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Exploring Water Tenure And The Benefits Of A Water Tenure Approach

World Water Congress 2015 Edinburgh Scotland
8. Water law at the national and international levels
Author(s): Stephen Hodgson (Rixensart
Stephen Hodgson, Environmental Lawyer

Keyword(s): Sub-theme 8: Revisiting water paradigms,


Tenure arrangements determine how people, communities and organizations gain access to the use of natural resources. Inadequate and insecure tenure arrangements increase vulnerability, hunger and poverty and the risk of conflict while also constraining economic growth: people are usually reluctant to invest without security of tenure. So why is it that in a world with increasing pressure on water resources that there is so little discussion of water tenure?

The main aim of this paper is to suggest that water tenure has the potential not only to improve our understanding of the complexity of the relationships between people and water resources but also to inform better policy making in respect of not only the allocation of water resources but also in terms of water governance. On 11 May 2012 the 38th Special Session of the Committee on World Food Security of the Food & Agriculture Organization of the United Nations (FAO) officially endorsed the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (the "VGGT").

When the process of developing the VGGT started it was originally envisaged that water, and thus water tenure, would also be included. In the end, as the title of the VGGT implies, water was left out. But why? As a resource water is clearly physically different to, say, land and forests, but the basic issues addressed by tenure arrangements are just as pertinent in a world of increasing pressure on water resource. In terms of the allocation of water resources such as debate as takes place is usually framed in terms of water rights. But apart from the act that there are so many different conceptions of water rights (under both of formal and customary law) that comparisons become difficult, the key point to note about tenure is that its scope is far broader than a narrow legal discussion of rights. Notwithstanding the eventual omission of water from the VGGT, FAO has continued to explore the issue of water tenure including commissioning of a series of national case studies for India, South Africa and Spain. Based on the research undertaken, this paper seeks to explore the notion of water tenure and the benefits of taking a 'water tenure approach' to the management, allocation and use of water resources. Its main findings are that not only is water tenure a potentially useful and relevant means of examining the relationships of people and groups with water resources but that it is in practice the main question that is of concern to water users: will I get my share of water? After first examining the notion of 'tenure', with a particular emphasis on land tenure, the paper sets out a preliminary typology of water tenure, which turns out to be surprisingly broad in scope, before mapping different types of water tenure arrangements to specific purposes for which water resources are used. After highlighting both similarities and differences between land tenure and water tenure, the paper next proposes a preliminary set of criteria for comparing and evaluating different types of water tenure arrangement namely security, equity, sustainability and efficiency. Next, just as land tenure and land tenure arrangements are intimately connected to questions of political economy and thus governance in the broadest sense, the paper makes the case that water tenure is key to improved water governance. Put another way unless there is a clear understanding of water tenure arrangements in a given context, attempts to somehow 'improve' water governance will be flawed. At a broader level the paper makes the case that water tenure offers a number of benefits of analyzing relationships with water resources. These include its holistic and non-prescriptive nature, the fact that it allows a more nuanced and less normative understanding of the topic, coherence with other basic resources, its inherently multi-disciplinary nature and finally, as mentioned above, the fact that water tenure takes an inherently bottom up approach to water resources management given its focus on the needs and interests of users. The paper concludes by setting out a number of basic elements of a water tenure approach including the notion of a water tenure assessment, a more explicit recognition of the need for policies on water tenure and the eventual adoption of voluntary guidelines by FAO or other international donors.

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