The concept of “uses and customs” is used broadly to describe indigenous governance systems. In this case, it refers to the traditional water rights and practices of indigenous Quechua-speaking communities in the Andes, although the concept is most developed in the Cochabamba Valley of Bolivia. In the Cochabamba Valley, agricultural production is dependent on irrigation, a technology introduced by the Inca in the fertile valleys in the Andes more than five hundred years ago. In these communities, water resources are managed collectively by associations of small farmers. Local leaders known as the jueces de agua (water judges) distribute water to each household in rotation based upon various criteria, including the contribution of labour services to the community and participation in the organization
In Bolivia, the notion of “uses and customs” became politicized under the threat of privatization. One of the reasons that water privatization in Cochabamba sparked a “water war” was because of the previous resistance of small farmers’ organizations dependent on irrigation who perceived that the monopoly provisions of the water privatization law passed by the Bolivian government (law 2066) threatened their traditional water rights. A few years before the law was passed, these associations had formed the powerful Federation of Small Farmers and Community Systems of Potable Water of Cochabamba (FEDECOR). Thousands of members of the FEDECOR joined the urban protests demanding the modification of the new water law to recognize their “uses and customs.”
In October 2004, the Bolivian government approved a new irrigation law (Law 2878), which was written with the participation of the FEDECOR. This innovative law grants indigenous communities, small farmers, and landholders the right to continue with their “customary uses” of the water sources (wells, dams, rivers and rainwater), protecting them from future assault by transnational corporations and private businesses. It prohibits the commercialization of water resources through the creation of markets of water rights (as occurred in Chile); recognizes the traditional collective rights of small farmers and their family members to water sources (not in terms of property rights, but right of access); and organizes the rural water sector on the basis of traditional territorial boundaries. Importantly, the law also created a new water authority called the National Irrigation Service (Servicio Nacional de Riego – SENAR) that includes participation and oversight by small farmers and major small farmer organizations.
The regulations that put the law into practice were passed by the Morales government in October 2006. Researchers are currently developing procedures to identify and register legal claims to water. By using state-of-the-art geographic information systems (GIS) and anthropological surveys, the Ministry is establishing a common database that will create a registry of traditional water rights, which will help eliminate future conflicts over water and guarantee that indigenous peoples, peasants and small farmers can exercise their ancestral claim to use the resource.
The new law has not been immune to criticism. As researchers Nancy Yañez and Susan Poats argue, “the concept of ‘equality’ upon which the communal system of water rights is based does not mean ‘equal.’” Decisions about which family gets how much water and when are subject to highly political and subjective criteria. Concerns have also been raised that the creation of a water registry will enshrine the rights of relatively privileged communities that already have access to water, and that the poorer communities will be excluded from the system on the basis of “uses and customs.” The example of “uses and customs” therefore represents some of the complicated social power dynamics related to definitions of community and communal control.
- How can we ensure that forms of “community control” are democratic to the fullest extent, and do not reinforce or worsen existing inequalities?
- What role can northern partners in water justice have in overcoming the potential pitfalls raised in the first question? Is there a role?
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