Barbara van Koppen International Water Management Institute

1. Formal water rights from a poverty and gender perspective: Deceit, discrimination and dispossession by design? Barbara van Koppen International Water Management Institute

2. presentation focus - 1 Global wave of water law revisions: • strengthened state ownership • administration-based water rights (or permits/licenses/ concessions systems

3. presentation focus - 2 • Poor rural agrarian societies in Sub-Saharan Africa (Tanzania, South Africa, Ghana, Zimbabwe, etc) • Largely underdeveloped water resources; high proportions of informal water users

4. 100% 90% 80% 70% 60% Percentage of Total Rural Use (%) 50% 40% 30% 20% 10% 0% 0% 20% 40% 60% 80% 100% Percentage of Rural Households (%) Line of Equity Combined Rural Water Use presentation focus - 3 • Dominant legacy of legal and institutional segregation (recognized for land, but not for water; hybrid rights) • Southern Africa: state ownership to redress colonial past (e.g., South Africa Gini water use 0.96) Nation-wide permit systems still have to include this majority Source: Cullis and van Koppen Gini in the rural Olifants basin, South Africa

5. presentation focus - 4 Learning lessons from Latin America (Mexico, Chile) • Lower proportions of informal water users claiming ‘indigenous water rights’ (e.g. Bolivia), or no informal users • ‘Rights by all water users’ Everybody, in principle, already included (?)

6. presentation conclusion Formal administration-based water rights systems in Sub Saharan Africa • (‘Permits’ as the state’s ‘hook’ to impose obligations: ) Jeopardize state regulation (e.g. taxation, information, and allocation) • (‘Rights’ as formal legal backing of one’s water use: ) Dispossess the informal majority by design

7. presentation recommendation - 1 Obligations: • Design targeted and enforceable obligations without rewarding the fulfilment of obligations with administrative rights

8. presentation recommendation - 2 Rights: allocate water by • Recognizing informal water regimes without any burden of proof; redressing indigenous rights from ‘second’ to ‘first’ class rights • Ensuring protection and compensation vis-à-vis newcomers, also in retrospect redressing inequities from the colonial past • Setting pro-poor allocation priorities • Establishing inclusive forums, building on existing conflict resolution • Reviving public investments in (small- and big-scale) infrastructure development to increase the pie for all

9. permits as a ‘hook’ for obligations taxation - 1 Taxation (T,SA, Mex) • Short-term: success among large users • Separate administrations • Disconnected from rights (Mex – fiscal; SA formally disconnected; T de facto disconnected) • Among scattered small-scale users: net loss in revenue generation (>> threshold of de minimis rights) (T)

10. permits as a ‘hook’ for obligations taxation - 2 Conclusion: • taxing easily administrable large users is feasible • no need to reward tax payers with more rights

11. permits as a ‘hook’ for obligationsinformation National/basin registration • Chile: only small proportion existing users registered decentralized; national register only for newcomers; for regularized users still in progress (Bauer) • Mexico every individual/company: 320,000+ (Garduno) • South Africa: 60,000; Tanzania Rufiji basin 1000+500; Uganda <400 • Hydrological information still unreliable and over-reported (‘mutual deceit’) and in inappropriate format (Mex, T, SA, )

12. permits as a ‘hook’ for obligationsallocation - 1 a. Among existing users: Increased water use: • No technical and institutional capacity to enforce ceilings among thousands of single users • Use of ‘average annual volumes’ for sharing low flows? • ‘A formal right for which I paid’ (T)

13. permits as a ‘hook’ for obligationsallocation - 2 b. For newcomers: • Permits ‘easy way in’, by lack of hydrological knowledge and/or weak enforcement (SA, T) • Compensation in case of zero-sum: • On basis of existing rights; no need for nation-wide permit systems (SA) • Do markets compensate better than other doctrines (prior appropriation, riparian, state control)?

14. permits as a ‘hook’ for obligationsallocation - 3 c. Increased conflicts • New layer of legalistic argument • Corruption and fraud, e.g. paper water rights trade

15. permits as a ‘hook’ for obligationsconclusion and recommendation Conclusion Formal administration-based water rights systems in Sub Saharan Africa (‘Permits’ as the state’s ‘hook’ to impose obligations: ) • Jeopardize state regulation (taxation, information, and allocation) Recommendation • Design targeted and enforceable obligations without rewarding the fulfilment of obligations with administrative rights

16. rights as formal claimscolonial legacy - 1 Legacy of colonial water legislation: state ownership and permit systems for private use right/property: dispossession vs. ‘prior appropriation’ (Caponera 1992) Spanish colonies: • 1493 Papal Bull ‘all new lands and waters to catholic kings’ and king’s permits France/civil law: classification as ‘public’ requires permits • First only, ‘floatable water’, then other waters in the public interest; after 1964 still categories of non-domanial water • French colonies: ‘very little is left to the public domain’ so all waters are declared as public waters requiring permits

17. rights as formal claimscolonial legacy - 2 UK/ ’res comunis omnium’ common law, riparian doctrine: • UK: nation-wide permit system only in 1963 • British colonies: dispersed, tied to skewed land ownership, partial permits • Zimbabwe: permit system from colonization onwards • Tanzania: permits since end 19th century; 1948 “the entire property in water within the Territory is hereby vested in the Governor, in trust for His Majesty as Administering Authority for Tanganyika […]; dormant till mid-1990s; enforcement with new, high fees

18. rights as formal claimscolonial legacy - 3 De minimis rights (micro-scale uses with manual devices) (Hodgson 2002) • ‘no great theoretical justification’ • ‘value judgment is made that takes account of the increased administrative and financial burden of including such uses within the formal framework, their relative value to individual users and their overall impact on the water resources balance’ • ‘it is hard to see how they provide much in the way of security’.

19. rights as formal claimsdispossession by design Ghana Water Resources Commission Act 1996 (Sarpong FAO) • ‘By a stroke of the legislative pen and policy intervention, proprietary and managerial rights which had been held from time immemorial by families, stools, and communities have been taken away from a people some of who probably had no prior knowledge of the matter’ • ‘the Water Resources Commission, in spite of its far sweeping powers with regard to water appropriation, would have to yield to the constitutional requirement of providing prompt, adequate, and effective compensation in accordance with Article 20 of the Constitution for the compulsory acquisition of customary water rights as obtains in the case of compulsory land acquisition by the state’.

20. rights as formal claimsdiscrimination by administration Communal customary water rights systems are impossible to codify and register as individual property Administrative procedures • Discriminatory conditions e.g. land ownership • Disproportionate efforts • Lack of information • Illiteracy, mobility • Gender – household based

21. rights as formal claimsredress in South Africa • Existing lawful use, also for former homelands; newcomers require license • National allocation priorities for redress • Compulsory licensing: taking water away from the ‘haves’ to the ‘have-nots’ without compensation • In hot-spots only • Legally: ‘General authorization’ for redress • Extensive verification and validation of water use

22. rights as formal claimsconclusion Formal administration-based water rights systems in Sub Saharan Africa (‘Rights’ as formal legal backing of one’s water use: ) • Dispossess the informal majority by design

23. rights as formal claimsrecommendation Rights: allocate water by • Recognizing informal water regimes without any burden of proof; redressing indigenous rights from ‘second’ to ‘first’ class rights • Ensuring protection and compensation vis-à-vis newcomers, also in retrospect redressing inequities from the colonial past • Setting pro-poor allocation priorities • Establishing inclusive forums, building on existing conflict resolution • Reviving public investments in (small- and big-scale) infrastructure development to increase the pie for all

24. Thank you b.vankoppen@cgiar.org