-
(1987) states that: “Communal territory com- nizes ancestral modes of natural resource use by
prises the community’s original land, land rural communities and local population groups.
acquired according to common and agrarian law, Unfortunately, as we have seen, it then imposes
and land awarded for agrarian reform purposes. the State’s eminent domain to grant manage-
Original land includes: what the community has ment of these resources, thus favouring govern-
possessed, including land not being used, and mental rights (e.g. concessions).
that land indicated in their titles” (Article 2).
Additionally, Article 18 ratifies liberal thinking by
On belonging to the community, Article 5 of Law stating that “Rural and native communities have
24656 distinguishes between members and qual- preference in sustainable use of natural
ified members. The former are born in the com- resources on their land, to which they have due
munity, offspring of community members and title, except for the State’s express reservation or
people integrated into the community. They can exclusive or excluding rights of third parties”. This
be integrated by establishing a stable couple clear pre-eminence of rights issued by the State
with a community member or when a person of contradicts the provisions of ILO Convention 169,
legal age applies to the general assembly to be by failing to respect participation by and consul-
admitted as a member. Qualified members are tation with indigenous peoples affected by use
those of legal age (or acquired civil capacity), liv- of natural resources located in their territories
ing in the community for over five years, not (Articles 15.1, 15.2, 13 and 14).
belonging to any other community, and regis-
tered in the community roster. Additionally, each Environmental law – gathered into the Environ-
142 community’s by-laws can establish further mental Code in effect since 1990 (Legislative
requirements, besides those of the Law. Decree 613) but emasculated by the government
that enacted it, because the headway it made
For proper natural resource management, ”increased the cost of doing business” – extends
Convention 169 prescribes that the State must recognition of rural communities’ rights in natu-
recognize and protect indigenous peoples’ land ral protected areas: ”The State recognizes rural
and habitat because they are essential for their and ancestral native communities’ right to own
material and cultural reproduction. It must also land that they possess within protected natural
oversee indigenous peoples’ rights to natural areas and their zones of influence; [and] pro-
resources within their territories. These “rights motes participation by such communities for the
include peoples’ right to take part in using, purposes and aims of protected natural areas
administering and conserving such resources” where they are located” (Article 54).
(Art. 15.1). However, in royalty-based systems
such as Peru’s, which attribute ownership of In an apparent play on words, the environmental
underground minerals and resources to the code introduces the category of ‘cultural natural
State, indigenous peoples’ rights to participation heritage’, as “all archaeological or historical con-
and consultation in decisions about using these structions that, being integrated into the envi-
resources are clearly restricted (Art. 15.2). ronment, make rational, sustained use possible”
(Article 59). It states that areas containing them
Regarding identity and use of natural resources, cannot be claimed for agricultural, mining, or
Peruvian law states that “the State respects and such purposes, and that “areas where there are
protects the community’s uses, customs and tra- terraces, canals, aqueducts or any construction of
ditions [and] fosters the development of their an archaeological or historic nature shall be
cultural identity”; and that the community is excluded from any concession” (Article 61). Since
obliged to ”defend ecological equilibrium, these articles on cultural natural heritage match
preservation and rational use of natural the definition of the elements constituting
resources” (Arts. 1.d and 3.e, Law 24656 of 1987). human settlements in general (Article 80,
Environmental Code), we find that a fundamen- in the respective roster to be able to use water
tal element in these settlements, in addition to and pay the water fees by unit of volume”(Article
the soils, water, natural resources and atmos- 59, Leg. Dec. 653).
phere making them possible, is “the economic
and social infrastructure that shapes organiza- These norms make no direct reference, either, to
tion and conditioning of space”. rural communities, but it follows that communi-
ties must organize an irrigators’ commission in
Since indigenous peoples, local population order to join the respective users’ board. To
groups and rural communities form human set- have full rights to participate in the irrigation
tlements, these provisions could be used to system, this commission must be recognized by
affirm their rights to control the cultural natural the administrative ruling of the Technical
resources that they manage (e.g. canals, terraces) Administrator of the Irrigation District (Article 4,
and to exclude third parties who attempt to gain Supreme Decree 057-2001-AG; Legislative Decree
concessions over them. These articles could also 653, Article 60). Comparing this norm with the
be used to defend and assert their customary provisions of the regulations of the General Law
ways of using resources, because this organiza- on Rural Communities (Supreme Decree 008-91-
tion is, per se, a constitutive element of their TR of 1991), we see that communities materialize
human settlements, i.e. part of the “economic this participation by setting up a specialised irri-
and social infrastructure that shapes organiza- gation committee.
tion and conditioning of space”.
The law has granted preference to communities
The General Law on Water in effect (Decree Law who decide to use mineral / medicinal water
17752 of 1969) makes no mention whatsoever of located in their territory for tourism. In this case,
rural and native communities’ rights to manage they can set up a specialised committee and the
their water resources. What we do find is uni- regulations of Law 25533 establish that the
form, abstract treatment for all those who use Ministry of Industry, Tourism and Integration is 143
water for agrarian and non-agrarian purposes, responsible for granting the usage license. If the
whom the Law terms, in general, ‘users’ (Article rural communities decide not to take advantage
12). Article 136 of the Law establishes that water of this possibility, the concessionaire must obtain
users in each irrigation district must organize explicit community authorisation before the
into Users’ Boards and Irrigators’ Commissions State will grant the concession.
for each Irrigation District Sector. Current regula-
tions for this Law have no explicit reference, In general, Peruvian norms recognize indigenous
either, to rural communities’ rights. peoples’ and rural communities’ territorial rights
by subjecting them to a series of requirements,
Legislative Decree 653 (Law to Promote Agrarian such as registration of their land, providing con-
Investments) and its regulations maintain the tinual possession of it, and maintaining traditional
concepts of users, users’ board and irrigators’ forms of social organization. The problem they
commissions, which are also present in Supreme face, pursuant to the Constitution, the Civil Code
Decrees 047-2001-AG and 057-2001-AG, which and Legislative Decree 653, is that their land can
establish the current regulations for water user be declared legally abandoned when they fail to
organizations (Articles 1 and 2). The first norm occupy and work the land for two consecutive
defines the Irrigation District as “the continual, years. Undoubtedly, this possibility places
geographical area, comprising one or more indigenous peoples and communities in a very
watersheds, sub-watersheds or part thereof, in fragile position, because it is well known that, in
the jurisdiction where the Technical Irrigation Andean and Amazon ecosystems, land may be
Administrator has authority to enforce the left fallow for longer than this legal limit.
General Law of Water”. It also orders that: ”Water Moreover, the Law considers that all unused
users in each Irrigation District shall mandatorily land is State property, which makes it urgently
organize into Irrigators’ Commissions for each necessary to obtain communal title to land,
irrigation sector or subsector and a Users’ Board because the legal presumption assumes against
for each Irrigation District. They shall also register communities.
The Law not only recognizes rights to a given Conclusion

territory but includes the habitat traditionally
used by indigenous peoples (particularly, in the This overview shows how necessary it is to radically
Amazon region). This opens up possibilities to transform the relationship between peasant and
defend resources they use without necessarily indigenous peoples and the State. Not only must
having to be located within their delimited terri- strategies be designed for defence on the basis of
tory. As for uses, the Organizational Law for official laws, both national and international, but
Sustainable Use of Natural Resources recognizes above all a political mobilization must achieve
ancestral modes of natural resource use by rural the recognition and legal establishment of
communities and local population groups, but indigenous and peasant rights to control such
subject to the State’s eminent domain; the State vital resources as water.
may alter these uses and grant them via conces-
sions. It also subjects recognition of ancestral
modes of natural resource use to the condition
of respecting environmental protection norms.
In terms of water used for consumption, the

norms recognize no specific treatment for
indigenous rights. In general, they state that con-
sumption to meet primary needs requires no
administrative authorisation. Also, the State
must respect communities’ uses and customs and
consequently recognizes traditional modes of
natural resource usage. In theory, uses for con-
sumption by indigenous and small farmers must
144 abide by general water law.
In theory, the system of constitutional guaran-

tees, the constitutional nature of indigenous
rights and their establishment in international
treaties should help Andean communities and
farmers interested in having their customary
rights respected or preventing their fundamental
rights from being violated. They could apply to
the judicial authorities to demand respect and
affirmation of their rights (e.g. to ethnic identity,
community autonomy, ownership and the rights
provided for in ILO Convention 169). To achieve
this, they could take different actions, depending
on the nature of the threat or violation of their
rights, and could even activate international
human rights protection mechanisms (e.g. the
Inter-American Human Rights Protection System
of San José). In this way, they could force a sup-
portive action (against authorities who are
undermining their rights), a declaration of
unconstitutionality or class action (against laws
and decrees that violate the Constitution), or an
action of compliance (for the authorities to abide
by the norms).
(10) The 1984 Code of Civil Law states that “communities’

land may not be transferred, encumbered or seized” (Article
136) but the subsequent constitutional mandate has
ENDNOTES curtailed these features of communal property.
(1) Based on Guevara et al. (2002) and on Urteaga and
Guevara (2002). (11) Note that here a new term is introduced into Peruvian
(2) Skar remarks that “the term ‘Indian’ was forbidden, positive law. The juridical and social scope of the category of
under the pretext that the word ‘small farmer’ [or peasant] “original peoples” must be determined. According to
was more dignified… Because of strict use of the term ‘small CONAPA, the National Commission of Andean, Amazonian 145
farmer’, Indians are grouped into the Marxist economic class and Afro-Peruvian Peoples, “the term ‘indigenous’ includes
of peasants, and their cultural identity – what makes them and may be used as a synonym of ‘original’, ‘traditional’,
so different from the rest of the Peruvian population – ‘ethnic’, ‘ancestral’, ‘native’, or other such words” (Article 5
is discarded as something undesirable or unimportant”. of the proposed constitutional amendment presented to
(1997, 102-103). Congress on 17-4-02; in Congreso del Perú 2002, 59).
(3) Guevara-Gil 2001. (12) Law No. 27680 on Constitutional Amendment of

