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Communities & Water Rights: How Are They Faring?

'Who owns what water?’ remains a controversial question for rural communities across the world. During World Water Week, we should be searching for answers.

This week is World Water Week in Stockholm, the annual focal point for the globe’s water issues. Several thousand experts are meeting to discuss water issues from sanitation to acute shortages facing particular regions. In this year’s meeting, water tenure is receiving slight mention. Yet ‘who owns what water?’ remains controversial for thousands of rural communities who regard local waters as integral to their historical and present domains, and continue to govern these under customary rules. This includes coastal communities who traditionally hold foreshores, mangroves, and near-shore fishing domains, and inland communities depending upon groundwater, ponds, lakes, small rivers, and marshes for their livelihood.

The status of inland local waters is sometimes contentious for various reasons, but two factors – water ownership and water use rights - are at the root of the problem

WATER OWNERSHIP

In countries around the world, national water legislation provides that inland water is either the property of the state or a public resource held in trust by (often undemocratic) governments for their citizens. In sub-Saharan Africa, for example, resource laws in 44 of 49 countries (90 percent) stipulate that water is a state or public asset and the laws in three other countries imply this. Two-thirds of sub-Saharan countries do not recognize any private ownership of water. Yet a deeper look at these laws shows that many define a public asset as ownership by the national community in common, seeking a more equitable playing field (g. Ethiopia, Kenya, Tanzania, Lesotho, and Ivory Coast). However, in the process community rights may be jeopardized.

This African picture is reflected around the world; 57 of 67 water laws (85 percent) establish water as the property the state. Among the 10 water laws which do not make such claims, Aborigines in Australia and Sami in Finland and Norway are beneficiaries. In other cases a legal distinction is drawn between private and public waters sometimes with communities in mind.  For example, in Nicaragua, communal property is legally defined as including waters traditionally belonging to the community.

A hint that the issue of water tenure is changing is indicated in the consistency with which new water laws are moving towards nationalized ownership. Again, Africa provides an example. Twenty-two of 26 (85 percent) water laws examined are not older than 1990, twelve enacted since 2000. Several older water laws provide more clearly for water to be attached to land rights (e.g. Botswana, Malawi, and The Gambia). It is also noticeable that national Constitutions in Africa are less strident than water laws in declaring all waters to be national, state or un-ownable property. In fact, only 13 of 55 Constitutions in force today do so. While many governments have focused on creating water user associations, few have adequately addressed community-level water tenure.

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