A right to water perspective

Transcription

1 Report Water source conflict in Nepal: A right to water perspective

2 The report was produced by Mr Rabin Lal Shrestha from WaterAid in Nepal with support from advocacy team members Ms Shikha Shrestha, Ms Anita Pradhan and Mr Govind Shrestha. Mr Richard Steele from WaterAid in the UK edited the report in partnership with the Federation of Water and Sanitation Users in Nepal (FEDWASUN). Ms Pragya Shrestha, consultant, contributed to the initial draft and Ms Linda Kentro from USAID Nepal provided valuable comments and suggestions in the draft report. The report should be cited as WaterAid in Nepal (2012) Water source conflict in Nepal: A right to water perspective It can be found in the document section of the WaterAid in Nepal country programme website A WaterAid in Nepal publication September 2012 WaterAid transforms lives by improving access to safe water, hygiene and sanitation in the world s poorest communities. We work with partners and influence decision-makers to maximise our impact. Cover picture: Discussion on water source conflict and community engagement in protecting water sources in Ilam. Picture: WaterAid in Nepal

3 Contents Executive summary 5 1. The right to water 7 2. Objectives and methodology of study Diverse reasons for emergence of conflict Availability of water sources and multiple usage Managing ego and revenge over past exploitation Dealing with political disputes Crossing of administrative borders Entitlement of water source ownership Shifting of liabilities and responsibilities Negative connotations of rights and conventions Increasing demands of community members with water sources Representation of women in managing conflict Materialism replacing a sense of community Community-based conflict management Conflict cause and effect analysis Mobilisation of social and political leaders Conflict management strategy Adoption of win-win and negotiation strategies Code of conduct Legal the last option of conflict management Conclusion 33

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5 Executive summary The importance of the rights to water and sanitation in ensuring people s wellbeing and dignity is increasingly acknowledged globally. These rights are included in the constitution under draft of Nepal, reflecting a political and financial commitment to increasing access to water in the country. Empowered local communities are also more aware of their rights than ever before. However, this increased awareness of the right to water is resulting in conflict over water sources and programmes. People are becoming vocal in their demands for safe water while communities, private landowners and local governments are often unwilling to provide or share water sources. To analyse this water source conflict in detail, WaterAid in Nepal, in partnership with the Federation of Water and Sanitation Users in Nepal (FEDWASUN), carried out a study covering 146 cases across 12 districts. The study showed an increasing trend towards water source conflicts in recent years. There were various reasons for this. The major cause was found to be increasing water scarcity, although disputes were also seen in areas where there was an abundance of water. It was found that 29% of conflicts arose because empowered communities did not want to share their water sources. Further reasons for conflict included political disputes, negative use of legal frameworks and the increased influence of urban societies on rural communities. A strong emphasis on the economic and political benefits of access to water was also noted. The analysis showed that some community members were taking steps to manage water source conflict, although women were often excluded from this process. Cause and effect analyses followed by stakeholder identification and consultation were being carried out to define compromising strategies and a code of conduct. Legal measures were also being investigated if there were no other options left to solve the conflict. The study opened up avenues for several other investigations. It indicated that more analysis is required in the area of community-based water source conflict management and water source-based climate change mitigation and adaptation. Recommendations included strengthening legal frameworks on water source ownership to avoid conflicts caused by misunderstandings around who owns a water source. Our findings indicated that Nepal faces a real challenge in translating the legal commitments made by the Government into action on the ground that will realise people s right to water.

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7 1 The right to water Eight of the ten highest mountains in the world are in Nepal. The Himalayas are the third greatest reservoir of water globally after the snow mass of the North and South Poles. It is estimated that 3% of Nepal is covered by water in the form of rivers, lakes and ponds. However, in a country abundant with water sources, water scarcity is rising. Water is essential for life and therefore extremely valuable. It is a foundation of poverty reduction and crucial for wellbeing and development. There is also growing global recognition of the role of the rights to water and sanitation in ensuring people can live with dignity. These rights are intended to provide everyone with adequate, safe, attainable and affordable water and sanitation without discrimination or predisposition. Water as a basic human need was first formally recognised at the United Nations Water Conference in Mar del Plata, Argentina, in An action plan stating everyone had the right to access drinking water based on their basic need was later confirmed in Agenda 21, adopted at the United Nations Conference on Environment and Development in The Committee on Economic, Social and Cultural Rights adopted General Comment No 15 on the right to water in November The right to water was defined as the right of everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. It should be noted that the International Covenant on Economic, Social and Cultural Rights did not mention the right explicitly but the committee recognised the essential nature of the right to water as a basic element of the right to an adequate standard of living, the right to adequate food and the right to health.