Chapter XIV, Title IV on Decentralisation (6-3-2002)
(4) Giusti 1999, 222. In the context of Latin American establishes that regional governments have political,
constitutional law, Clavero makes a truly advanced economic and administrative autonomy and comprise the
proposal (2000). President (executive branch), the Co-ordinating Council
(5) As Taylor puts it, “true value judgements assume the (consultative and co-ordinating branch), and the Regional
fusion of normative horizons, assuming that we have been Council (normative and oversight branch). The regional
transformed by studying the ‘other’, so that we do not judge council shall have no more than 25 members and is
according to only our familiar original norms” (1993, 104). empowered to “regulate activities and / or services regarding
(6) Enrique Congrains, No una, sino muchas muertes [Not agriculture (…), energy, mining (…) and the environment”
one, but many deaths] (Lima, 1957). (Article 192.7). The constitutional amendment involves a law
that will establish “minimum percentages to grant access for
(7) A summary of the main technical contributions in representation in terms of gender, native communities and
Guevara-Gil and Thome (1992). the original peoples on Regional Councils “. Law No. 27683
(8) Proposed Water Law, April 2003, drafted by the Multi- on regional elections (27-3-02) stipulates that the list of
Sectoral Technical Commission D.S. 122-2002-PCM. candidates for the regional council will comprise “no less
(9) According to the Proposal, “[…] the National Water than 30% men or women, and at least 15% representatives
Authority grants the titular holder the right to utilize water of native communities and original peoples of each region
[…]” (Article 45) and the titular holder may “use, enjoy, where they are located “ (Art. 12).
allocate and claim an annual allotment of the water (13) According to the Fourth and Last Transitional Provision
extracted” (Article 46); the concession can expire because of of the 1993 Constitution, constitutional norms and those of
“[…] c) failure to pay two consecutive quotas of the lower hierarchy must be interpreted according to the
economic retribution […] d) un-authorized change of the Universal Declaration on Human Rights and other
water utilisation activity; and e) when the titular holder has international treaties ratified by Peru dealing with
been penalized twice for the same water norm infraction, of fundamental rights and freedoms. Accordingly, ILO
a very serious nature, and has not complied with the orders Convention 169 has constitutional status, and informs
issued by the National Water Authority”. interpretation of all Peru’s juridical pyramid.
REFERENCE LIST Griffiths John, 1992, Legal Pluralism and the Social Working
Abercrombie Thomas, 1991, To Be Indian, To Be Bolivian: of Law. Bob Brouwer et al., eds., Coherence and Conflict in
‘Ethnic’ and ‘National’ Discourses of Identity. Greg Urban Law, pp 151-176. Kluwer Law and Taxation Publishers.
and Joel Sherzer, eds., Nation-States and Indians in Latin Deventer/Boston.
America, pp 95-130, University of Texas Press, Austin. Guevara Gil Armando et al, 2002, Estudio de la legislación
Appadurai Arjun, 1997, Modernity at Large. Cultural oficial peruana sobre la gestión indígena de los recursos
Dimensions of Globalisation. University of Minnesota Press, hídricos. Indigenous Water Rights, Local Water
Minneapolis. Management, and National Legislation. WALIR Studies,
Volume 2, Rutgerd Boelens (ed.), pp 101-131, Wageningen
Benda-Beckmann Franz von, 1989, Scape-goat and the
University and UN CEPAL / ECLAC, Wageningen.
Magic Charm: Law in Development Theory and Practice.
Journal of Legal Pluralism 28, pp 129-148. Kottak Conrad Phillip, 1997, Antropología cultural. Espejo
para la humanidad. McGraw-Hill, Madrid.
Bodley John, 1988, Tribal Peoples and Development Issues: A
Global Perspective. Mayfield Pub, Mountain View. Kukathas Chandran, 1997, Multiculturalism as Fairness.
The Journal of Political Philosophy 5(4), pp 406-427.
Boelens Rutgerd and Dávila Gloria, eds., 1998, Searching for
Equity. Concepts of Justice and Equity in C ommunity Kymlicka Will, 1995, Multicultural Citizenship. A Liberal
Irrigation. Van Gorcum, Assen. Theory of Minority Rights. Clarendon Press, Oxford.
(Ciudadanía multicultural. Barcelona: Paidos, 1996).
Castillo Laureano del., 2001, El largo camino hacia una ley
de aguas. Basic document for the electronic conference on Mayer Enrique, 1993, Recursos naturales, medio ambiente,
Water law: proposals from rural development. Lima, tecnología y desarrollo. Paper, Seminario Permanente de
September 12 to October 3, 2001. www.agualtiplano.net Investigación Agraria, Arequipa.
[revised 29-2-02] Monge Carlos, 1993, Transformaciones en la sociedad rural.
Comaroff John, 1992, Of Totemism and Ethnicity. John and Paper, Seminario Permanente de Investigación Agraria,
Jean Comaroff, Ethnography and the Historical Imagination, Arequipa.
pp 49-67. Westview Press, Boulder. Mossbrucker Harald, 1990, La economía campesina y el
Congreso de la República del Perú, 2002, Draft Proposal, concepto “comunidad”: un enfoque crítico. Instituto de
Law to Amend the Constitution. Constitution, By-laws and Estudios Peruanos, Lima.
Impeachments Commission Congreso de la República, Lima. International Labour Organization (ILO), 1992, Convenio 169
Degregori Carlos Iván, 2000, Panorama de la antropología sobre Pueblos Indígenas y Tribales en Países Independientes.
146 en el Perú: del estudio del Otro a la construcción de un OIT, Lima.
Nosotros diverso. C. I. Degregori, ed., No hay país más Pajuelo Ramón, 2000, Imágenes de la comunidad. Indígenas,
diverso, Compendio de antropología peruana, pp 20-73, campesinos y antropólogos en el Perú. Carlos Iván
Red para el desarrollo de las ciencias sociales, Lima. Degregori, ed., Nohay país más diverso, Compendio de
Falk Richard, 1998, The Decline of Citizenship in an Era of antropología peruana., pp 123-179, Red para el desarrollo
Globalisation. The Transnational Foundation for Peace and de las ciencias sociales, Lima.
Future Research, Lund. Peru 1993 Constitution. Fondo Editorial de la Pontificia
http://www.transnational.org/forum/meet/falk_citizen.html Universidad Católica del Perú [1995], Lima.
(20-1-02).
Rebosio Guillermo, 2001, Marco legal vigente para la
Favre Henri, 1998, El indigenismo. Fondo de Cultura gestión del agua. Reference document 3 for the electronic
Económica, Mexico DF. conference on Water law: proposals from rural
Field Les, 1994, Who are the Indians? Reconceptualizing development, Lima 12 September to 3 October 2001.
Indigenous Identity, Resistance, and the Role of Social www.agualtiplano.net [revised 29-2-02]
Science in Latin America. Latin American Research Review Santos Boaventura de Sousa, 1995, Toward a New Common
29(3), pp 237-248. Sense. Law, Science and Politics in the Paradigmatic
Gelles Paul, 2000, Water and Power in Highland Peru. The Transition. Routledge, New York, London.
Cultural Politics of Irrigation and Development. Rutgers Skar Harald, 1997, La gente del valle caliente. Dualidad y
University Press, New Brunswick. reforma agraria entre los runakuna (quechua hablantes) de
Giusti Miguel, 1999, Alas y raíces. Ensayos sobre ética y la sierra peruana. Fondo Editorial, Pontificia Universidad
modernidad. Fondo Editorial, Pontificia Universidad Católica Católica del Perú, Lima.
del Perú, Lima. Starn Orin, 1992, Antropología andina, ‘andinismo’ y
Golte Jurgen, 1992, El problema con las comunidades. Sendero Luminoso. Allpanchis 39, pp 15-71.
Debate Agrario 14, pp 17-22. Stavenhagen Rodolfo, 1990, The Ethnic Question. Conflicts,
Golte Jurgen, 2000, Economía, ecología, redes. Campo y Development, and Human Rights. The United Nations
ciudad en los análisis antropológicos. Carlos Iván Degregori, University, Tokyo.
ed., No hay país más diverso. Compendio de antropología Urban Greg and Sherzer Joel, 1991, Introduction: Indians,
peruana, pp 204-234. Red para el desarrollo de las ciencias Nation-States, and Culture. G. Urban and J. Sherzer, eds.,
sociales. Lima Nation-States and Indians in Latin America, pp 1-18,
University of Texas Press, Austin.
Urteaga Crovetto Patricia, Guevara-Gil Armando, 2002,

Legislación de recursos hídricos y derechos indígenas.
Propuesta de investigación para el caso del Perú. Water Law
and Indigenous Rights. The Research Proposals.
WALIR Phase 1, Volume 1, Rutgerd Boelens and Miguel
Solanes, co-ordinators, pp 24-54, Wageningen University
and UN CEPAL/ECLAC, Wageningen/Santiago, Chile.
Urrutia Jaime, 1992, Comunidades campesinas y
antropología: historia de un amor (casi) eterno. Debate
Agrario 14, pp 1-16.
147
WALIR
Water Law and Indigenous Rights
A comparative research and action programme focusing on peasant and indigenous water
rights and the legal and material discrimination of local water management forms:
In regions like the Andes, peasant and indigenous water management systems are the fundamental
basis 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 being
encroached upon, discriminated against and put under growing pressure. Consequently, millions of
indigenous water users are being marginalized. Moreover, they are usually not represented in national
and 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 out
to understand indigenous and customary rights and management forms and sheds light on how they
are legally and materially discriminated against and undermined.
An inter-institutional think-tank that critically informs the debates on indigenous and

customary rights to facilitate action of local, national and international platforms:
148 The WALIR initiative is a research and action programme that supports and deepens the debates
on indigenous and customary rights and their relevance to water legislation and policy, both to
facilitate 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 well
as support for the empowerment of marginalized water use sectors.
A research alliance that presents concepts, methodologies and contextual proposals

concerning 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 sustains
water 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 and
production strategies
• Productivity, efficiency and effectiveness of water use: productive and appropriate land and
water management as well as technical sustainability
• Security of water access: the ability to enforce water use rights now and in the future
• 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 and
advocacy, 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 the
cases 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: for
example, 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, WALIR
and its counterpart platforms implement a number of exchange, dissemination, capacity building
and advocacy activities on water legislation.
An endeavour joining committed, inter-disciplinary researchers, platforms and counterpart

organizations 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 149
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: Rutgerd.Boelens@wur.nl and www.eclac.cl/drni/proyectos/walir

Drying up lakes and wetlands, moving rivers to build hydropower

plants, polluting watersheds and ruining springs – these are government
decisions that have affected indigenous peoples and rural communities
150 in different states and regions of Mexico. This situation has not changed
during the government of President Vicente Fox, as shown by the dams
on the Usumacinta River.
Water management in indigenous regions is a complex issue. It is not
enough to ensure adequate flow to irrigate crops. Ecosystems must also be
protected. It is vital to regulate water cycles, for the survival of the people
living there. Government failure to keep its word in agreements with
Zapatismo 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 by
sewage in regions with indigenous populations and is the co-ordinator for Mexico of the Water Law
and Indigenous Rights programme, Wageningen-CEPAL/ECLAC.
frape@colsan.edu.mx
Indigenous communities in Mexico have often This article is divided into four sections. The first
had to defend the water resources they need to offers an overview of Mexico’s indigenous peoples
sustain their lifestyles and livelihoods. They have and their relationship with water resources. The
also had to cope with governmental decisions second presents background information on
that fail to consider their needs and rights. water management in Mexico, and the role
Drying up lakes and wetlands, flooding towns played by indigenous people. The third section
and farmland to build huge dams, polluting offers a summary of some of the main problems
rivers and aquifers with petroleum industry facing rural communities and indigenous peoples
wastes, transferring water to big cities – these are in water management. Special mention is made
just a few examples of decisions that have of links between water management and territo-
affected the indigenous peoples in different rial management, which is a central element in
regions of Mexico. the program of claims raised by various indige-
nous organizations of Mexico. Finally, some con-
Changes made since the federal elections in 2000 clusions and proposals are presented.
have not substantially altered the involvement
of indigenous peoples in water management
decision-making, particularly in regard to drastic
alterations in the territories where they live, such
as the construction of major reservoirs to gener- The indigenous peoples of
ate electricity.
Mexico: a brief overview
On the contrary, as we shall see below, there is
evidence that the Vicente Fox government is Mexico is a country with great ethnic and linguis-
repeating the same types of measures as in the tic diversity. According to the 2000 population
past, by building dams against the interests and census, there are just over 10 million indigenous
rights of indigenous and rural communities(1). The persons, 10.5% of the total population, speaking 151
government’s failure to keep its commitments over 62 languages and living throughout the
under the San Andrés agreements(2), defended country, although mainly concentrated in the
not only by the Zapatista movement, but also by central and southern states(4).
the largest coalition of unarmed indigenous
organizations, confirms the position taken by the The states with the greatest indigenous popula-
federal government in this field. tion are: Oaxaca, 1.5 million; Chiapas, one million;
Veracruz, Yucatán, State of Mexico and Puebla,
Studies under the Water Law and Indigenous Rights with about 900,000 indigenous inhabitants each.
(WALIR) programme in the Andean area show that
the issue of water rights, always linked to the right Hidalgo, Guerrero, Quintana Roo, San Luis Potosí
to territory, is one of the great challenges facing the and Tabasco are other states with sizeable
indigenous peoples of Latin America (Gelles, 2002; indigenous populations. Among the northern
Gentes, 2002; Guevara et al., 2002, among others). entities on the US border, Sonora has a signifi-
This is a key issue for water management on this cant population of Yaquis and Mayos, Chihuahua
subcontinent, if we consider that conservative cal- has Tarahumaras, and Coahuila has a small
culations estimate that 40 million indigenous peo- Kikapú group. About 27% of the country’s 2443
ple live in this part of the world. municipalities have populations that are 40% or
more indigenous (Figure 1).
The purpose of this paper is to offer an overview of
the water management challenges facing Mexico’s Some 333,000 indigenous people live in Mexico
indigenous peoples. Democratic water manage- City, the capital, making it the urban concentra-
ment must include respect for the rights of indige- tion with the largest indigenous population in
nous peoples and rural communities, which means Mexico. The languages most spoken are Náhuatl,
actually including them in decision-making. Maya and different variants of Zapotec and
Unfortunately, this issue has not received due Mixtec.
attention by government institutions in Mexico(3).
Figure 1. Distribution of Indigenous Populations in Mexico
100 0 100 200 300

