Module

Water Rights, Water Justice

Module Progress:

Fresh water is essential for growing most crops, but the consequences of the water crisis go beyond just our food system. The scarcity of fresh water worldwide impacts all life on earth. However, those impacts are disproportionately distributed.  According the the UN,  “On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights.” Though the UN states that clean water is a human right, not all land and people are given access to that right. This module will explore the concept of “Water Justice” and give you a chance to hear from those fighting for it.

Excerpt 1: “Water Justice”

from Water and Culture Institute

Water Justice refers simultaneously to the right to use water and to the right to “enjoy” (in a legal sense) healthy water ecosystems that carry cultural and spiritual meaning.  The concept of water “rights” has been imposed on Indigenous Peoples by Western categories of ownership, and does not fit with the cultural realities of indigenous cultures and worldviews.  The concept of water “justice” is much broader, and acknowledges the connection between indigenous people (and, indeed, all humanity) with the natural world around them.  Controversies about sacred lands outside the legally acknowledged territories of indigenous peoples illustrate the distinction between “rights” and “justice”.  When the Isleta Pueblo Tribe in New Mexico sued the upstream city that was polluting their sacred river (the Rio Grande), they had to base their case on the legal framework about pollution and water quality standards.  There is no legal protection for the sacredness of the river itself.

The concept of water justice is fully consistent with the Western concept of environmental ethics and the rights of nature applied to water.  Adding the rights of indigenous cultures to the rights of nature builds a formidable alliance of interests.  Should the sacred lake be protected because of its religious meaning to the local indigenous communities, or because the lake has an inherent right to exist, or because the lake provides important wildlife habitat?  This is the situation of the fight to save Fish Lake in Western Canada.  The Tsilhqot’in peoples’ are fighting plans to drain Teztan Biny (Fish Lake) for an open pit gold mine.  They are basing their argument on their ancestral use of the lake both for subsistence and as an integral part of their sacred landscape. For details see the website of Raven Trust or watch the video, Blue Gold: The Tsilhqot’in Fight for Teztan Biny (Fish Lake).

Water justice for Indigenous Peoples requires communication across cultures and a willingness to unravel the underlying cultural assumptions about water.  Western legal systems normally include a provision recognizing the freedom to express any religious beliefs, but the notion of a lake or river possessing sacred qualities vital to religious expression clashes with the Western conviction that water is merely a material substance (unless it happens to be the water from a Christian holy place such as Lourdes in France).  This double standard about whether sacred waters deserve protection stems from ignorance about the cultural underpinnings of water laws and policies, and how Western cultural values are projected onto the natural world.  Exploring the dynamics of cultural values about water can lead to a more “water just” world.  That is the premise of the Water and Culture Institute.

Excerpt 2: “Water Rights and Indigenous Peoples”

from Cultural Survival, Winter 2005

The Right to Water

To begin, it is worth reminding ourselves that water is a basic human right; indeed it is a prerequisite for realizing all other human rights, including the right to life itself. The Committee on Economic, Social and Cultural Rights, the body established by the United Nations to authoritatively interpret the meaning of the rights set forth in the International Covenant on Economic, Social and Cultural Rights (ICESCR), has declared that the “human right to water entitles everyone to sufficient, safe, acceptable physically and affordable water for personal and domestic uses.” That right is available to all without discrimination of any kind.

Article 1, paragraph 2 of the ICESCR provides that a people may not “be deprived of its means of subsistence.” The Committee has declared that this right imposes on States the duty to ensure “that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.” The Committee further has declared that “water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations.”

In addition, the Committee calls upon States to give special attention to individuals and groups who have traditionally faced difficulty in exercising their right to water. In particular, States should ensure that:

Indigenous peoples’ access to water resources on their ancestral lands is protected from encroachment and unlawful pollution. States should provide resources for indigenous peoples to design, deliver, and control their access to water.

The burden falls on States to ensure that the right to water is respected. Not only must States refrain from interfering with the enjoyment of the right to water, they also must prevent third parties, such as large agricultural or corporate interests, from doing so. To ensure the right to water for future generations, States must adopt comprehensive and integrated water management strategies that may include:

  • reducing depletion of water resources through unsustainable extraction, diversion, and damming;
  • reducing and eliminating contamination of watersheds and water-related ecosystems by substances such as radiation, harmful chemicals and human excreta;
  • monitoring water reserves;
  • ensuring that proposed developments do not interfere with access to adequate water;
  • assessing the impacts of actions that may impinge upon water availability and natural-ecosystems watersheds, such as climate changes, desertification and increased soil salinity, deforestation and loss of biodiversity; and
  • establishing competent institutions and appropriate institutional arrangements to carry out the strategies and programmes.

These are the precise sorts of measures that indigenous peoples have called for in the Indigenous Peoples Kyoto Water Declaration, which they delivered at the Third World Water Forum in Kyoto, Japan, in 2003.

Violations of the Right to Water

As the articles that follow illustrate, where indigenous peoples’ rights to water are concerned, all too often, violations are the rule. Throughout the Andes, in India, and in the Philippines, indigenous peoples are facing increasing competition for their scarce water reserves from agricultural plantations, as well as hydroelectric, mining, and drinking water companies. In Chile, the government’s privatization of water, combined with its failure to provide its indigenous peoples with timely and adequate information about how to register their water rights, sold their right to water out from under them.