8 8 Emerging water source conflict in Nepal: An analysis from water right perspective In 2006, the Sub-commission on the Promotion and Protection of Human Rights adopted guidelines for the realisation of the right to drinking water. Article 12 (2) of the International Covenant General Comment No 15 and the Sub-commission Guidelines, taken together, explain that the rights to water and sanitation include the following: Sufficient water: Water supply for each person that is continuous and sufficient for personal and domestic uses, which normally include drinking, personal sanitation, washing clothes, food preparation, and personal and household hygiene. The World Health Organisation (WHO) estimates that between 50 and 100 litres of water per person per day is needed to meet most basic and hygienic needs. Clean water: Safe water that, in particular, is free from hazardous substances that could endanger human health, and has a colour, odour and taste that is acceptable to users. Accessible water and sanitation: Water and sanitation services and facilities that are accessible within, or in the immediate vicinity of, each household, educational institution or workplace, are in a secure location and address the needs of different groups, in particular threats to the physical security of women collecting water. Affordable water and sanitation: Water and sanitation that can be secured without reducing any person s capacity to acquire other essential goods and services, including food, housing, health services and education. Access to information and participation: Each policy, programme or strategy concerning water and sanitation is to include, as an integral element, the right of all people to participate in decision-making processes that may affect their rights. Special efforts are to be made by governments to ensure the equitable representation in decisionmaking of marginalised groups, in particular women. Communities have the right to determine what type of water and sanitation services they require and how to manage those services. All people will have full and equal access to information concerning water, sanitation and the environment. Accountability: Persons or groups denied their right to water and sanitation have access to effective judicial or other appropriate remedies, for example courts, national ombudspersons or human rights commissions. on Economic, Social and Cultural Rights on the right to health was extended to the underlying elements of health, including access to safe drinking water and sanitation. General Comment No 15 and the Subcommission Guidelines provided definitions of sufficient, clean, accessible and affordable water and sanitation to support the realisation of the rights to water and sanitation. The right to water is recognised in other human rights treaties as a basic factor affecting the right to an acceptable standard of living and the right to health. On 28 July 2010, the rights to water and sanitation were formally recognised in a UN resolution for the first time, and acknowledged as fundamental elements for protecting all human rights. The resolution demands states and international organisations increase financial investment, capacity building opportunities and technology transfer to support mainly developing countries in increasing access to safe, clean, accessible and affordable drinking water and sanitation for all. The United Nations Human Rights Council adopted a resolution affirming water and sanitation as human rights on September This resolution calls on states to develop appropriate

9 International human rights treaties detailing specific obligations related to access to safe drinking water and sanitation include: The Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979 (article 14 (2)). International Labour Organisation (ILO) Convention No 161 concerning occupational health services, adopted in 1985 (article 5). The Convention on the Rights of the Child, adopted in 1989 (articles 24 and 27 (3)). The Convention on the Rights of Persons with Disabilities, adopted in 2006 (article 28). tools and mechanisms, which may encompass legislation and finance, in a transparent manner, targeting more to vulnerable and marginalised groups to achieve the progressive realisation of the human rights to safe drinking water and sanitation. The Third South Asian Conference on Sanitation (SACOSAN III) Delhi Declaration in November 2008 recognised the rights to sanitation and water. Repercussions of the UN Resolution on Water and Sanitation were evident in the SACOSAN IV Colombo Declaration (April 2011) that stated the aim,...in light of the recent UN resolution recognising the right to sanitation, to work progressively to realise this in programmes and projects and eventually in legislation. Nepal is in the process of drafting a new constitution. Increased global recognition of water and sanitation rights has played an important role in advocating the relevance of Emerging water source conflict in Nepal: An analysis from water right perspective 9 these basic rights to the ability to live dignified and healthy lives. It has been reported that sanitation and water rights have been incorporated in the draft constitution. The constitutional provision would support in developing legal frameworks, periodic review and financial allocation for the sector. It could be argued as one step forward in redefining policy and commitments. Recognition of rights in black and white should be considered as the first step to creating a favourable environment for realising them. The state has the primary obligation to protect and promote human Two schools of thought on constitutional rights Pro-rights groups argue that having rights in the constitution has several benefits: Parliament becomes accountable and progress has to be reported to a parliamentary committee. During budget formulation, sectors relating to constitutional rights must be prioritised. While not necessarily judicial rights, constitutional rights can be prioritised and achieved progressively. Rights show the highest level of political commitment, adding value to advocacy and influencing and facilitating the realisation of services from a rights perspective. A second school of thought, promoted by spokespeople like the economist David Zetland, argues that: Constitutional rights alone cannot solve the water crisis. Rights are costly to formalise, having an impact on improvements to services. Rights can be effective only where there is a functioning government. It can be possible that political leaders commit but bureaucrats cannot not provide.

10 10 Emerging water source conflict in Nepal: An analysis from water right perspective rights. In general, there are three types of obligation: to respect, protect and fulfil. The obligation to respect requires the state to refrain from interfering directly or indirectly with the protection of the rights to water and sanitation. The obligation of protect makes the state responsible for preventing other parties from interfering with the rights to water and sanitation. Finally, the obligation to fulfil requires the state to adopt legislative, administrative, budgetary, judicial and other remedies to ensure full realisation of the rights to water and sanitation.

11 2 Objectives and methodology of study Water scarcity results from both the drying up of water sources and increasing demand. Empowerment at community level has increased as people are more aware of their rights regarding the protection of water sources for present and future use. As a result, conflict over the distribution of water has been growing rapidly. The main objective of our study was to explore means of protecting the right to water by mitigating water source conflict at the community level. Specific objectives were: To document emerging disputes at water sources and through the distribution network at local level. To analyse the roles played by different stakeholders in water source conflict transformation. To document the best practices around the mediation of water source conflict management at local level. Federation of Water and Sanitation Users in Nepal (FEDWASUN) members were mobilised to collect and review information on various stages of water source conflict in 12 districts: Ilam, Khotang, Dhading, Makawanpur, Kavrepalanchowk, Baglung, Parbat, Gulmi, Pyuthan, Kalikot, Baitadi and Doti. Brief information on water source conflict scenarios in 146 sites across these 12 districts was collected using questionnaires. Detailed information was collected in four situations: prevalence of conflict over a long period, conflict in its initial phase, conflict being resolved, and the absence of conflict. Information on the causes and effects of conflict, together with the roles of different stakeholders in managing conflict, was collected in conflict affected areas. In the sites where there was no conflict, the role of different stakeholders in promoting effective water source management and sustaining good practice was analysed.

12 12 Emerging water source conflict in Nepal: An analysis from water right perspective FEDWASUN representatives were provided with questionnaires for collecting the information with stakeholders at the community level. The local team members identified potential sites for collecting information as per the requirement of the study and the report was prepared using an agreed framework to ease compilation at the national level. FEDWASUN National Secretariat prepared the national report and more detail was added using analysis from the national consultant. The report was later edited and updated by the Advocacy and Research Team to ensure good quality reporting based on the findings on the ground and an analysis of rights at the national and global levels.