km
152
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
National Indigenous Affairs Institute
Source: INI-CONAPO
Estimate of indigenous population based on data from the 12th Population and Housing Census, Mexico City, 2000, INEGI.
Indigenous peoples are not just a population communities are committed to sustainable forest
statistic. They play a very important social role management, namely because they understand
in various aspects of the life of the country, and the role that the woods play in water catchment.
their intervention is particularly outstanding in They offer highly valuable environmental
managing forests, jungles and lacustrine envi- services to society in these areas.
ronments (Toledo and Argueta, 1992; Nigh and
Rodríguez, 1995). Most of the country’s wood-
lands area is legally owned or inhabited by
indigenous communities and peoples, who have
become major forest resource stewards. (Merino, Water management
1997; Chapela, 1995).
Water use in Mexico is governed by Article 27 of
Indigenous people also play a leading role in the the Constitution and its Regulations, the
use and protection of biodiversity, and have National Water Law (enacted on 2 December
broad, complex knowledge of the highly varied 1992(5)). The definition of national waters in the
ecosystems where they live: deserts, coastal law is so broad that it encompasses practically all
plains, rain forests and temperate / cold forests surface water and regulates the extraction of
(Carabias et al., 1994). underground water. Through the National Water
Commission (CNA), the federal government
The water situation varies for indigenous peoples. (executive branch) legally administers and wields
Most live in parts of Mexico where water is authority over the country’s water resources.
readily available, since central and especially
southern Mexico have the highest mean annual The federal government has concentrated con-
rainfall. In some zones of Chiapas, Oaxaca, trol of Mexico’s water resources through a
Veracruz, Tabasco and San Luis Potosí, rainfall lengthy process spanning the late 19th and entire
totals 3500 mm per year, compared to the 20th centuries. It displaced state governments and 153
national average of 770 mm. municipalities for control of rivers, lakes, springs
and aquifers. Similarly, irrigator groups and com-
At the other extreme are peoples inhabiting dry munity authorities governed by uses and customs
areas, such as the Otomís (Hñähñü) of the were phased out of decision-making by federal
Mezquital valley, which has an average 350 – 400 intervention (Sánchez, 1993; Aboites, 1998).
mm of rain a year, or the Seris (Konkaak) of the
Sonora coast, with precipitation of 100 – 200 mm This process occured due to various legal, political,
per year. technical and financial measures, with a major
role played by large water projects that have
Water is a basic element of these peoples’ eco- changed the configuration of many watersheds.
nomic, social and cultural lives, that varies with
environmental diversity. For most, it is crucial to This planning and control of water projects,
have water for crops, but some also strive to keep changing watercourses throughout basins, has
their rivers, lakes and inlets in good shape for concentrated knowledge about water regimes
fishing. For all of them, it is very important to within a group of experts and the federal gov-
have a sufficient supply of good-quality water for ernment technical staff, at the expense of the
human consumption. local expertise legitimacy. These projects, geared
toward expanding the area under irrigation, were
Indigenous peoples are dependent on water for headed by the National Irrigation Commission,
consumption, but they also play a key role in and later by the Secretariat of Water Resources.
watershed conservation – particularly the forest
communities. Increasingly, indigenous and rural Concentrating control of water resources partic-
communities are concerned about the general ularly affected indigenous peoples’ rights to their
conditions in which their territory is managed, to accustomed uses of lakes, springs and rivers. And
guarantee the quantity and quality of the water where lakes and wetlands were dried up or major
that they require. Many woodlands indigenous reservoirs built, it also altered the territories
themselves, causing profound changes in the Nor does the Law recognize collective rights for
lifestyles of countless communities. indigenous peoples over the territory where they
live. So, they have few legal means to stop irre-
There was significant growth in the country’s versible changes, such as water transfers and
irrigated area from 1920 to 1970, and increased dam-building(7).
electric power was available for industrial and
urban growth. This was achieved through a The formation of watershed councils is a recent
management model that concentrated all water legal provision (started 11 years ago), that is
management decisions in the executive branch weakly and erratically implemented, and entails
of the federal government. Under these condi- no change in the management scheme character-
tions, water projects nation-wide attained an ized by decision-making that is concentrated in
unprecedented magnitude. the hands of federal administrators, who act
without disclosing information or consulting
Up until the late 1980s, there was no societal with affected parties.
involvement in decision-making. Affected groups
had no recourse but open protest. Under these In some international forums, Mexico has been
legal provisions, an example of such project was recognized for having managed, in such a short
the transfer of water from the Lerma river basin time, to organize watershed councils covering
to Mexico City. This affected many rural and practically the whole country. However, many
indigenous communities in the State of Mexico. independent voices in Mexico have pointed out
They saw their lakes and wetlands vanish, where that these councils are generally not very legiti-
they had fished and collected other lake prod- mately representative, because their member-
ucts. Farming peoples were left without water ship depends on the corporate legacy and politi-
for their crops. cal clienteles of the regime that has dominated
Mexico for the last 70 years.
154 The 1992 Law, in tune with changes in other
countries, charged the CNA with accrediting, Mexico’s watershed councils have been set up
promoting and supporting organization of users and operate with mistakes that cripple their
“to improve water utilisation and preserve and legitimacy and prevent them from operating as
control water quality”, and set up watershed to bodies truly representing the diverse groups with
enhance water management by co-ordinating interests in water administration. Under such
and building consensus among the CNA, differ- conditions, democratic water management is
ent levels of government and users. pending. The challenge will be to construct forms
of management that include the country’s
The current law favours a fragmented approach indigenous population in decision-making.
to water management, by focusing solely on sec-
toral uses (urban, agricultural, industrial, power)
and paying only very slight attention to the
impacts of such uses on ecosystems or large terri-
tories. Current water management in Mexico has Impacts of water
not changed much from traditional approaches.
Forming watershed councils involves users only management
according to their type of water use (agricultural,
urban, industrial). So indigenous peoples and
on indigenous peoples
communities, interested in the impacts that There are many areas in which indigenous peo-
water management might have on their lifestyles ple have difficulty exercising their water rights.
and in general on the territories where they live, Water supply for human use is a basic right but
have no forum to express their concerns or influ- facilities are sorely lacking in rural localities.
ence decision-making(6). According to official estimates, 42% of indige-
nous homes in Mexico did not have piped water
supply in the year 2000, and 70% had no sanita-
tion service(8). This partly explains the resurgence
of diseases such as cholera, and the persistence of people’s land was used, just over one fifth of
typhoid in these regions. their total land area. Twenty thousand peasants
were evicted from their homes. Although the
Mexico still has high rates of infectious diseases, dam was finished in 1955, it was not until 1962
especially in rural areas, transmitted in association that all the displaced persons had been re-
with lack of water or use of contaminated water. housed (Barabas and Bartolomé, 1973; Boege,
Governmental programs to address this situation 1988; Nigh and Rodríguez, 1995).
are feeble, short-sighted and poorly implemented.
Since many native peoples resisted eviction from
Paradoxically, there are plans to transfer water their land, the government created the Temascal
from rural regions to the large cities, without any Indigenous Co-ordinating Centre in 1954, to talk
thought to the minimal investments required to the affected Mazatecs into relocating. The main
improve local supply for human use. This is the task of the National Indigenous Institute was to
case for a project to transfer water from the cope with the contingencies of organizing new
upper Balsas river basin to Mexico City. In some villages. Twenty years later, there was another
cases, small rural and indigenous communities massive relocation of indigenous people, with
negotiate so that, in exchange for turning their the Cerro de Oro dam, south-east of the former.
springs over for a city’s use, they at least get a This time, the persons displaced were mainly
water distribution system of their own. Chantec.
Another area of conflict is the contamination of In the case of Cerro de Oro, the indigenous per-
water resources used by indigenous peoples. An sons expelled were sent to settle in the tropical
extreme case of this is the irrigation of the rain forest, which had been cleared for irrigated
Mezquital valley with sewage from Mexico City. farming. Some 13,000 Chinantecs displaced by
That region, inhabited by rural and Otomí the dam were taken to Uxpanapa, which was
indigenous communities, has, for a century, hurriedly made into an irrigation district, with an 155
received most of the sewage from the capital city. investment of US$50 million borrowed from the
The benefits that the inhabitants obtain by irri- Inter-American Development Bank (IDB).
gating their crops cannot be compared with the
health risks of using polluted water (Peña, 1999). It took years for both the Mazatecs and the
Mexico has a tremendous backlog in terms of Chinantecs to rebuild the community bonds that
sewage treatment, and the indigenous regions were wrenched apart after they were driven
are among the furthest behind in this regard. from their land. They lost day-to-day communica-
tion with most of their relatives and former
One of the most important aspects, because its neighbours; they were also deprived of essential
effects are so extensive in time and space, is symbols of identity, such as sacred places and the
forced relocation of indigenous and rural popu- graves of their predecessors. The police removed
lation to make way for big dams for irrigation or families who refused to leave.
hydropower.
They soon found that the land in the jungle was
The most dramatic example of this policy, and no good for rice and pasture monoculture. In a
perhaps the best documented, happened in the few years, the fragile soils were depleted, and
Papaloapan river basin on the Tehuantepec isth- cattle finished the degradation of the land that
mus, with the building of the Miguel Alemán had once been rain forest (Toledo, 1984). The
dam (9.106 billion cubic metres capacity) and government’s commitment to offer better living
Cerro de Oro dam (4.4 billion m3). The former is conditions to the displaced persons was never
for hydropower and flood control and the latter kept. Fifty percent of the new localities had no
for irrigation and power. basic public services, and support for training and
investment in farming was not consistent, either.
In the early 1950s, the Papaloapan Commission
started plans to build in the river basin. For the The Miguel Alemán and Cerro de Oro dams serve
Miguel Alemán dam, 500 km2 of the Mazatec as examples of how not to proceed, if one
intends to respect and protect indigenous peo- able drainage system, the federal government
ples’ rights. Indigenous peoples were simply plans to irrigate 1.5 million ha. for crops, cattle
never taken into account in these decisions. ranching and aquaculture.
Forced resettlement of indigenous peoples in In June 2002, a Tabasco newspaper published the
order to build reservoirs is one of the most sensi- Memorandum for Electrical Co-operation with
tive issues in Mexico. Therefore, there has been Central America that Fox had signed a few days
particular concern about the Fox government’s earlier. Some weeks later, the same newspaper
reactivation of plans to build a system of dams in published part of the project(9). The director of
the Usumacinta river basin, along the border the Federal Electricity Commission confirmed
with Guatemala. The most important of these that the dam would be built, stating that it
will be the Boca del Cerro dam, a bi-national would not be a high dam, but lower, to reduce
project by Mexico and Guatemala, under the the area flooded. However, as of October 2003,
Puebla Panama Plan driven by Fox. the authorities had offered no complete infor-
mation on the plans they intend to implement(10).
The Usumacinta river valley covers the upper
region of Chiapas, the Lacandona jungle and Non-governmental organizations, indigenous and
part of the State of Tabasco in Mexico and the environmental organizations, intellectuals and
departments of El Quiché, Verapaz and El Petén artists have criticized the project severely(11). They
in Guatemala. Clearly, these are indigenous terri- point to the negative impact that the dam would
tories. In Chiapas, most municipalities have pop- have on indigenous and rural population groups,
ulation that are 40% or more indigenous. The who would be displaced from the area to be
Usumacinta basin is a region with great biologi- flooded. According to moderate calculations,
cal and cultural diversity. Many archaeological 30,000 to 50,000 persons would have to leave their
sites of the Maya culture are located there, as are homes and crops, meaning an exodus comparable
156 major petroleum reservoirs. to the Cerro de Oro and Miguel Alemán dams(12).
The Federal Electricity Commission plans to build Experience with previous cases would indicate
the Boca del Cerro project 9.5 kilometres south- that the displaced indigenous and small farmer
west of the city of Tenosique, in Tabasco. The dam, families would not be relocated in better condi-
135 metres high, would be on the Mexican side, tions but, on the contrary, would face an even
damming 30.5 billion m3 of water. Half would be more precarious future.
in Guatemala and half in Mexico, although 65% of
the water would come from Guatemalan tributar- Dams also jeopardize the cultural heritage of
ies (México Tercer Milenio, 2003). indigenous peoples, threatening archaeological
sites of the Mayan culture, such as Yaxchilán in
Promoters of the plan project a flooded area of Chiapas and Piedras Negras in El Petén,
645 km2, of which 530 km2 are in Mexico and 115 Guatemala. The region’s biodiversity is also
km2 in Guatemala, that will generate 17.4 billion threatened. Ecological niches of numerous plant
kilowatt-hours of electricity. They claim this and animal species would be drowned beneath
power plant will save fuel (29 million barrels of the flood water, whereas wetlands would be
fuel oil per year) and help power the economic dried up elsewhere, as in the Centla swamps.
growth of Mexico and its neighbours.
The coalition of agencies and individuals oppos-
The Boca del Cerro dam is part of a plan for major ing the project, which actively involves several
transformations in the water regime of the indigenous organizations and municipal govern-
Usumacinta basin. This includes the Balancán ments, has denounced the powerful economic
bypass canal that will transfer water from the interests involved. Reactivation of the plan to
river to Términos Lake and generate another build the system of dams on the Usumacinta coin-
1.25 billion kilowatt-hours. cides with President Fox’s insistence on amending
the National Constitution to enable private
By building the Salto del Agua dam and a size- investment in the power sector, especially by
trans-national companies such as Enron, which A major hurdle for indigenous peoples is the
would have an excellent platform to sell electric- weak and indirect nature of legal recourse to
ity to Central America. claim rights over territory. With the government’s
failure to comply with the San Andrés agree-
Large construction companies with strong ties to ments, indigenous communities are forced to
federal administration – which is often accused of seek, in environmental and other laws, some
corrupt contract procedures – are also interested foothold to curb the water-related changes that
in the projects. It is estimated that the Boca del threaten them. In addition to weak legal
Cerro dam would cost US$5 billion, a major deal recourse, they are also socially at a disadvantage
for builders. in confrontations with powerful economic
interests, such as those pushing to build
Government plans under way and the citizen hydropower dams.
movements opposing these dams pose a chal-
lenge for the watershed council. Does this body To guarantee respect for indigenous water
actually exist, and represent the constituency? rights, including not destroying their livelihoods,
Could it operate as a forum for information and it will be necessary to work in three directions:
consultation with the affected parties? insistence on adopting a legal framework that
Apparently not. Criticism by citizens’ bodies and fully recognizes indigenous peoples’ rights; inclu-
rebuttals by authorities have all circulated inde- sion of legitimate indigenous representatives on
pendently of the council that should, by law, be water management bodies, in territories where
the main body for information, consultation and they live; and formation of social coalitions to
consensus-building. In particular, indigenous and amplify the voice of citizens such as indigenous
rural organizations of the zone that have spoken peoples who are generally at a disadvantage vis-
up are being ignored. The federal government is à-vis more powerful financial interests.
responding as its predecessors have.
157
Conclusions
In Mexico, respect for indigenous peoples’ water
rights and their involvement in water manage-
ment are still pending issues. Despite the impor-
tance that native communities have and could
have in watershed conservation, the key area for
water resource conservation, indigenous voices
remain faint in management bodies.
Representation in watershed councils is designed