Similar abuses are illustrated from other parts of the world. On Black Mesa, the ancestral homeland of Hopi and Diné (Navajo) peoples in the American southwest, mining by the Peabody Coal Company has nearly depleted the aquifer on which Native Americans rely for their drinking water. Nearby, peoples from several indigenous nations have gone to court in an effort to stop a ski area from spraying reclaimed wastewater to make artificial snow on the sacred San Francisco Peaks. In the Pacific northwest, mercury from abandoned gold-rush era mines and PCBs and other contaminates dumped into rivers by the US military have polluted the water supply and made fish—a staple of the traditional diet—unsafe for human consumption.

Though not specifically addressed in this issue, CSQ has covered the impact of hydroelectric dams and other large-scale development projects in past issues. More recently a study, carried out by the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, found that where such developments occur in areas occupied by indigenous peoples, it is likely that their communities will experience profound and unforeseen social and economic changes that devastate their ways of life. Cultural Survival has previously reported on the situation of the Embera-Katio in Colombia, a portion of whose ancestral territories was flooded without their consultation in 1992 to build a hydroelectric dam. As a result, they were forced to move into an area that is heavily ravaged by the country’s ongoing armed conflict. Many of their homes and property have been destroyed, several of their leaders have been assassinated or forcibly disappeared, and many have been displaced for a second time as a consequence.

It is no exaggeration to say that violation of the right to water can lead to violent conflict. In Bolivia, for example, the government, at the behest of the World Bank, turned over management of the Cochabamba city water and sewage system to a single-bidder concession of international water corporations in 1999- 2000. Under the arrangement, which was to last for 40 years, water prices increased immediately from negligible rates to approximately 20 percent of monthly family incomes. Citizens’ protests were eventually met with an armed military response that left at least six residents dead. The protests continued until the consortium was forced to flee the country.

Of more immediate concern is the situation in Darfur, Sudan, where decades of drought and desertification have intensified competition for scarce resources, particularly water. State interference with traditional dispute resolution mechanisms, and the superimposition of highly corrupt state administrative agencies, compounded underlying intergroup tensions. Over time, these flared into anti-state sentiment that turned violent as a result of the rebels’ easy access to modern weapons. With its attention taken up by peace negotiations in the south of Sudan, the government turned to its supporters among Arab nomadic herders to act in its place. In short order this government-backed contingent, who lacked land and were looking to settle, became a marauding force, the Janjaweed. The Janjaweed has targeted the civilian population for infamous abuses that include mass murder, the burning of villages and displacement of entire communities, and the rape of women and girls. Nearly a year after massive international attention, the situation refuses to abate.

Free, Prior, and Informed Consent

For indigenous peoples, one of the most important aspects of the right to water is the obligation it imposes on States to involve them in the decision-making process when decisions that could impact their water rights are being made. The right to genuine public participation is underscored by the Committee on Economic, Social and Cultural Rights, is embedded in ILO Convention 169 on Indigenous and Tribal Peoples, and is an elemental part of all democratic and political rights-respecting regimes. The Chile and Bolivia cases cited above are but two examples of the consequences that can occur when States violate the consultative aspect of the right.

Indigenous Sustainable Solutions for Protecting Water

This issue contains far more than a litany of horrors about violations of indigenous peoples’ right to water. It also describes an array of successful tactics that indigenous peoples have innovated to meet their immediate water needs as well as those of future generations. In India, for example, indigenous women in the frequently drought ridden, and extremely poor, Nuapada region mobilized to press the government to ensure safe and adequate water delivery to their local villages. In the Philippines, the Kankanaey people of the western Mountain Province have adapted a traditional water sharing ritual to equitably distribute scarce water for irrigation agriculture.

In the United States, from educating the public by publishing articles in this magazine to going to court, indigenous peoples are demonstrating that peaceful, empowering educational and political activities can lead to positive, rights-protecting results. No doubt the World Water Forum will reveal many other strategies for sustainable water use and protection that can safeguard the right to water of indigenous peoples—and all people—for generations to come. Cultural Survival looks forward to the learning that will come from that meeting, and to contributing to the worldwide effort to ensure that those findings reach indigenous peoples and States everywhere.

Please watch one or more of the following videos:

Film 1: Water is Life – Indigenous Perspectives on Water

Film 2: Owners of the Water – Preview

Film 3: Colombia: Wayuu Gold, Fighting for Access to Fresh Water

Film 4: Water or Gold?

Film 5: Tambien La Lluvia Trailer

References (and further reading)

“Hydroelectric Dams,” CSQ, Vol. 12, No. 2, (1982)

“Land and Resources,” SQ Vol. 14, No. 4 (1990).

Report of the Special Rapporteur on the situation of human rights and fundamental freedom for indigenous people, E/CN.4/2003/90 (2003).

Indigenous Peoples and Violent Conflict, CSQ Vol. 29, No. 1 (2005).

Indigenous Responses to Plan Colombia, CSQ Vol. 26, No. 4 (2003).

Economic, Social and Cultural Rights Committee Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, (2002).

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General (25 Jan 2005).

Report of the Special Rapporteur on the situation of human rights and fundamental freedom for indigenous people, supra at paras. 37-43.

Optional:

Stand with Standing Rock

Bangladesh’s water crisis: A story of gender

 

FORUM QUESTION: WATER RIGHTS