13 3 Diverse reasons for emergence of conflict The majority of the conflicts recorded represented cases from 2000 to The graph below indicates the increasing trend of water source conflict Availability of water sources and multiple usage Water scarcity was found to be a crucial reason for the increase in conflict over water sources in communities. The study revealed that only 26% of the sites had surplus water and were able to plan for further distribution to wider communities. The remaining 74% had sources that were extensively used or used to their maximum extent without any possibility of extension. An analysis of cases without conflict or solved conflict clearly indicated that water availability was the main factor in facilitating water source conflict management. An increasing trend of sources drying up was prevalent in almost all localities. There were incidences where water sources were being used by other communities far from the source as they did not have an alternative. These situations were stable as long as there was enough water for people dwelling near the source. The shrinking water availability forced the community living near the water source to curtail the distribution of water within their locality to other community members. Figure 1: Emerging trend of water source conflict Figure 2: Inter-linkage of conflict and water availability No conflict Solved conflict s 1990s 2000/10 Conflict 80 As per capacity% Less than capacity% New source%

14 14 Emerging water source conflict in Nepal: An analysis from water right perspective Small water sources not fulfilling community demands Daugha 6, Gairikhutta, is a village in Gulmi where there was a scarcity of water sources. Women had to travel long distances ranging from 15 minutes to 1 hour to fetch water. There was a small water source in another ward, Daugha 5, Dharapani. It was situated on private land and used for distributing water to a family of three and their agricultural land. Photo 1: Water source in private Photo 2: Agricultural field near the source The landowner did not agree to grant access to the source. He sold the land to a person who was also not ready to share the water source, as he wanted to use the water for his field. On visiting the water source, it was found that the source was very small for community distribution. Source conflict and infrastructure destruction Pachanali village in Doti district did not have a water source. Therefore, the community had used the water source of Garudhi, located in Bhuimara village, since The agreement to use the water source was based on a consensus meeting held among community members from two villages, the local administration and civil society. After 30 years, people from Bhuimara destroyed water distribution infra-structures such as intake tanks and pipe channels because, they argued, the water source was drying up and they could no longer afford to share. During our survey, the conflict had not been addressed despite efforts from local leaders, political representatives and civil society members. They were strongly of the opinion that the community near the source should be the first beneficiary. There were also incidences of communities destroying water distribution infrastructures. The conflict arising from scarcity was made worse in some instances by infrastructure being developed in one locality to meet the increasing demand for water. There was a well established belief that community members would extract more water if the system was upgraded. This belief became a reality when there was reduction in water flow after maintenance, leading to increased conflict among community members. It was easy to communicate the legal entitlement of drinking water having first priority over other uses of water. Although there was sometimes conflict over multiple usage of water among community members, they generally accepted that drinking water was the first, essential component. However, they were not in a position to sacrifice irrigation services as that affected their right to food. If the source was present in one community and they had to distribute water to another community curtailing their own irrigation services, then there was higher tendency for conflict.

15 Emerging water source conflict in Nepal: An analysis from water right perspective 15 Maintenance of water scheme leading to conflict Semjong village in Dhading district is populated mainly by Tamang, an ethnic community. Residents of Ward 3 and Ward 5 were using a water source at Chimarkhola, since 1985 and 1995 respectively. The water system in Ward 3 was maintained in 1998, reducing the water volume in Ward 5. This created conflict and despite interactions and consultations the communities could not find a solution. Constantly evolving issues of water source management Pala VDC in Baglung district comprises 622 households with 85% water coverage and 80% sanitation coverage. Dhuwa Khola water scheme was reported by the district development committee as an accomplished project during 2005 even though water distribution was not completed. FEDWASUN in Baglung encouraged community members to lobby the District Water Supply Office to raise awareness of the situation. With several rounds of discussion and negotiation, the government officials were ready to provide a 1,200m pipe and technical supervision to complete the project. In the course of inspecting the water source, there were two pipes; one was a small pipe directly connected to a nearby house belonging to a past village development committee chairperson who seemed to be highly influential. He had managed to add the extra pipe in such a way that he would first receive the water. The water would only flow through the other pipe when he would close a stop valve made using a wooden stick. He argued that it was agreed that the community would use the leftover water of his household as his was the nearest house to the source. It was quite unique to witness this kind of claim over the source despite the fact that he was not owner of the land where the water source was. He was strongly in favour of having a separate connection to the water source to ensure he would get more water than the community, affecting households including 12- Photo 3: Discussion at community 14 dalit households. After some argument, he seemed to agree to use the common connection with an arrangement to ensure good flow of water from the current water spot. He was not the only one to lay claim over the water source. There was also a young farmer who argued that, No one can use this water without giving water to irrigate my land. He was adamant that he did not want to suffer from low productivity in order to distribute water to other people. These cases clearly indicated that organisations like FEDWASUN should be constantly engaged with the community members to address new issues and debates over time.