and applied in such a way that it neglects indige-
nous peoples and jeopardizes their interests in
water management, especially regarding the
protection of community territories and the
management of unassigned water resources.
Water management and its interrelations with
the conservation of biodiversity and cultural her-
itage are issues of great interest to indigenous
peoples. Their multi-faceted uses cannot be
reduced to user categories, such as agricultural or
urban.
(6) In the last three years, watershed councils have begun

including representatives of ‘environmental use’ of water. This
158 ENDNOTES approach is designed to keep the vision fragmented, as if a
(1) The indigenous presence in Mexico goes beyond groups lake or estuary were also ‘a user’. Representation is also
speaking the American languages, and is found as well in generally assigned to environmental groups, without
the customs and lifestyles of Mexico’s rural communities considering that municipal authorities or indigenous
(Bonfil, 1987). Moreover, indigenous and non-indigenous organization leaders in some watersheds might have a stronger
live together in many communities, and decision-making interest in integrated water management in a given territory.
involves all of them, through community institutions. For
(7) Facing similar cases, indigenous communities may seek
this reason, this paper always refers to indigenous peoples
support from the country’s environmental laws, which offer
and rural communities.
loopholes to argue the non-sustainability of projects that are
(2) The most important outcome of San Andrés, the to be implemented. There is also a little room for municipal
indigenous law initiative drafted by a plural commission of authorities to intervene to change some plans. These
legislators, did not pass Congress. Representatives of procedures depend on an environmental impact assessment,
President Fox’s party (Partido Acción Nacional) actively which has proven to be a controversial instrument, readily
worked to change the terms of the agreed draft law, which manipulated by the companies that present them.
the President had promised to promote.
(8) Having piped water does not mean having safe water. In
(3) Emphasizing this issue and contributing to building rural areas, as in many cities of Mexico, maintain the quality
proposals for respecting indigenous water rights is one of of drinking water continues to be a major challenge.
the fundamental goals of the Water Law and Indigenous
(9) See Tabasco Hoy, 30 June and 10 August 2002. The
Rights (WALIR) program, pursuing research, dissemination
information was also published in other newspapers,
and collaboration with indigenous organizations in various
New York Times, 22 September 2002.
countries of the Americas. Boelens, 2002.
(10) The National Water Commission has not published the
(4) In Mexico, as elsewhere, there is debate about the best
details on the whole project, although it has been reported
way to identify the existing indigenous population. In
that the Federal Electricity Commission began work in
censuses, the language criterion has been used. The
March of this year.
National Indigenous Studies Institute made an overall
estimate of 12,707,000 indigenous (year 2000). For more (11) March 2002, declaration of the Central American Forum
data, see Serrano, et al., 2002. against Dams.
(5) At present, a process is under way to amend the National (12) Others claim that the numbers of displaced persons may
Water Law. Changes approved by Congress were sent back by total a million, by the time the project is completed, with all
President Fox, with a series of observations to be considered. its facets. (Tabasco Hoy, 26 January 2003).
REFERENCE LIST Guevara-Gil Armando et al., 2002, Water Legislation and

Aboites Luis, 1998, El agua de la nación. Una historia política Indigenous Water Management in Peru. WALIR Studies,
de México (1888-1946). CIESAS, Mexico City. Vol. 2, Wageningen University / IWE and United
Nations/ECLAC, Wageningen.
Barabas Alicia and Bartolomé Miguel, 1973, Hydraulic
development and ethnocide. The Mazatec and Chinantec Merino Leticia (co-ordinator), 1997, El manejo forestal
people of Oaxaca. International Workgroup for Indigenous comunitario en México y sus perspectivas de sustentabilidad.
Affairs 15, Copenhagen. UNAM, SEMARNAP, WRI,CMS, Mexico City.
Boege Eckart, 1988, Los mazatecos ante la nación. México Tercer Milenio, 2003, www.mexicotm.com
Contradicciones de la identidad étnica en el México actual.
Nigh Ronald and Nemesio J Rodríguez, 1995, Territorios
Siglo XXI, Mexico City.
violados. INI-CNCA, Mexico City.
Boelens Rutgerd, 2002, Water Law and Indigenous Rights:
Peña Francisco, 1999, La esperanza en las aguas de desecho,
Research, Action and Debate. WALIR Studies, Vol. 2,
Construcción de una región irrigada en el valle del
Wageningen University / IWE and United Nations/ECLAC,
Mezquital. Frontera Interior, social science and humanities
Wageningen.
journal, No 3-4, INAH-University of Querétaro, Querétaro.
Bonfil Guillermo, 1987, México profundo: una civilización
Sánchez Martín, 1993, La herencia del pasado. La
negada. CIESAS/SEP, Mexico City.
centralización de los recursos acuíferos durante el porfiriato
Carabias Julia, Provencio Enrique and Toledo Carlos, 1994, 1888-1910. Relaciones. Estudios de Historia y Sociedad,
Manejo de recursos naturales y pobreza rural. UNAM-FCE, No 54, El Colegio de Michoacán, Zamora.
Mexico City.
Serrano Enrique, Embriz Arnulfo and Fernández Patricia
Chapela Gonzalo, 1995, Aprovechamiento de los recursos (co-ordinators), 2002, Indicadores socioeconómicos de los
forestales en la Sierra Purépecha. UAM, Mexico City. pueblos indígenas de México, 2002, INI, United Nations
Development Programme, CONAPO, Mexico City.
Gelles Paul, 2002, Andean Culture, Peasant Communities
and Indigenous Identity. WALIR Studies, Vol. 2, Wageningen Toledo Alejandro, 1984, Cómo destruir el paraíso: el desastre
University / IWE and United Nations/ECLAC, Wageningen. ecológico del sureste. Océano-Cecodes, Mexico City.
Gentes Ingo, 2002, Water Law and Indigenous Rights in the Toledo Víctor and Argueta Arturo, 1992, Cultura indígena y
Andean Countries: conceptual elements. WALIR Studies, ecología. Plan Pátzcuaro 2000, Friedrich Ebert Foundation,
Vol. 2, Wageningen University / IWE and United Mexico City. 159
Nations/ECLAC, Wageningen.
This paper studies the bodies of law drafted by the Ecuadorian

indigenous movement to enforce their collective rights, in the context of
their own political intentions. It hypothesizes that this movement is
attempting to synthesize a complex of normative frameworks from
different indigenous nationalities and peoples into a codified norm, to
160
harmonize their viable operation with the system of national laws, as an
attempt to achieve juridical pluralism, as guaranteed by the national
Constitution.
In this context, three proposed laws, one proposal for community
regulations and one presidential decree are analysed (the latter issued
on the basis of a prior proposal by the movement). The central theme for
this analysis is the water management model proposed by indigenous
nationalities and peoples for Ecuador.
The idea here is to present an overview of what is being achieved under
a 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) and
consultant in the areas of environmental rights, water and gender, for international co-operation
agencies and indigenous organizations of Ecuador.
bichilu@andinanet.net
gates from indigenous nationalities and peoples.

Introduction The draft laws have been presented to the
National Congress for legislative approval. The
In countries of the Andean region governments model community by-laws have actually become a
have chosen different ways to incorporate norms model for several communities in Imbabura
recognizing their pluri-ethnic composition into province (northern Ecuador), Otavalo and Cayambi
the legal framework – through laws or national Kichwas. Also included is an executive decree,
Constitutions. Likewise, with the exception of issued by the President and therefore a national
Chile, legislation addresses norms for relations juridical norm. This makes it the only proposal of
within indigenous, original inhabitant or rural the indigenous movement that has been enacted.
communities. As for natural resource manage-
ment by indigenous peoples, the region’s We will not attempt to present an exhaustive
national constitutions (again, excepting Chile’s) range of legislative proposals drafted by the
grant relatively broad authority over the areas indigenous movement, but only to address those
they have traditionally inhabited(1). that have made the effort to manage public
water on the basis of the civilizing heritage of
This study has taken as its frame of reference indigenous rights or normative systems.
• the rights acquired by indigenous peoples in
Andean national Constitutions regarding,
very broadly speaking, the concept of juridical
plurality,
• and natural resource management, including Ecuador: a diverse,
water.
pluri-cultural country
For customary law, I will limit discussion of the
frame of reference to key concepts regarding In Ecuador, the indigenous peoples identify 161
juridical plurality, indigenous and / or customary themselves as nationalities and peoples. There
law. The intention is not to address the concep- are 13 indigenous nationalities, and 18 peoples
tual issue in extenso but rather to examine within the Kichwa nationality(2). There are several
Ecuador’s specific case. government institutions that respond to
demands for inter-culturality and indigenous
In Ecuador, a legal framework that features juridi- participation, as well as indigenous representa-
cal plurality, such as in water management, has tion in a number of other state institutions
materialized through actions pursued by the addressing a range of issues. The Confederation
Ecuadorian indigenous movement. of Indigenous Nationalities of Ecuador (CONAIE)
has drawn indigenous nationalities and peoples
This paper aims to describe what has become an together since 1986, as the visible leadership of
interesting case of ‘positive-isation’ of customary the Ecuadorian indigenous movement.
law – or rather, of (general notions) in such an
inter-ethnic complex as Ecuador’s. This movement In 1990, CONAIE inaugurated the Ecuadorian
has led to harmonization enabling Ecuador’s indigenous movement politically and socially, by
indigenous peoples to apply the juridical plurality a massive national uprising for Inti Raymi (the
guaranteed by Article 191 of the national solstice ‘sun festival’), demanding resolution of
Constitution, without relinquishing their own land conflicts and reforms to make the State
conceptual and ethical framework. pluri-national. Since then, CONAIE has played a
leading role as a social and political movement
Accordingly, the indigenous movement proposes that has made it possible to revisit the concept of
full exercise of community and / or peoples’ forms the State, and other elements of cultural short-
of social management of water in their territories. sightedness that kept indigenous people under-
The cases discussed in this study are proposed privileged and out of sight. In 1992, the March
bodies of law that have been prepared using dif- for Life made demands regarding indigenous
fering modalities, with ample involvement of dele- territory in the Amazon region. This revealed the
complexity of a social fabric tightly interwoven Customary law concerning

