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Whose Water?

A Comparative Analysis of National Laws and Regulations Recognizing Indigenous Peoples’, Afro-descendants’, and Local Communities’ Water Tenure

Author: Rights and Resources Initiative & Environmental Law Institute

Date: August 20, 2020

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Clearly defined and legally secure freshwater tenure rights are essential to Indigenous Peoples’, Afro-descendants’, and local communities’ livelihoods and food security, as well as to countries’ efforts to achieve sustainable development priorities and ensure climate resilience. However, the extent of the legal recognition of these rights to water remains largely unknown and unmonitored. To date, the bundle of legal entitlements most critical for enabling communities’ water tenure security has not been fully articulated or endorsed through global guidance such as the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT).

This report presents an innovative, international comparative assessment on the extent to which various national-level legal frameworks recognize the freshwater tenure rights of Indigenous Peoples, Afro-descendants, and local communities, as well as the specific rights of women to use and govern community waters. The analysis stems from a collaboration between the Environmental Law Institute and the Rights and Resources Initiative—which hosts the world’s only research program dedicated to monitoring the status of community-based land, forest, and freshwater tenure rights—and will be expanded and updated over time.

The PowerPoint presentation from the “Whose Water” webinar on August 28, 2020 is available here in English, French, and Spanish. The webinar recording is available in English, French, and Spanish.

https://doi.org/10.53892/DRQB6907
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Key Findings

The analysis finds that, at a minimum, communities’ rights to use and govern freshwater exist in 14 of the 15 countries analyzed, but considerable legislative gaps and administrative burdens commonly hinder their ability to effectively manage and protect their freshwater resources. Notably, where communities’ legal rights to freshwater are dependent on their recognized land or forest rights—as observed in 25 of the 39 legal frameworks examined—such frameworks tend to provide stronger legal protection for both communities broadly and women in particular. Yet overall, procedural impediments often constrain communities’ abilities to lawfully use water for crucial livelihood and commercial purposes, discrepancies among national laws hamper the realization of communities’ water and land tenure security, and women’s rights to community waters are inadequately recognized. By harmonizing relevant water, land, and forest laws and policies in a gender-sensitive and integrated fashion, countries could address these legislative inconsistencies and oversights while meeting the livelihood needs and development priorities of Indigenous Peoples, local communities, and women within those communities.

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