16 16 Emerging water source conflict in Nepal: An analysis from water right perspective Conflict was reported both in scenarios where there was scarcity and an abundance of water. Therefore, it is not wise to expect that enough water would always solve cases of water source conflict. There were incidences of conflicts despite adequate water. It was revealed that local community members had become good at protecting their water source for future usage. They were found to be reluctant to share water with other communities, as they had witnessed drying up of sources that were used extensively by a larger population Managing ego and revenge over past exploitation The empowerment of marginalised communities, especially ethnic communities, could be considered as Nepal s biggest development achievement. Education is another booming development sector. The majority of empowered communities realised the relevance of education in their overall development. This realisation had benefited young people with educational opportunities. The combination of education and empowerment had increased the confidence of people in ethnic communities. However, empowerment was found to lead to conflict in some cases. While 29% of the conflicts studied arose due to disputes with the community, 14% were due to personal clashes. Empowered ethnic communities told of how the high class caste had previously exploited them due to their ignorance. In cases where ethnic communities had control of water sources, they did not want to share for free to the high caste community who at one time used to exploit them. They were quite sure controlling the water source was the easy means for taking revenge. Having a water source on private land or in a community was seen as a key asset that increased superiority and power. In some instances, conflict over using the water source raised questions about why there had not been prior consultation, requests and negotiation. There was an overall feeling that the owner of the land had the full right over the source and they could claim any amount for allowing use of the asset Dealing with political disputes In one of the communities we visited, someone joked, There is not even a single Nepali; there are just political cadres [radical activists]. In some cases the reasons for water source conflict are

17 Emerging water source conflict in Nepal: An analysis from water right perspective 17 Complexity of water source conflict Rate Kholsi Bhirkharka Gramin Khanepani Ayojana (Rural Drinking Water Project) was terminated due to water source conflicts between the community with the water source (Wards 5 and 6) and the community where the project was supposed to be implemented (Ward 8). The former community comprised mainly of Limbu, an ethnic caste, while the latter was dominated by Brahmin and Chhetri, so called high caste. The water source, situated in a forest in the community, was registered with due approval from Yom Bomjan, the former president of the community forestry. However, later the process of approval was questioned by the users of the community forestry and the president had to resign from his post. The new president was pressurised by the user committee to discontinue approval and the conflict had arisen between these two communities. The drying up of the source and the need for water for farming was the reason given by the people. In a formal discussion, water scarcity was put forward as the major cause of the conflict. However, informal side talks revealed that egos were also to blame, with the community members who had the water source believing they should be treated as superior while other communities should be begging for the water. The community with the water source was comprised mainly of ethnic people who felt they should prevent exploitation of their water sources by other communities comprising mainly of higher caste people. The conflict involved a complex mixture of caste issues, political ideologies, feelings of superiority, conventions designed to protect the rights of indigenous people, and the drying up of water sources in relation to increasing demand. Photo 3: Discussion at community easy to see such as water scarcity. However, others are less obvious, like the clashing of political ideologies. It was reported that a community affiliated to one party seemed reluctant to share a water source with another community that had different political ideologies. Where there were conflicting political perspectives it was found that even political leaders had difficulty convincing the community members to end their conflict. Conversely, if different community members belonged to the same political party it was relatively easy for political leaders to mitigate the conflict. The increased empowerment of communities has also added to conflict in some cases. Community members with high political awareness were more likely to challenge their political leaders.

18 18 Emerging water source conflict in Nepal: An analysis from water right perspective Emergence of conflict based on different political ideologies Bhelchada Silgadhi Drinking Water Project in Doti was a registered project under the national budget, provisioned through the National Planning Commission. The constituent assembly leader elected from the constituent area was a strong political leader from one of the prominent parties. He had made serious efforts in incorporating the project in the national budget. Around two lakh were invested in conducting the survey last year. In the current fiscal year, around 22 lakh were allocated to the water scheme. Bhelchada source was situated in Khaptad National Park and flowed along the Gaddhigad rivulet that passes through several villages, including Banaleskh, Kada Mandau, Gaihra Gaon, Sana Gaoun and Khir Sain. The water scheme was supposed to benefit those living in Dipayal Silgadhi, the district headquarters of Doti. The leader of an opposing political party filed a complaint against the project at the district council level highlighting the negative impact of the project on an existing hydropower project. The current capacity of the river is 45 litres per second and only a third of the capacity would be used. Difference in political ideologies was one of the main reasons for this conflict. It complicated the negotiation process and made managing the conflict difficult. Rural community safeguarding its water source In order to meet an increasing demand for water and address water scarcity in Baglung municipality, it was planned that a water source in Achete 1, situated in Bhimpokhara village, would be used. Rural community members were not happy with the idea of extracting water from the source for urban dwellers, as it could affect agriculture, the main source of their livelihood. There was a secret meeting of high calibre political party representatives on the top of a hill with no community involvement. The outcome of this meeting was that the water source would be used without their consent. The community were furious and strongly opposed progress without their consent. Photo 5: Water source in conflict The rural community members were empowered and in a position to prevent water being used by other communities. However, they were themselves using water that flowed from another community. They did not have an answer to the question of what they would do if one day people from the other community also revolted in a the similar way against the municipality leaders.

19 Emerging water source conflict in Nepal: An analysis from water right perspective Crossing of administrative borders In most instances, it was found that conflict arose when a water source was to be distributed across boundaries from one village or ward to another. 34% of the conflicts recorded were as a result of water crossing an administrative boundary. The villages studied were generally closed communities so it was relatively easy for them to argue that they would not provide water to other communities. However, social pressure often made communities compromise in providing water to their neighbours. The threat of social stigma did not apply when it came to distributing water to people in another locality further away. Diversity in political ideologies and ethnic backgrounds complicated the nature of the conflict further Entitlement of water source ownership Another contested issue was water source ownership. Individuals considered any water source on their private land as their own property. In most instances, the source would be purchased by the water scheme to be used within the locality of the source owner. Problems arose when they had to share the water source with other communities that could not afford to offer financial incentives. In most instances, water scarcity or the need to use water for agricultural purposes was given as the main reason for not allowing a privately The pain of sharing a water source Kavrepalanchowk district witnessed water source conflict due to the crossing of an administrative border. Around 150 people in Bangthali village, Ward 5, were using a water source situated in their own village. The conflict started when community members of another village, Madankundari, started using the same water source in The second village did not have a good water source of its own so claimed it had no option but to forcefully use the water source situated in the next village. The community owning the source argued that the water source was drying up so they did not want to share the water with other villages. Despite the intervention of village development committees the conflict could not be solved. There was a similar conflict around the Dharapani water scheme in Pyuthan district. The water source was situated in Ward 9 but the source was to be shared between Wards 7 and 9. The community members had different political ideologies so the issue became an argument between opposing party leaders. The role of civil society members was crucial in convincing both communities of the need to share the water source and realise the right to water in the villages.