with indigenous interests, including particular
claims to manage their ancestral territories. access to and use of water:
ancestral practices, uses and
By 1994, the National Congress had enacted an
Agrarian Development Law that reversed the traditional customs
agrarian reform process. Despite serious draw-
backs, this process had provided a way for indige-
nous and other rural folk to own their commu- Conceptual considerations
nity and family land. Ecuador’s indigenous and In the Andean countries, such as Ecuador, ‘positive
rural organizations held a second major uprising law’ is, in effect, pursuant to the juridical norms
to advocate an integrated, democratic approach established by the government. This approach is
to agricultural development. The protest stirred incorporated in the national Constitution, thereby
up such strong feelings that the President had to excluding other approaches and norms. Although
veto the law. This curbed, for the time being, the assumption is that positive law is the only possi-
norms that would have privatised water. ble way to set up a State, the Ecuadorian
Constitution (CPE: 1998, article 191)(3) also provides
In 1996, CONAIE decided to take part in represen- for juridical plurality, by accepting the enforcement
tative democracy, setting up the Pachakutik of customary law among indigenous peoples.
Nuevo País Pluri-National Unity Movement, for
that year’s local, provincial and even (through Customary law comprises the norms based on
alliances) presidential elections. In the 1996 the dynamic cultures of indigenous peoples,
national elections, eight senators elected under regulating and providing order for them. These
this new party’s banner voted as a block. This norms for behaviour, morality, and social conduct
gave rise to legislative discussion about indige- are often difficult to classify into thematic cate-
162 nous peoples’ rights, within a setting of demo- gories, such as ‘indigenous criminal law’, or
cratic, progressive proposals. ‘indigenous water law’, etc. They are more like
regulations, perspectives, moralities and precepts
In 1998, after President Abdalá Bucaram was that organize life in communities and other
ousted with the active participation of CONAIE, grassroots organizations within indigenous
the Confederation pushed for the National nationalities and peoples.
Constitutional Assembly, with a pluralistic sum-
mons to all societal and citizens’ sectors, to create Various disciplines discussing juridical pluralism
an unprecedented, participatory, inclusive, dem- express the concern that customary law must be
ocratic constitution. By the end of that year, the legally established and defended. In Ecuador, the
proposal turned into reality, and the Assembly indigenous movement has attempted to summa-
was held, with several indigenous leaders, both rize values, morality and norms, in an attempt
male and female, as Assembly members. Under collectively to draft laws with normative validity
collective rights, this new Constitution specifies a under written, positive law. This has meant
number of the demands raised in the indigenous inserting their own normative way of thinking
movement’s struggles. into Ecuador’s juridical norms.
Central issue
The Ecuadorian indigenous movement brings
together a diverse range of normative frame-
works from different indigenous nationalities
and peoples regarding water management. This
is the basis for proposing a normative model for
overall participatory management of society,
transforming customary law into positive-law
building, and into bodies of law that summarize
what juridical pluralism ‘should be’.
Although customary law is the aggregate of local and rights. This proposal obviously refers to the
norms governing particular societies, the frame of reference that would be institution-
Ecuadorian indigenous movement has under- alised; it is not an empirical analysis of current
taken the task – with direct participation by relationships or values prevailing in present-day
indigenous peoples – of ‘positive-izing’ these practice – whether equitable or not – within
norms. It has taken several years’ work to produce Andean communities and indigenous peoples.
bodies of law specifically for water management
that are informed by the indigenous movement’s
demands. The Ecuadorian indigenous movement
has synthesized positive law and customary-law
norms, exemplifying the historical and legal Bodies of law composed
viability of juridical pluralism.
by the Ecuadorian indigenous
Indigenous grassroots communities and organi-
zations are regulated by normative frameworks,
movement
tied to local cultures. The local norms resolve con-
flicts in water management processes as collec- In Ecuador, the indigenous movement has man-
tive efforts to return to or maintain order. aged to influence lawmaking significantly, as a
high-profile political stakeholder. This includes
The Ecuadorian indigenous movement has man- the lengthy process of ratifying the International
aged to synthesize written, codified positive law Labour Organization (ILO) Convention 169 on
with indigenous or customary law, which is usually Indigenous and Tribal Peoples in Independent
oral and tradition-based. The bodies of law Countries and the collective rights guaranteed in
prepared collectively by this societal and political the national Constitution, which CONAIE actively
stakeholder draw upon the indigenous peoples’ promoted.
common practices, notions and values to resolve 163
conflicts, to share water on a consensus basis, These processes are significant, and it is worth-
distribute responsibilities, politically organize while to underscore the efforts that Ecuador’s
their local mechanisms, traditional and / or legiti- indigenous peoples have made to further collec-
mate authorities, and handle their water units or tive legislation. In this study, I will refer to several
ecosystems holistically. bodies of law that have been proposed by the
Ecuadorian indigenous movement, analysing:
This study will use the terms ‘customary law’, • the Law of Indigenous Nationalities and
‘norms’, ‘normative frameworks’ and ‘local Peoples,
indigenous norms’ interchangeably, to denote • the Law on Water,
the set of customs gathered by the Ecuadorian • the Law on Indigenous and Rural
indigenous movement into the bodies of law Communities of Ecuador,
analysed here. We will not discuss terminology • the Otavalo Model Regulations, and
and concepts here, as they are beyond the scope • the Programme for Irrigation and Recovery
of this study, albeit a rich topic. of Degraded Land.
Finally, the collected water management norms These proposed norms have been selected, first
entail social participation and the search for from among the laws that the indigenous move-
equity, which is something of an expanded ment has prepared collectively; second, in terms
hypothesis. The model, derived from a critical of the jurisdictional level at which they have
reading of documents in Ecuador, entails an been proposed (from national to local); and third
integrated, participatory perspective for shared in order to provide an overview of the indigenous
management, or co-management, with govern- peoples’ political and normative vision for this
mental agencies. It nevertheless maintains country. The last body of law will be reviewed as
strong awareness of the concepts of territory, a special case, as the only indigenous movement
nationalities, peoples, and autonomy or self- proposal that has materialized into a positive-
determination by peoples through their actions law norm, incorporated into Ecuadorian law. The
documents reviewed here correspond (as will be This proposal would become a framework or
explained below) to different periods and are organizational law for the body of collective
therefore not necessarily related. Prior to indige- rights assured for indigenous peoples by the
nous peoples seeing their rights recognized in Ecuadorian Constitution and the ILO Convention
1998, the Convention 169 and plurality stipu- 169. It was drafted following both these norma-
lated by the Constitution were no more than tive instruments, and after CONAIE proposed the
aspirations. Water Law.
We will examine water management norms: in The norms that the proposed law on indigenous
each case, there is a close relationship between peoples establishes for water management
the proposal itself, the customary-law vision of always mention the collective rights-holder, the
lawmaking, and participation in creating the maintenance of political autonomy for this rights-
norms with the repercussions they could entail. holder, their authorities and the administration of
their territory.
These proposed norms, which embody much of
the indigenous peoples’ normative and ethical Specifically, it addresses the issue of legitimate
culture, could become a bridge, challenging the authorities over natural resources, as well as
divide between the nation’s positive law and jurisdictional powers, administration of justice,
indigenous normative frameworks. legal status and administrative / para-State status
(Article 10).
Law on indigenous peoples(4) Regarding natural resources (which several

It took several years of meetings, workshops, articles understand as including water) the law
seminars and even academic discussions to draft establishes the peoples’ and nationalities’ full
the proposed law on indigenous nationalities and rights over them, as part of indigenous territory
164 peoples. The national Constitution guarantees a (Article 19). It also proposes consultation for all
body of collective rights for peoples “who define planning, programmes and projects for
themselves as nationalities with ancestral roots” prospecting, exploration, or extraction of renew-
(CPE, 1998, art. 83). Pursuant to this constitutional able and non-renewable natural resources
norm, with the need for a legal framework located in indigenous territories or related to
enabling them to exercise these collective rights, their development (Article 24). Such consultation
CONAIE pressured for the enactment of this law. must submit proper, complete information to
It was presented to the National Congress in the indigenous authorities, as well as exhaustively
version studied here, and passed. However, the analysing the future effects that such projects
President vetoed it because of disagreements could have. Another point involves participation
regarding certain formalities and legal techni- in benefits yielded by projects implemented in
calities, so it remained suspended. indigenous territories or by lands possessed
ancestrally by these rights-holders (Article 28).
The draft law very specifically conceptualises the Then it proposes a guarantee that all projects
indigenous peoples as holders of collective rights. involving natural resources be subject to envi-
It also conceptualises the legitimate authorities ronmental, socio-cultural and economic impact
of these rights-holders, their own forms of studies, as well as measures to repair these
governance, different sorts of organization within resources and / or indemnify peoples and nation-
ethnic structures, juridical plurality, territory, alities for expected damages (Article 33).
natural resources, biodiversity, customary law,
consultation, integrated management of indige- Regarding government institutions, it proposes
nous properties and / or territories, government direct involvement by indigenous nationalities
institutions, maintenance and development of and peoples in government agencies that make
indigenous cultures, and promotion of indige- policies on, among other topics, natural resources
nous lore and science. and biological diversity (Article 39). These agen-
cies include the National Water Resource Council
(CNRH), Ecuador’s top governmental agency for
freshwater management and control (Article 40). societal management for genuine
Since Ecuador’s legal framework stipulates that democratisation of natural resource use
the State must be decentralized, this proposed “we always link the social function with
law provides for full, direct involvement of participatory social management…”;
indigenous nationalities and peoples in project • creation of the National Irrigation Fund,
preparation and implementation of services along with autonomy for agencies
including water supply (Article 47). To administer managing water resources.
services, responsibility for indigenous nationalities
and peoples is regulated in co-ordination with The first comment involves the vastness of the
local or sub-national government (Article 50). goals and therefore the norms proposed by this
Moreover, the law provides for forming commu- law. Secondly, there is a duplication of norms for
nity or self-managed enterprises to administer certain areas, that the constitutional norm estab-
basic services (Article 51). lishes as rights (for example, respect for, recogni-
tion and management of sacred places) that the
peoples must legislate for, if not already part of
Law on water other laws proposed in the last few years (e.g.
This proposal was drafted in the context of pri- indigenous administration of justice, the
vatising trends that seemed inevitable as Irrigation Programme, etc.) by CONAIE itself.
Ecuador’s water management model. In 1996, the
indigenous movement had not yet concretely The proposal is not very clear institutionally or in
entered Ecuadorian representative democracy, terms of jurisdiction. It also emphasizes manage-
nor had the National Constitutional Assembly – ment of all water issues at the local level; in the
summoned by CONAIE to ‘re-found the State’ – cases of indigenous peoples and rural population
been held yet. This draft law was presented by a groups, it always mentions community manage-
block of indigenous and non-indigenous mem- ment. These local levels of society must also par-
bers of Congress belonging to Pachakutik, and ticipate directly in managing water within their 165
Congress has yet to deal with it. In fact, since this territories or areas of influence. Accordingly,
proposal, different productive, political and even there is a chapter ranking priorities for water use,
academic sectors have submitted another 14 pro- considering the type of access, the grantee of the
posed water laws to the Legislature. usage (individual or collective), and the purpose
for which the water will be used, including the
The proposal covers a diverse range of issues social benefit of domestic food security.
regarding water regulation, both those con-
tained in the current law(5), and new areas related The water law proposed by CONAIE would create
to sacred waters, financing of indigenous and a National Fund for Irrigation, Training, Protection
rural irrigation, community management, and and Water Resource Management, to finance:
crimes against water resources. • construction and repair of indigenous,
rural and Afro-Ecuadorian irrigation systems,
Several areas are covered in the proposal’s main • studies, designs and construction of
themes: projects to optimise water utilisation,
• water is public property, as is the • sustainable, integrated watershed
concession of water for all uses; management,
• integrated, sustainable use of ecosystems • training,
and water; • maintenance regarding polluted water
• support for indigenous and small farmer and sewage, and
irrigation; • research.
• domestic food-supply security, based on
indigenous-smallholder agrarian economies; This fund would be administered by the
• the cultural perspective of indigenous and government water authority (i.e. the National
other rural peoples, including ways to use Water Resource Council, CNRH) and the top-
sacred water; priority beneficiaries would be indigenous,
• community management and participatory smallholder and Afro-Ecuadorian communities.
In this regard, the CONAIE proposal contains sev- equality, grounded in community modes of pro-
eral elements: duction (mingas) in which all members take part”
• the need for the State to provide funding (Article 1). The proposal attempts to include any
for indigenous and peasant irrigation; organization with these internal mechanisms,
• that beneficiaries must always include and to establish the procedure for legalization
indigenous, small-farmers and Afro- and development.
Ecuadorians, to materialize inter-culturality
and the will to provide an alternative for all It is interesting to note that ‘autonomy’ is con-
Ecuadorian men and women; ceived as the right of all communities to conserve
• the proposal to create the fund, in the water and reinforce their own political, economic,
law, embodies the Ecuadorian indigenous social, cultural and legal characteristics, as well as
movement’s ‘model’ for participatory, direct participation in all projects, planning and
intercultural, equitable water management. development efforts affecting the community.
Article 5 also includes community jurisdiction for
This topic of the Fund is interesting: in the year administration of justice.
2000 it was included on the agenda for the dia-
logue with the government of (ousted President) Article 6 covers the purposes and operation of
Jamil Mahuad. The indigenous movement per- communities: “To govern access to the use of land
suaded the successor (the Vice President who and other renewable and non-renewable natural
took over the presidency) to issue a presidential resources belonging to their territory for those
decree, creating the National Programme for belonging to the community and others.” This
Irrigation and Recovery of Degraded Land, with approach would view the ecosystem as a whole
an initial fund for several of the objectives (with respect to the territory) as a unit of land
already outlined in CONAIE’s 1996 water law pro- with all its natural resources. However, above all,
posal. The initial proposal and the way it materi- there is the community purpose of ‘governing’
166 alized are compared below. access to these elements of their territory,
thereby including a perspective of self-determi-
nation. This article also proposes: (subsections b
Law on indigenous and peasant and c) direct action for development; (d) regulat-
communities of Ecuador ing work; (e, f and g) also governing agricultural,
The Ecuadorian indigenous movement remains livestock and forest production, including
strongly committed to what it terms its ‘community cadastral records; and (h and i) conservation and
base’ or culture, especially among inter-Andean regulation of cultural and educational rights.
(highlands) or Kichwa peoples. It was, in fact, the
highlands organization, called at that time the This makes the community the core of indigenous
Confederation of Peoples of the Kichwa peoples’ lives, providing them with autonomy,
Nationality of Ecuador (Ecuarunari), a fourth-tier outlining a concept of community territory,
regional organization belonging to CONAIE, that characterizing the community as the collective
collectively drafted a proposed law on communi- rights-holder and accordingly the authority to
ties. This proposal had several aims (Ulcango, administer, represent and govern free self-
1998): to materialize general norms for ancestral determination in the issues under its jurisdiction,
communities; to create legal norms recognizing including the right to be included in consultation.
the constitutional rights that indigenous peoples
had just been incorporated into the national Articles 17, 19 and 24 propose that communities
Constitution; and to help ‘reconstitute’ the directly and legally manage water and other nat-
Kichwa nationality, which is a main thrust of ural resources in their habitat. This management
Ecuarunari. is by the community, and entails (in this proposed
law):
The communities law is based on an idealized • active, equitable participation by all
approach to the concept of communities, “as a members (male and female);
group of families that base their lifestyle on col- • sustainability as an active principle;
lective practise of reciprocity, solidarity and • development of ancestral knowledge; and
• water management according to local and interesting that the co-ordination with Ecuarunari
customary rights. and the process of preparing these regulations,
with delegates from various communities,
In this last area, the synthesis examined in this attempted to avoid infringing on norms, and to
study (between positive law and community law) incorporate the constitutional progress, in
is achieved: communities, interacting with vari- recognition of the indigenous movement as a
ous socio-legal repertoires, administer justice and whole.
regulate / govern all walks of community life. I
would like to emphasize that codifying commu- The regulations were drafted for a particular
nity law does not generate a ‘static, essential community, and therefore develop norms for
indigenous law’. The indigenous organization’s protecting and managing natural resources in
lawmaking work envisions the possibility for the general, but also specify their local gullies,
norms to be applied, maintaining local traditions springs, grasslands and forests. They also contain
and customs, also alluding to the present-day the community members’ individual rights, the
dynamics of indigenous cultures. obligation to reforest private property, environ-
mental care, natural resource conservation and
This proposed law also regulates other issues prohibitions and penalties.
involving agricultural development, credit, pro-
duction, marketing, and training in production- Regarding water management, the sustainable
related activities, as part of the State’s responsi- management approach is outlined in several
bility for community development. articles, covering different elements of water
resources: sources, native forests, gullies, and
In other sections, it regulates identity, culture, reforestation. Furthermore, community-level par-
education, health and collective intellectual ticipation involves community members directly
property, maintaining the paradigm that the in managing community territory and land, and
community holds these rights and that, within in decision-making, through assemblies. The 167
the community, individuals can enjoy and traditional authority is the cabildo board.
develop them.
An interesting element is the constant inclusion
of a gender perspective in the wording of the
Otavalo model regulations regulations. There are several proactive measures
This body of law was made by members of differ- geared towards achieving equity, particularly in
ent communities around Otavalo, with ongoing favour of women, for example by including both
co-ordination by Ecuarunari, as a regional organ- genders in the wording. This emphasis may
ization, at the time when the latter was prepar- reflect renewed outlooks among community
ing its proposed law on communities (1998). leaders that confirm how indigenous cultures
These regulations attempt to include collective and norms are dynamic and changing.
rights and to create the law, according to Luis
Fernando Tocagón, the indigenous leader who The chapter on penalties is also worth nothing.
provided a copy for this study. The present chap- The foundations of non-indigenous criminal law
ter is an overall review of these regulations, bear no direct relationship with this indigenous
because the text constantly refers to an overall body of norms. Failure to comply with the legal
vision. That is, many articles refer to natural and community norms will be penalized by the
and / or water resource management, and partici- cabildo. Article 43 sets forth the penalties in the
pation is a cross-cutting theme. following order:
The text agrees with the concept of a community, • private admonishment;