20 20 Emerging water source conflict in Nepal: An analysis from water right perspective owned water source to be used. The source owners had often witnessed sources drying up when shared. In some instances, communities that had provided extensive water to other communities had been forced to change their agricultural patterns to ones that required less water. Ownership did not always mean having the source on private land. In some cases, Water source distribution leading to change in agricultural patterns The majority of rural community members in Achete, Baglung district, were against the idea of supplying water from their sources to the municipality. They had seen how extraction of water in nearby Malendi had affected agricultural patterns. The people there had suffered as there was not enough water for rice production. They had now switched to other crops like maize that required less water. However, maize was cheaper than rice reducing their income. After witnessing this, local people had become very cautious about expanding the distribution of their water source. Most of them argued that no one should extract water if it would affect their agricultural production, as it was the main source of their livelihood. Conflicting ownership of a water source A water source located in Lunkhu Deurali village, Parbat district, being used by 24 households had also been used by those in another village, Jyamire, for a long time. The issue of who owned the source had been raised almost 18 years ago and the communities were still struggling to resolve the issue. The situation was made worse as there were no other water sources in the vicinity. The conflict had deteriorated the communities relationship and made them distrust one another. influential community or political leaders were found to be benefiting more from the water source than others. It was difficult for community members to raise concerns about this inequity due to the high level of influence of the leader. In other instances, the ownership of the source was debated due to conflicting demands on the source. If community members had been using the source for a long time they believed themselves to be the owners of source despite the fact that it was situated in another community. There were various conflicts arising over the ownership of water sources. In all instances, one individual or community wanted to benefit more from being the owner of the source Shifting of liabilities and responsibilities There were instances of conflicts arising from disagreements over who was responsible for water sources and schemes. These issues occurred mainly between government officials and water scheme implementing agencies. Conflicts of this nature often prevented community members from benefitting from water schemes within the scheduled time period.

21 Emerging water source conflict in Nepal: An analysis from water right perspective 21 Conflicting responsibilities Chap Gaire Khanepani Ayojana was a water scheme implemented by District Development Committee(DDC) that was supposed to be completed in three years. Nearly one fourth of the expense was provided for catchment development. The project was handed over to the Rural Reconstruction and Rehabilitation Sector Development Programme (RRRSDP) and a re-estimation was carried out for feasibility. Unfortunately, the feasibility test result showed that the per capita cost was Rs 9,000, which exceeded the initial budget. As a result, the project was broken down into three different schemes. The community members were of the opinion that this breaking down of the community had harmed community solidarity and actually increased programme costs, as three water points were required rather than one. At the time of the report, the project seemed redundant as the RRRSDP did not continue with the project due to the high per capita cost and DDC argued that the project had been handed over and was no longer the responsibility of the local development authority Negative connotations of rights and conventions Ethnic community have tended to follow the Indigenous and Tribal Peoples Convention (1989), also known as ILO 169, stating that natural resources such as water sources should belong to local ethnic communities. In some cases ILO 69 has been used successfully to conserve sources for use by future generations of the people dwelling in the locality. However, there has been an increasing trend of social conflict between ethnic and non-ethnic community members as a result of this convention. It introduced the concept of establishing the people dwelling in an area as the tribal people to benefit from the convention, even if they belonged to so-called high castes. International Labour Organisation Convention 169 (ILO 169) Article The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. Article Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. Article The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

22 22 Emerging water source conflict in Nepal: An analysis from water right perspective According to the convention, safe drinking water was felt to be a priority over other uses of the water. Many people disagreed with this, arguing that they also needed water for agriculture. Therefore, there was conflict around the interpretation and value of these rights and conventions Increasing demands of community members with water sources Communities living in remote areas have often been viewed as innocent or ignorant people with little or no political voice. However, empowerment programmes and improvements to infrastructure have helped increase the scope of community members awareness in rural and small town areas. The media and community radio have also played a strong role in disseminating Increasing demands of communities with water sources Ilam municipality had proposed to use Gitang water source situated 31km away. There was no opposition from the community with the water source as the municipality had provided them with investments in road building, toilet construction, scholarships for bright students, medical allowances, support for forest conservation, irrigation, electricity distribution, and a watchman to protect the water source. The agreement with the community was made in collaboration with political parties, eminent people, local residents and municipality representatives. However, there has been a trend of increasing demands from the community and the municipality has no alternative but to meet them. information to these areas. Many were aware of the benefits received by communities in allowing government agencies or other communities to use the water sources in their locality. Also, non-governmental organisations had contributed in sensitising people on their rights to development and natural resources. These included the right to protect their natural resources not by limiting their use but by not sharing them with outsiders. In some instances, communities that were forced to share their resources with others presented a long list of demands to be fulfilled before allowing them to use the water source. This is becoming increasing common. It should be noted that a water source was found by many communities to be a great asset for use as a finance generation mechanism to ensure better development benefits and personal service packages. If the outsiders could fulfil their demands, sharing a water source could be a great opportunity for the development of the community. On the other hand, if rural and marginalised communities could not afford to meet these demands then they would never be able to access the water source.