its aims, purposes, and certain expressions found • public admonishment;
in the proposed law on communities. It is also an • temporary suspension of community
example of local norms, for the Kichwa people members’ rights; and
around Otavalo and Cayambe, attempting to • expulsion of the member from the community.
create a model for participating communities. It is
The last two penalties must be ordered with The programme was created under the Ministry
approval by the General Assembly. Article 44 of Agriculture, to support irrigation in indigenous
determines the behaviours that will be penal- and peasant communities, along with recovery of
ized, which may be classified as degraded land (Article 1). Three indigenous and
• those that infringe on community rural users’ and irrigators’ organization leaders
co-existence; and sit on its board of directors, alongside three rep-
• infractions against shared management of resentatives from the government, and a repre-
the community’s resources and services. sentative of the large-scale agricultural produc-
tion sector (Article 4). The objectives include those
The preceding paragraph reveals an ethical per- that CONAIE had presented to the government:
spective and a concept of equity. The community
seeks to maintain order inwardly, with respect • Optimisation of water use;
for the community and its members, setting • Reactivation of small-farmer economies;
forth general treatment for all, and on a case- • Employment creation;
by-case basis. Communities governed by these • Guaranteed domestic food supply;
regulations and complying thoroughly with • Greater socio-economic stability in rural
them, would apparently enjoy significant order, zones; and
maintaining the lives of their peoples, within • Harmonizing urban development by
their cultural and moral customs and practices. applying sustainable, efficient management
of natural resources within the framework
of family farming (Article 5).
The programme of irrigation and
recovery of degraded land Funding will be provided for sustainable, indige-
Since 1996, the indigenous movement has been nous and small-farmer irrigation projects, as well
calling for the creation of a fund to support as organization-building, training and inte-
168 indigenous and smallholder irrigation, so that grated management of watersheds, micro-
the government can fund those sectors that have watersheds and sub-watersheds (Article 6). The
not received support, but which – according to Programme must be efficient, must directly
CONAIE statistics – generate 60% of domestic involve communities and irrigators’ organiza-
food supply security. tions, and guarantee participation by non-gov-
ernmental agencies (Articles 7, 8 and 9).
In the proposed Water Law, the indigenous
movement specifically defined the objectives for This decree provided a vehicle for the indigenous
creating the Fund. This demand went further demand to fund the huge requirements for com-
than presenting this proposal to the National munity irrigation, while maintaining the goal of
Congress and, every time CONAIE has organized strengthening grassroots organizations so that
rallies, it has been part of its ‘mandates’. they can directly manage the projects funded.
This unique experience was a political landmark
After CONAIE’s leading role in ousting the for the indigenous movement. But it also showed
President of Ecuador, Mahuad, their mandates the capacity for intercultural dialogue, as a
again included the creation of an Irrigation Fund. means to integrate demands for participation,
Discussions were a slow process that codified the direct organizational management and written,
CONAIE proposal into a presidential decree positive-law norms. These, in turn, would help to
signed by Mahuad’s successor, and entitled make support for indigenous and peasant irriga-
Programme of Irrigation and Recovery of tion State policy.
Degraded Land.
As a final comment: the resources allocated in
This decree is the only body of law in this study this decree (2001) have not yet been delivered by
that has been proposed by the indigenous move- the government, which blames the fiscal reform
ment and that has been converted into law by that Ecuador must undergo, pursuant to agree-
the Ecuadorian government. ments with the International Monetary Fund. In
any event, the programme has not been imple-
mented, although it is on the law books, and is a Some final readings

recurrent issue in mobilizations and demands by
the Ecuadorian indigenous movement. This case can only provide us with conclusions
about itself, and the process of the Ecuadorian
indigenous movement. The purpose of describing
and de-coding(6) the work done by the indigenous
movement is to design a legal framework that
Conclusions could harmonize their demands and rights under
customary-law with prevailing reality and norms,
Indigenous endeavours in Ecuador have worked and serve as an example. But it can not be an
towards synthesizing customary law and positive exclusive blueprint for such diverse realities as
law, along with local norms and organizational are found in the Americas, or even for the indige-
models for integrated water management. nous peoples of the Americas.
Customary law, amidst a dynamic political
process of mobilization, dialogue and collective It is noteworthy that this generation of concepts,
lawmaking, can in fact offer opportunities for policies and norms to achieve sustainable water
developing a pluri-cultural coexistence and management has been democratic and partici-
juridical plurality. patory. It has also been a substantial element
in the development of Ecuador’s indigenous
The Ecuadorian indigenous movement has been peoples. This aim has always been present in the
proposing, for almost two decades now, the con- testimonies we have gathered, in the drafting of
struction of a pluri-national State as a pathway to texts, and also in discussions that indigenous
structural political reform of the State. The col- leaders have had as they became more and more
lective effort appearing in the bodies of law that mobilized.
were prepared and proposed to Ecuadorian soci-
ety and government show what this could mean. This exercise of proposing laws that address 169
general norms and ethical precepts, but which
There are a number of constraints and challenges also embody the demands of the indigenous
for the movement. First, Ecuador’s economic sys- peoples, could be seen as the capacity for synthe-
tem is dependent upon the model implemented sis that is required to build juridical plurality into
by the International Monetary Fund and multi- the Ecuadorian State.
lateral development banks. Second, and as a con-
sequence of the former, no resources are avail- Here, I must emphasize the efforts that have
able to implement such proposals, simple though been made in Ecuador to draft the proposed laws
they may seem, because of this dependence. collectively among the indigenous peoples, in a
Third, there is a strong tendency to privatise general context of power relationships that have
water management and environmental conser- usually excluded these stakeholders and seem to
vation, which emerges as proposals that are deny that any juridical practises or rights exist
based on swaps involving Ecuador’s foreign debt beyond the current governmental system.
to multi-lateral banks. Fourth, the possibility of
enforcement, in a context of complex inter-eth- Water management in practical, local reality has
nic relations, remains to be seen. shed light on many issues encountered in the
laws analysed here. This portrays a world that is
not ideal but intensely complex, with day-to-day
conflicts about water management at all levels,
in all areas and localities. I would simply like to
point out that these lawmaking endeavours
address the deontology and therefore the ideal
of water management ethics. Furthermore, com-
munities do achieve meaningful social control; for
example, community work and organizational
forms have enabled the indigenous peoples of
Ecuador to maintain their culture and resist REFERENCE LIST

oppression. This does not, however, imply by any Asamblea Nacional Constituyente [National Constitutional
means that their community model is perfect. Assembly], 2003, Constitución Política del Ecuador. [National
Constitution of Ecuador]. http://www.corpei.ec
CEPCU, 1999, Model Community Regulations. Otavalo,
Customary law is one way to deal with policy and Ecuador.
law that, within the framework of respect for the
Clavero Bartolomé, 1994, Derecho Indígena y cultura
norms of indigenous cultures, can contribute to constitucional en América. Siglo XXI Editores, Mexico City.
building a more equitable country and ensuring
Clavero Bartolomé, 2000, Ama llunku, Abya Yala.
social, sustainable management of natural Constituyencia indígena y código ladino por América. Centre
resources. for Political and Constitutional Studies, Madrid, Chapter
One. 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 Nationalities
and Peoples. Word document, Indigenous Affairs
Commission, National Congress of Ecuador, Quito.
CONAIE, 1998, Political Proposal of the Confederation of
Indigenous Nationalities of Ecuador. Quito.
ECUARUNARI, 1998, Law on Indigenous and Rural
Communities of Ecuador. Quito.
Gomez Magdalena, 1997, Indigenous Law. National
Indigenous Studies Institute, Mexico City.
170 Noboa Gustavo, 2003, Programme for Irrigation and

Recovery of Degraded Land. Executive Decree 3609, 20
March 2003, Official Gazette, Special Edition No 1, Unified
Text of the Secondary Legislation of the Ministry of
Agriculture and Livestock, Quito.
Ulcango Ricardo, 1998, Presentation on the Law of
Indigenous and Rural Communities of Ecuador, Quito.
ENDNOTES
(1) See also Appendix 1.
(2) CONAIE, Law on Indigenous Nationalities and Peoples, 2002.
(3) Article 191: The indigenous peoples’ authorities shall
perform functions of justice, enforcing their own norms and
procedures to resolve internal conflicts pursuant to their
customs or customary law, providing this is not contrary to the
Constitution or the Law. The Law will make these functions
compatible with the national judicial system. (CPE, 1998)
(4) See also Appendix 2.
(5) Regarding water management, governmental
institutions, administrative procedures to obtain water
usage rights, conservation of water resources, water
pollution, dumping permits and concessions, priorities for
concessions, budget and jurisdictional institutions.
(6) I am referring to the de-codification carried out by the
indigenous peoples who acknowledged that their
citizenship statuses are different, have undertaken
lawmaking with an eye to profoundly change the State and
the Law, while it remains necessary to reform the existing
State in response to the plurality of stakeholders in Ecuador.
APPENDIX 1 (1): Comparative chart, Andean Positive Law on environment

and indigenous peoples(2).
ADMINISTRATION OF JUSTICE AUTHORISATION AND CONSULTATION