23 Emerging water source conflict in Nepal: An analysis from water right perspective Representation of women in managing conflict In Nepal, it is typically women that collect water, manage household chores and look after sick or elderly family members. As such, if there is no easy access to water, it is women that suffer most. However, in the cases we recorded, women were rarely involved in discussions to manage water source conflict, with male community leaders taking the lead role. There are many reasons for this. In most of the rural areas, young men had moved away to find work leaving agricultural duties to women to take on in addition to their other responsibilities. Therefore, it was difficult for women to spare the time to be involved in community discussions. On returning to their communities, these young men often entered into disputes with little information about how daily life was being affected, complicating matters further. Many women had been empowered to raise their concerns. However, due to traditional social practices, it often remained difficult for them to argue against male Negligible presence of women in conflict management Women were less engaged than men in conflict management, with minimal participation in discussions. In the study, conducted across 144 sites, around 2,300 people were engaged in discussions and just 24% were women. In the field visits, carried out to collect more detailed information, there was a negligible presence of women in discussions around 2%. In higher level discussions women were often left out completely. There were very few incidences where women were able to raise their concerns. community leaders. In most conflict discussions women were only passive listeners as opposed to men who could be assertive and even aggressive in their position Materialism replacing a sense of community Improvements to infrastructure and other developments have resulted in traditionally remote communities being increasingly influenced by small towns and cities. During the study it was noted that the materialism usually associated with urban areas was now prevalent in rural areas, while the sense of community traditionally seen in rural areas was decreasing. This change was seen to be having an input into water source conflicts.

24 24 Emerging water source conflict in Nepal: An analysis from water right perspective Decreasing sense of community Janga Bahadur Balayar, a senior citizen in his early 70s, lost his son nine years ago. Janga s son had been involved in connecting the water distribution system in the community school. At the time, it was agreed that his household would also benefit from the scheme in appreciation of his hard work and as an incentive for him to take care of the water system. As the number of students increased, the old scheme was no longer sufficient for the school. It was decided that a new water scheme should be installed using the same source. Janga was President of the School Management Committee so he agreed to this necessary change. The registration papers for the old scheme had been lost so he registered the source again but in the name of the user committee where he was again appointed treasurer. Photo 6: Depressed and exhausted fighting with whole community Janga discovered that agreeing to the new scheme meant sacrificing the drinking water installed from the old scheme in his house. He was very angry and felt it was an insult to his family and his late son. This resulted in a conflict over the water source as everyone else in the community agreed he should be deprived of his existing connection.

25 4 Community-based conflict management The Thomas-Kilmann Conflict Mode Instrument (TKI) is a widely used assessment for understanding how different conflict-handling styles affect group dynamics. This tool can be useful in managing water source conflict. Figure 3: The Thomas-Kilmann Conflict Mode Instrument c o o p e r a t i o n Accommodating Avoiding Compromising Collaborating Competing a s s e r t i v n e s s 4.1. Conflict cause and effect analysis In the cases we recorded, there was no formal mechanism for conducting cause and effect analyses. Generally, people active in water schemes and those adversely affected by water source conflict were the ones who initiated preliminary discussions. The first step to carrying out an analysis was often informal discussions in tea shops or their homes. In some instances, these people visited the relevant water sources to gain more in-depth information about the conflict. These visits helped them stay up Stages of managing conflict at community level Stage 1: Conflict cause and effect analysis Stage 2: Identify and mobilise key social and political leaders Stage 3: Consultations for finalising conflict management strategy Stage 4: Adoption of win- win and compromising strategies Stage 5: Adhere to code of conduct Stage 6: Legal the last option of conflict management

26 26 Emerging water source conflict in Nepal: An analysis from water right perspective to date on the current stage of the conflict and the community perception towards the conflict and its management. These face to face interactions helped those involved to clarify their strategic positioning in managing the conflict Mobilisation of social and political leaders Figure 4: Sequence and discussion pattern on conflict management Consequences of sharing Cost and rewards for sharing Emergence Perception on conflict Causes of conflict Stakeholders Effect Influencing leaders and role Mitigation strategies Code of conduct Social justice parameters Change management strategies Community members informally identified the key stakeholders engaged in the conflict emergence and management. They discussed the possibility of encouraging leaders to play the role of negotiator in resolving the conflict. Most importantly, they identified a neutral or unbiased negotiator who could easily communicate with both sides to address the conflict. Neutral negotiator for conflict management Conflict in Rate Kholsi Bhirkharka Gramin Khanepani Ayojana caused termination of the scheme. As a result, community members dwelling in Ward 8 were deprived from gaining easy access to drinking water. They conducted a series of interactions and consultations among themselves and also discussed the matter with government agencies and political leaders. During the search for a good negotiator to address the conflict, they came across the Illam district chapter of FEDWASUN. Photo 8 : Community deprived of water sources Both the communities with a water source and those demanding access agreed that they should have representation in discussions with local leaders and village development committees.

27 Emerging water source conflict in Nepal: An analysis from water right perspective 27 Political leaders in managing the conflict Rato danda situated in Hastichaur Village, ward number 7, Gulmi district suffered from water scarcity as they did not have any water source. They were happy when people of Arkhale 8 provided them verbal consent for allowing them to use their water source. The source was in the private land and the owner started debating on why should he provide the water of his land to quench thirst of whole community? He argued that the source would not be sufficient for him and his nearby localities. He had also filed the court case against the community. When the argument started it was high time of maoist insurgency in the country. There were two different maoist area in-charges for Rato Danda and Arkhale. The private land owner also complained with the maoist in-charge of his locality. It again added another fuel of argument on not taking his prior consent to use the water source. He demanded that he would not allow to use water source without fulfilling demands of community members in his area. Community members of Rato Danda then organized field survey visit of the maoist in-charge who was overwhelmed to see the large water source that was sufficient for both communities. He immediately decided to go in favor of the thirsty community members and urged to end the debate and withdraw the court case. Photo 9 : Sharing experience of water source conflict management In most cases, communities chose more than one negotiator, approaching government representatives, political leaders, social leaders and media representatives, among others. Social and political leaders played a catalytic role in managing conflict at the community level. Generally, the high level of respect for these leaders put them in a strong position to persuade and negotiate with the community Conflict management strategy The people involved in water source conflicts were generally unwilling to be held accountable and play a role in managing the conflict. There was sometimes bitterness in the community, affecting their social harmony. Breaking promises affecting mutual trust An attempt was made to address water scarcity in the Baglung municipality using a water scheme in the rural community of Achete. In the early stage of consultation, the community with the water source was in favour of providing the water with some demands from their side. These conditions included the surfacing of a road, construction of a dam and providing support for infrastructure development. The municipality members initially agreed to the demands but later outwardly rejected them, using political connections and military force to access the water source. The rural people were frustrated by this situation and became determined that no one should touch their water source without their consent. Photo 10 : Witnessing aggressive conflict in community