TO EXTRACT NATURAL RESOURCES
BOLIVIA
Article 171: (…) III. The native authorities of indigenous and
BOLIVIA
rural communities may perform functions of administration
No specific provisions on authorisation or consultation prior
and enforcement of their own norms, as alternative conflict
to using indigenous peoples’ natural resources.
resolution, pursuant to their customs and procedures,
providing the latter are not contrary to this Constitution or
CHILE
the Law. The Law shall make these functions compatible
with the powers of government authorities.
CHILE
COLOMBIA
No specific provisions regarding indigenous peoples and
Article 330: Pursuant to the Constitution and the Law,
administration of justice.
indigenous territories shall be governed by councils formed
and regulated according to the usage and customs of their
COLOMBIA
communities, performing the following functions: (…).
Article 246: Indigenous peoples’ authorities may perform
Sub-section: Natural resources shall be extracted from
judicial functions within their territory, pursuant to their
indigenous territories without harming indigenous
own norms and procedures, providing that they are not
communities culturally, socially or economically. In decisions
contrary to the Constitution or Laws of the Republic. The
made regarding such extraction, the Government shall
Law shall establish the ways to co-ordinate this special
encourage participation by representatives of the respective
jurisdiction with the national judicial system.
communities.
ECUADOR
ECUADOR 171
Article 191: (…) Indigenous peoples’ authorities shall
Article 84: The State shall recognize and guarantee
perform functions of justice, applying their own norms and
indigenous peoples, pursuant to this Constitution and the
procedures to resolve internal conflicts according to their
Law, respect for public order and human rights, the
customs or customary law, providing this is not contrary to
following collective rights: (…)
the Constitution or the Law. The Law will make these
5. To be consulted on plans and programmes for prospecting
functions compatible with the national judicial system.
for and extracting non-renewable resources found in their
land, which could affect them environmentally or culturally,
PERU
to share in benefits yielded by these projects, when possible,
Article 149: Rural and native community authorities, with
and to receive indemnity for socio-environmental damage
support from Rural Committees [Rondas] may perform
caused to them.
judicial functions within their territory pursuant to
customary law, providing they do not violate individuals’
PERU
fundamental rights.
The law establishes the ways to co-ordinate this special
jurisdiction with the Justices of the Peace and other agencies
of the Judicial Branch.
VENEZUELA
Article 120: Natural resources shall be extracted from
VENEZUELA
indigenous habitats by the government without harming
Article 260: The legitimate authorities of indigenous peoples
them culturally, socially or economically and shall also be
may enforce, in their habitat, justice based on their ancestral
subject to prior information and consultation with the
traditions, solely affecting their members, according to their
respective indigenous communities. Benefits of such
own norms and procedures, providing they are not contrary
extraction by the indigenous peoples shall be subject to the
to this Constitution, the Law or public order. The law will
Constitution and the Law.
determine the way to co-ordinate this special jurisdiction
with the national judicial system.
NATURAL RESOURCES ENVIRONMENT

BOLIVIA BOLIVIA
Article 171: I. The social, economic and cultural rights of the No specific provisions on the environment.
indigenous peoples living within the Nation’s territory are
recognized, respected and protected by Law, especially CHILE
those regarding their community lands of origin, No specific provisions on indigenous peoples and the
guaranteeing usage and sustainable utilisation of natural environment.
resources, their identity, values, languages, customs and
institutions. COLOMBIA
No specific provisions on indigenous peoples and the
CHILE environment.
No specific provisions on indigenous peoples’ rights over
natural resources. ECUADOR
Article 84: The State shall recognize and guarantee
COLOMBIA indigenous peoples, pursuant to this Constitution and the
Article 330: Pursuant to the Constitution and the Law, Law, respect for public order and human rights, the
indigenous territories shall be governed by councils formed following collective rights: (…)
and regulated according to the usage and customs of their 5. To be consulted on plans and programmes for prospecting
communities, performing the following functions: (…). for and extracting non-renewable resources found in their
Sub-section: Natural resources shall be extracted from land, which could affect them environmentally or culturally,
indigenous territories without harming indigenous to share in benefits yielded by these projects, when possible,
communities culturally, socially or economically. In decisions and to receive indemnity for socio-environmental damage
made regarding such extraction, the Government shall caused to them.
encourage participation by representatives of the respective Article 86: The State shall protect the public’s right to live in
communities. a healthy and ecologically balanced environment, that will
guarantee sustainable development. It shall ensure that this
ECUADOR right is not affected and shall guarantee the conservation of
Article 84: The State shall recognize and guarantee Nature.
indigenous peoples, pursuant to this Constitution and the
172 Law, respect for public order and human rights, the PERU
following collective rights: (…) Article 67: The State sets national environmental policy. It
4. To share in the use, usufruct, administration and promotes sustainable use of natural resources.
conservation of renewable natural resources found in their Article 68: The State is obliged to promote conservation of
land. biological diversity and protected natural areas.
5. To be consulted on plans and programmes for prospecting
for and extracting non-renewable resources found in their VENEZUELA
land, which could affect them environmentally or culturally, Article 120: Natural resources shall be extracted from
to share in benefits yielded by these projects, when possible, indigenous habitats by the government without harming
and to receive indemnity for socio-environmental damage them culturally, socially or economically and shall also be
caused to them. subject to prior information and consultation with the
PERU extraction by the indigenous peoples shall be subject to the
Article 66: Natural resources, renewable and non-renewable, Constitution and the Law.
are the Nation’s property. The State is sovereign in utilizing
them.
The organizational law sets the conditions for utilisation
and for particular grants. Concessions grant bearers real
rights, subject to that legal norm.
VENEZUELA
Article 120: Natural resources shall be extracted from
indigenous habitats by the government without harming
them culturally, socially or economically and shall also be
subject to prior information and consultation with the
extraction by the indigenous peoples shall be subject to the (1) On the basis of a matrix by Raquel Irigoyen-Fajardo
Constitution and the Law. (www.tanet.net) and the Andean Jurists’ Commission
(www.cajpe.org.pe), a partial comparison of Andean
Constitutions regarding indigenous rights.
(2) Source: Andean Commission of Jurists (RIJ) Indigenous
Peoples (www.cajpe.org.pe).
APPENDIX 2: Norms of the Proposed Law on Indigenous Nationalities

and 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 the
Commission on Indigenous Affairs in 2001)
Art. 10. The power of the indigenous authority that the Art. 33. All projects for infrastructure, prospecting, exploration
nationality or people recognize as legitimate, as granted by and extraction of natural resources, tourism and those others
their own customary law, over the territories of their referred to in Article 28 of this law shall require
community property, and those of ancestral possession, shall environmental, socio-cultural and economic impact studies
be respected; moreover, they shall have the following powers: and shall provide for measures to prevent harm to people,
2. To establish the collective community’s participation in property and the environment, as well as mechanisms and
management, usage and utilisation thereof. actions to repair and / or indemnify for damage that may occur.
3. To prepare and approve, with citizens’ participation, plans,
programmes and projects for development and ongoing Art. 39. Indigenous nationalities and peoples shall
improvement of the inhabitants’ quality of life. participate, with the right to speak and to vote, through
4. To administer renewable natural resources found within their representatives, in all governmental institutions with
their boundaries and to regulate access thereto and rational sectoral membership, as well as regional, provincial, and
use and utilisation thereof. canton-level institutions, having the responsibility for
5. To regulate use and utilisation of waters originating and studying and setting State policies in activities that the State
running within the boundaries of their territory. has undertaken pursuant to the Constitution and the Law,
6. To authorize transfer of use and usufruct of individual such as natural resources, biological diversity, natural
ownership of lots of land within their community or reserves, protected areas, national parks, tourism,
ancestrally possessed land. electromagnetic spectrum, electrical power, etc.
7. To resolve conflicts that arise regarding boundaries, Art. 40. Indigenous nationalities and peoples shall appoint
possession, easements, succession, donation and others that representatives for the following institutions: the Technical
come up in regard to individual property referred to in the Body responsible for the National Planning System, the 173
previous item. National Educational Council, the National Health Council, the
Transfer of use and usufruct by the indigenous authority, National Water Resource Council, the National Council on
pursuant to their own customary law, and the resolutions Children and Adolescents, the Board of Directors of the Home
issued under items 6 and 7 hereof, shall be put in writing by of the Ecuadorian Culture, the National Agrarian Development
the same authority and notified to the property register of the Institute, Energy and Mines, the Board of Directors of
canton for registration, and shall constitute sufficient title. PETROECUADOR, and other national agencies with sectoral
Art. 19. Powers and rights regarding territories of indigenous representation, responsible for studying and setting State
nationalities and peoples comprise community property, policies in the activities that the State has undertaken pursuant
ancestral possession, administration, conservation, use and to the Constitution and the Law, such as natural resources,
usufruct of renewable natural resources for communities’ biological diversity, natural reserves, protected areas, national
collective benefit, and conservation and promotion of parks, electromagnetic spectrum, electrical power, etc.
practises regarding management of biodiversity and the
Art. 47. Infrastructure and public service, transport,
natural environment.
sewerage, water supply, and in general environmental
Art. 24. All plans, programmes and projects for prospecting, sanitation projects shall be the responsibility of central
exploration, or extraction of renewable and non-renewable government institutions and of autonomous sub-national
natural resources found in the territories or lands of governments, with involvement of indigenous nationalities
nationalities and peoples or that could harm them or their and peoples in preparing and implementing the projects.
members, or affect the environment, must be consulted on
Art. 50. Administration of public services – water supply,
with them. For this purpose, the respective information shall
sewerage and / or environmental sanitation – shall be the
be delivered to the indigenous authority with competent
responsibility of indigenous nationalities and peoples within
jurisdiction according to customary indigenous law and
their jurisdiction, in co-ordination with local governments.
subsidiarily in the by-laws. The information shall be
accompanied by studies and details that make it possible to Art. 51. To administer public services, the responsible
foresee environmental, cultural, social and economic effects. nationalities or peoples may form community or self-managed
enterprises such as water supply administrative boards,
Art. 28. All plans, programmes or projects of infrastructure,
involving non-indigenous persons when the parties so agree.
tourism, prospecting, exploration or extraction of natural
resources taking place in territories of community property Art. 63. Own resources also include those from direct utilisation,
or ancestral possession of indigenous nationalities or peoples by community enterprises or through concession contracts, of
and direct areas of influence, shall provide for their sharing renewable natural resources, over which they have jurisdiction
in the benefits yielded thereby. for administration, conservation and extraction.
174
Indigenous Peoples Kyoto Water Declaration
175
Indigenous Peoples
Kyoto Water Declaration
Third World Water Forum, Kyoto, Japan, March 2003
Relationship to Water depleted or converted into destructive uses