28 28 Emerging water source conflict in Nepal: An analysis from water right perspective Managing conflict in the initial stages A water scheme based in Buipa 7, Budalek, Khotang district, served 1,500 community members in Rajapani village, Wards 2, 3, 4 and 7, since Decreasing water availability had raised concerns in Buipa village about the ability to share the water source with the Rajapani people. The former community forcefully cut the water supply, arguing that they could not share the water until they had sufficient for their own community. Consultations were held among the communities before the conflict escalated, and the relationship and the water distribution mechanism were damaged. Community consultations and interactions were supported to prevent negative effects on social harmony and water distribution mechanisms. Based on these community interactions, the best solutions that were affordable were selected Adoption of win-win and negotiation strategies Communities adopted various win-win strategies for managing water source conflict at the local level. They often compromised, sharing water sources so that other communities were not deprived from meeting their basic water needs. Compromises were not only made between drinking water use and agricultural productivity. In some instances, there was also negotiation around sharing a source for drinking. Sharing the benefits of a water source Nearly 900 people in Maidi village, Dhading district, had benefited from a water scheme connected to a water source in Ward 1 in the same village since Nearly 11 years after the scheme was established, the people near the water source raised the issue that they had to walk for hours to collect drinking water while people far from the source had much easier access. They forcefully disconnected the pipes that supplied the water. After several consultations, it was agreed that the scheme would be expanded to benefit all of the community members. The District Water Division Office and District Development Committee supported this expansion, agreeing the hours when the water would be distributed and putting a water guard in place to protect the source and ensure people abided by the agreement. A win for both parties A water scheme using the Rambhakhola source providing water for 3,500 people in Diktel village had been abandoned for three years since People living near the water source did not want to share the water as they were concerned about fulfilling their own water needs for agriculture. However, following a series of interactions and consultations facilitated by social and political leaders, they found a compromise. The community members realised that water was essential for drinking as well as for agriculture They agreed that they would use water pipe of 65mm instead of 90mm for drinking water purposes and would not use the drinking water scheme during the dry and agricultural seasons. With these points negotiated, the conflict was solved using a win-win strategy. Similarly, in Ilam Kolbung, the people agreed that they would use the water source economically and committed to support irrigation of the fields so that the villagers could use the water source both for drinking and farming. Kanachaur village in Ward 1, Doti district, had to use a water source in Ward 4. They agreed to provide the villagers with the water source with a separate tap for their irrigation purposes.

29 Emerging water source conflict in Nepal: An analysis from water right perspective 29 Sharing a source without any benefits Around 100 households in Bijuli, Pyuthan district, had to drink muddy water as they did not have a water source in their village. There was a water source in Dhairekharka but the people did not want to share it for fear that there would not be enough water left to meet their agricultural demands. After series of interactions and consultations organised by civil society organisations, political leaders and village development committees from both villages, there was agreement to share the water source. It took nearly five years to convince the villagers with the water source to share the water for drinking purposes. A similar case was recorded of a water source being shared by Majhkot and Jumrikanda villages benefitting 300 households in Dakhakwadi village, Pyuthan. This change in the mindset of the people was possible due to the active engagement of local development workers and political leaders. Such practice was also seen in Syuna village, Kalikot district. The water source was situated on private land in Ward 7. Conflict emerged when people from Ward 9 in the same village wanted to use the source and the landowner did not agree as he thought there would be a reduction in the water available for his farming needs. Consultations among the community convinced the owner to change his mind and allow both wards to use the water source. In some instances, community members accepted that drinking water should be provided to others, despite no discernable benefit to themselves. Social leaders and community mobilisers helped to make community members aware of the importance of drinking water as a basic human right. In most of cases, the owner of a water source would be willing to sell the source to the water scheme. However, convincing the community with the water source of the need to expand the scheme was essential for allowing the sale to go ahead smoothly. There were instances where the water source could not provide water access to more community members. In this Expanding the scope of a water project Marangdi Water Scheme in Gulmi district was providing drinking water to 1,800 households in Lumpek village, Wards 2, 3, 4 and 8. The scheme was established in 1978 supported by British Welfare. 35 years later, the population had increased and the water scheme could only support villagers in Ward 2. This led to conflict among the community. In 2007, it was agreed that the same funding organisation would provide additional support to expand the water scheme and benefit the deprived community members. case, stretching the water source was not possible, so the conflict was solved by exploring new water sources. Together with civil society and political leaders, village development committees and chief district officers had an important role to play in developing consensus on the use of water sources.