through the diversion and damming of water
1. We, the Indigenous Peoples from all parts of systems, mining and mineral extraction, mining
the world assembled here, reaffirm our relation- of groundwater and aquifers for industrial and
ship to Mother Earth and responsibility to future commercial purposes, and unsustainable eco-
generations to raise our voices in solidarity to nomic, resource and recreational development,
speak for the protection of water. We were placed as well as the transformation of excessive
in a sacred manner on this earth, each in our own amounts of water into energy. In the tropical
sacred and traditional lands and territories to southern and northern forest regions, deforesta-
care for all of creation and to care for water. tion has resulted in soil erosion and thermal
contamination of our water.
2. We recognize, honour and respect water as
176 sacred and sustaining of all life. Our traditional 5. The burning of oil, gas, and coal, known collec-
knowledge, laws and ways of life teach us to be tively as fossil fuels, is the primary source of
responsible in caring for this sacred gift that con- human-induced climate change. Climate change,
nects all life. if not halted, will result in increased frequency and
severity of storms, floods, drought and water
3. Our relationship with our lands, territories and shortage. Globally, climate change is worsening
water is the fundamental physical, cultural and desertification. It is polluting and drying up the
spiritual basis for our existence. This relationship subterranean and water sources, and is causing the
to our Mother Earth requires us to conserve our extinction of precious flora and fauna. Many
freshwaters and oceans for the survival of present countries in Africa have been suffering from
and future generations. We assert our role as care- unprecedented droughts. The most vulnerable
takers with rights and responsibilities to defend communities to climate change are Indigenous
and ensure the protection, availability and purity Peoples and impoverished local communities
of water. We stand united to follow and imple- occupying marginal rural and urban environ-
ment our knowledge and traditional laws and ments. Small island communities are threatened
exercise our right of self-determination to pre- with becoming submerged by rising oceans.
serve water, and to preserve life.
6. We see our waters increasingly governed by
imposed economic, foreign and colonial domi-
Conditions of Our Waters nation, as well as trade agreements and commer-
cial practices that disconnect us as peoples from
4. The ecosystems of the world have been in the ecosystem. Water is being treated as a com-
change and in crisis. In our generation, we see modity and as a property interest that can be
that our waters are being polluted with chemi- bought, sold and traded in global and domestic
cals, pesticides, sewage, disease, radioactive con- market-based systems. These imposed and inhu-
tamination and ocean dumping from mining to mane practices do not respect that all life is
shipping wastes. We see our waters being sacred, that water is sacred.
7. When water is disrespected, misused and 13. Member States of the United Nations and
poorly managed, we see the life threatening international trade organizations, international
impacts on all of creation. We know that our and regional financial institutions and interna-
right of self-determination and sovereignty, our tional agencies of economic cooperation are
traditional knowledge, and practices to protect legally and morally obligated to respect and
the water are being disregarded, violated and dis- observe these and other related collective human
respected. rights and fundamental freedoms. Despite inter-
national and universal recognition of our role as
8. Throughout Indigenous territories worldwide, caretakers of Mother Earth, our rights to recover,
we witness the increasing pollution and scarcity administer, protect and develop our territories,
of fresh waters and the lack of access that we and natural resources and water systems are systemat-
other life forms such as the land, forests, animals, ically denied and misrepresented by governmen-
birds, plants, marine life, and air have to our tal and international and domestic commercial
waters, including oceans. In these times of interests. Our rights to conserve, recreate and
scarcity, we see governments creating commer- transmit the totality of our cultural heritage to
cial interests in water that lead to inequities in future generations, our human right to exist as
distribution and prevent our access to the life giv- Peoples is increasingly and alarmingly restricted,
ing nature of water. unduly impaired or totally denied.
14. Indigenous Peoples interests on water and

Right to Water and Self Determination customary uses must be recognized by govern-
ments, ensuring that Indigenous rights are
9. We Indigenous Peoples have the right to self- enshrined in national legislation and policy.
determination. By virtue of that right we have Such rights cover both water quantity and qual-
the right to freely exercise full authority and con- ity and extend to water as part of a healthy envi-
trol of our natural resources including water. We ronment and to its cultural and spiritual values. 177
also refer to our right of permanent sovereignty Indigenous interests and rights must be respected
over our natural resources, including water by international agreements on trade and invest-
ment, and all plans for new water uses and allo-
10. Self-determination for Indigenous Peoples cations.
includes the right to control our institutions, terri-
tories, resources, social orders, and cultures with-
out external domination or interference. Traditional Knowledge
11. Self-determination includes the practice of 15. Our traditional practices are dynamically reg-
our cultural and spiritual relationships with ulated systems. They are based on natural and
water, and the exercise of authority to govern, spiritual laws, ensuring sustainable use through
use, manage, regulate, recover, conserve, traditional resource conservation. Long-tenured
enhance and renew our water sources, without and place-based traditional knowledge of the
interference. environment is extremely valuable, and has been
proven to be valid and effective. Our traditional
12. International law recognizes the rights of knowledge developed over the millennia should
Indigenous Peoples to: not be compromised by an over-reliance on rela-
• Self-determination tively recent and narrowly defined western
• Ownership, control and management of our reductionist scientific methods and standards.
traditional territories, lands and natural resources We support the implementation of strong meas-
• Exercise our customary law ures to allow the full and equal participation of
• Represent ourselves through our own institutions Indigenous Peoples to share our experiences,
• Require free prior and informed consent to knowledge and concerns. The indiscriminate and
developments on our land narrow application of modern scientific tools
• Control and share in the benefits of the use of, and technologies has contributed to the loss and
our traditional knowledge. degradation of water.
Consultation 20. We seek to establish a Working Group of

Indigenous Peoples on Water, which will facilitate
16. To recover and retain our connection to our linkages between Indigenous Peoples and provide
waters, we have the right to make decisions about technical and legal assistance to Indigenous com-
waters at all levels. Governments, corporations munities who need such support in their struggles
and intergovernmental organizations must, for the right to land and water. We will encourage
under international human rights standards the creation of similar working groups at the
require Indigenous Peoples free prior and local, national and regional levels.
informed consent and consultation by cultural
appropriate means in all decision-making activi- 21. We challenge the dominant paradigm, poli-
ties and all matters that may have affect. These cies, and programs on water development, which
consultations must be carried out with deep includes among others; government ownership
mutual respect, meaning there must be no fraud, of water, construction of large water infrastruc-
manipulation, and duress nor guarantee that tures; corporatisation; the privatisation and com-
agreement will be reached on the specific project modification of water; the use of water as a trade-
or measure. Consultations include: able commodity; and the liberalization of trade
• To conduct the consultations under the com- in water services, which do not recognize the
munities own systems and mechanisms; rights of Indigenous Peoples to water.
• The means of Indigenous Peoples to fully par-
ticipate in such consultations; and; 22. We strongly support the recommendations of
• Indigenous Peoples exercise of both their local the World Commission on Dams (WCD) on
and traditional decision-making processes, water and energy development. These include
including the direct participation of their spiritual the WCD report’s core values, strategic priorities,
and ceremonial authorities, individual members the “rights and risks framework” and the use of
and community authorities as well as traditional multi-criteria assessment tools for strategic
178 practitioners of subsistence and cultural ways in options assessment and project selection. Its
the consultation process and the expression of rights-based development framework, including
consent for the particular project or measure. the recognition of the rights of Indigenous
• Respect for the right to say no. Peoples in water development is a major contri-
• Ethical guidelines for a transparent and specific bution to decision-making frameworks for sus-
outcome. tainable development.
23. We call on the governments, multilateral

Plan of Action organizations, academic institutions and think
tanks to stop promoting and subsidizing the
17. We endorse and reiterate the “Kimberley institutionalisation and implementation of these
Declaration and the Indigenous Peoples’ Plan of anti-people and anti-nature policies and pro-
Implementation on Sustainable Development” grams.
which was agreed upon in Johannesburg during
the World Summit on Sustainable Development in 24. We demand a stop to mining, logging, energy
September 2002. and tourism projects that drain and pollute our
waters and territories.
18. We resolve to sustain our ancestral and his-
torical relationships with and assert our inherent 25. We demand that the World Bank, the
and inalienable rights to our lands and waters. International Monetary Fund (IMF), regional
banks like the Asian Development Bank, African
19. We resolve to maintain, strengthen and sup- Development Bank, Inter-American Development
port Indigenous Peoples’ movements, struggles Bank, stop the imposition of water privatisation or
and campaigns on water and enhance the role of ‘full cost recovery’ as a condition for new loans
Indigenous elders, women and youth to protect and renewal of loans of developing countries.
water.
26. We ask the European Union to stop champi- 32. We call on the States to respect the spirit of
oning the liberalization of water services in the Article 8j of the Convention on Biological
General Agreement on Services (GATS) of the Diversity as it relates to the conservation of tradi-
World Trade Organization (WTO). This is not tional knowledge on conservation of ecosystems
consistent with the European Commission’s pol- and we demand that the Trade Related Aspects of
icy on Indigenous Peoples and development. We the Intellectual Property Rights (TRIPS)
will not support any policy or proposal coming Agreement be taken out of the World Trade
from the WTO or regional trade agreements like Organization (WTO) Agreements as this violates
the NAFTA (North American Free Trade our right to our traditional knowledge.
Agreement, Free Trade Area of the Americas
(FTAA), on water privatisation and liberalization 33. We call upon the States to fulfil the mandates
and we commit ourselves to fight against such of the United Nations Framework Convention on
agreements and proposals. Climate Change (UNFCCC) and to ratify the
Kyoto Protocol. We call for the end of State finan-
27. We resolve to replicate and transfer our tradi- cial subsidies to fossil fuel production and pro-
tional knowledge and practices on the sustain- cessing and for aggressive reduction of green-
able use of water to our children and the future house gas emissions calling attention to the
generations. United Nations Intergovernmental Panel on
Climate Change (IPCC) that reported an immedi-
28. We encourage the broader society to support ate 60% reduction of CO2 is needed to stabilize
and learn from our water management practices global warming.
for the sake of the conservation of water all over
the world. 34. We will ensure that international and domes-
tic systems of restoration and compensation be
29. We call on the States to comply with their put in place to restore the integrity of water and
human rights obligations and commitments to ecosystems. 179
legally binding international instruments to which
they are signatories to, including but not limited
to, such as the Covenant on Civil and Political
Rights, the Covenant on Economic, Cultural and
Social Rights, International Convention on the
Elimination of all Forms of Racial Discrimination;
as well as their obligations to conventions on the
environment, such as the Convention on
Biological Diversity, Climate Convention, and
Convention to Combat Desertification.
30. We insist that the human rights obligations

of States must be complied with and respected by
their international trade organizations. These
legally binding human rights and environmental
obligations do not stop at the door of the WTO
and other regional and bilateral trade agree-
ments.
31. We resolve to use all political, technical and

legal mechanisms on the domestic and interna-
tional level, so that the States, as well as transna-
tional corporations and international financial
institutions will be held accountable for their
actions or inactions that threaten the integrity of
water, our land and our peoples.
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.
water and indigenous peoples
Indigenous peoples from all corners of the globe
continue to struggle for acknowledgement and
recognition of their unique visions of water,
both at home and in national, regional and
international forums. But almost without
exception, their voices remain obscured by a
mainstream discourse rooted in the conception
of water as a mere commodity. Water and
Indigenous Peoples is based on the papers
delivered on the occasion of the Second and the
Third World Water Forums (The Hague in 2000
and Kyoto in 2003). It brings to the fore some of
the most incisive indigenous critics of interna-
tional debates on water access, use and man-
agement, as well as indigenous expressions of
generosity that share community knowledge
and insight in order to propose remedies for
the global water crisis.
water and
indigenous peoples
Local and Indigenous Knowledge Systems

Water and Indigenous Peoples

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water and indigenous peoples

Indigenous peoples from all corners of the globe

Local and Indigenous Knowledge Systems

This book should be cited as:

Graphics and Cover Design

Acknowledgements (alphabetical order)

The designations employed and the presentation of material

For further information, please contact:

Mounir BOUCHENAKI, Walter ERDELEN,

Section 1. Struggles for Recognition

Section 2. Worldviews and Water Management

Section 3. Water Rights and National Legislation

Indigenous Peoples Kyoto Water Declaration 174

Introduction drawback. First, indigenous peoples risk to be

While customary law is specific to its locality,

Jeannette C. Armstrong, February 2003

Ladies and gentlemen, brothers and sisters of water,

Introduction Convention on Biological Diversity

International processes Another recent process was the World

Many of the sacred sites of indigenous peoples all

“Indigenous peoples have the right to self-determ-

Indigenous peoples’ interests on water and custom-

Self-determination includes the practice of our

The promotion of respect and observance of

International law recognizes the self-determin-

Governments should support the immediate

environment of the areas which the peoples concerned

(24) The World Wide Fund for Nature in their assessment of

To speak of indigenous peoples and water is to speak of cultural

not impose that policy as a condition for struc-

Similarly, if water is included in free trade

38 In summary, imposing laws, conditions on loans,

Starting with a brief overview from an Andean viewpoint, the authors

The Andes Many techniques were used by Andean women

The geo-morphological and climatic complexity

ated over hundreds of years, but nowadays set

Integrated, participatory management systems

Participatory institutions and societal oversight

Suitable economic policies

In former days, indigenous water property rights were taken away

Rutgerd Boelens is a researcher at the Department of Environmental Sciences / IWE, Wageningen

While this attention was lacking in the carefully

But at the same time, new opportunities for cus-

Fundamentally, a water right, more than just a

A closely-related dilemma involves the effective-

The nation-wide, uniform, legal recipe dictated Re-creation of water rights:

However, once the 20 indigenous communities

Indigenous communities are defending their

(4) “Taking ‘recognition’ as a point of departure implies that

Bustamante Rocio, 2002 Legislación del Agua en Bolivia.

Traditional respect and

Tiga-ipugaw nan danum… maanap; mawada…

IBesao representations of water reflect their

a simple ‘do not’ command that is replete with val-

Displeasing the nakinbaey results in it abandon-

These culturally proscribed behaviours are all part Ownership

allowed to divert water from its natural course, Irrigation

Water management systems

Kapusean East and Kapusean West. Kapusean

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