30 30 Emerging water source conflict in Nepal: An analysis from water right perspective Exploring new opportunities for expanding services Durgasthan, in Ward 7 of Baitadi district, used a water scheme from a source in Lachmare, benefitting 41 households. The water source was very small and was just sufficient to supply these community members. Conflict started when other community members demanded access to drinking water services from the same source. The village development committee and civil society members organised a series of interactions with the communities. The conflict was solved, with an agreement to install another scheme using a new water source. The community members received support to implement the new scheme and their water crisis was solved. Recognition of a community with a water source Nearly 200 households of Balting village, Ward 3, Kavrepalanchowk district, had benefitted from a water source in Chaite Kholsa since The water scheme was expanded in 2006 to provide water services to more community members. The community members near the water source were not happy as they were not consulted properly. They felt that the development agency had completely ignored them and there had been no consensus. The village development committee coordinated a series of interactions and in the presence of the Chief District Officer of Kavrepalanchowk the conflict was solved. There was an agreement to expand the water scheme but with the condition that the development agency should take written consensus from the community members if they wanted to expand the scheme further in future. In cases where rural communities had to share their water source with urban people, there was often a long list of demands. These included: Infrastructure development such as surfacing roads, and constructing schools and health posts. Allowances for medical services and education. Irrigation facilities pond construction, separate taps. Drinking water provision in households. Financial returns based on income from water distribution in the municipality. Section 3.8 highlights cases of increasing demands by communities in return for sharing a water source on their land Code of conduct A code of conduct was developed by some communities to minimise the risk of future conflicts. The code was drawn up in a series of interactions between those directly involved in the conflict, supported by civil society members, government representatives, and political and social leaders. A code of conduct often helped in securing the agreement between two parties and therefore in reducing future conflict. In some instances, the agreement and code of conduct were reviewed as the situation changed.

31 Emerging water source conflict in Nepal: An analysis from water right perspective 31 Code of conduct for the best use of a water source The Saunepani Patlekhola Padhero water source in Ramja village, Ward 6, Parbat district, provided drinking water to 50 households. These households had used the water for a long time but had not registered the source. In 1999, villagers in Ward 9 also wanted to use the source. However, those in Ward 6 did not allow the scheme to be expanded. A coordination committee was established to manage the conflict. Coordination meetings with different stakeholders facilitated by the committee helped to solve the conflict after two years. A code of conduct was developed to ensure the best use of the water in future and outline the punishment for misuse Legal the last option of conflict management Community members or others affected by water source conflict were found to have used a legal mechanism for protecting their drinking water rights in some cases. Affected people sometimes used the legal option where the whole community was against them and there was no one in the village to protect them from the consequences of the conflict. The legal method was usually the last option adopted when other means had been tried but had failed. Legal mechanism we only used in 8% of cases. Despite a national legal framework declaring state ownership of water resources, there were found to be challenges in translating these legal frameworks into practice. There was an increasing trend Early adoption of a legal mechanism Conflict arose around the Sisnekhola water scheme in Doti district when the existing scheme was not sufficient to meet needs of both the community school and nearby communities. The old scheme had been developed in such a way that it supplied water to just the school and the caretaker s family. The new scheme proposed did not have provision to supply water to this private household. As a result, the elderly caretaker would be deprived of his private connection that he had used for almost 15 years. He did not receive support from a single member of the community. This could have been because of his age or because of his opposing political ideology. He felt he had no option than to file an appeal letter to the village development committee. When that did not bring results, he also filed an appeal to the district administrative office to ensure his security and access to water. The community members were angry and determined not to let the man continue to get access to drinking water at home. They felt that he had been wrong to want to solve the conflict through legal means without discussing the matter with them first. So they united to oppose the man. of buying and selling of water sources in rural areas, as well as increasing demands from communities sharing sources.

32 32 Emerging water source conflict in Nepal: An analysis from water right perspective A last straw in water source conflict management A conflict broke out at the Rato dandawater water scheme in Hastichaur, Ward 7, as the owner of the source in Arkhale 8 did not want to share the water with other villagers. The community members and political leaders tried their best to convince the landowner to change his mind; however, he was not ready to hear their suggestions. He filed a case in the Appeal Court (Punarabedan Adalat). The court decision stated that water is public property and no individual can own the source. Therefore, the court ordered the continued construction of the water scheme allowing the distribution of drinking water in Rato Danda. The landowner took his case to the Supreme Court but the final hearing also approved the decision of the Appeal Court, stating higher priority of drinking water over irrigation. They declared that the community should be allowed to use the water source and that it was state property. Photo 11: The only house not benefitting due to conflict Photo 12: Community proud of having solved their conflict through legal means The Supreme Court decision cleared up any confusion and the community members continued construction of the water scheme. They provided drinking water to nearby communities but the landowner had not taken any benefit from the scheme. The community members were very proud that they had crossed and won series of the conflicting situations to gain access to drinking water. They said that the legal option should be the last straw of conflict management as it was costly. The suggested that the outcome of the case should be shared widely to raise awareness that a water source is state property and no private landowner should prevent its use to quench the thirst of whole communities. Water Resource Act 1992 (2049 BS) The Water Resource Act 1992 is an umbrella act governing water resource management in Nepal. The act declares state ownership over all water resources. It gives priority to the right to use water for drinking purposes over any other domestic or commercial use. Therefore, the use of water for commercial purposes by private groups and individuals is subject to licensing by the state.

33 5 Conclusion Water source conflicts can be extremely complex, with political, social and economic aspects. Techniques to manage these issues at the community level can be linked with the Dewey sequence: Figure 5: Dewey sequence of conflict management 1. Define the conflict 2. Examine possible solutions 6. Exit 3. Test the solution 5. Accept the solution 4. Evaluate the solution 5. Reject the solution Negotiators need to be aware of the different dimensions of conflict management. There is a need for a detailed water source conflict management manual for use by stakeholders actively engaged in dealing with these diverse issues. Conflict management approaches are discussed in the Sanitation and hygiene master plan of Nepal. The plan emphasises a coordinated approach to water, sanitation and hygiene (WASH) interventions, through mechanisms such as village, district and regional WASH coordination committees. These committees can play a significant role in managing water source conflicts at various levels together with active networks and organisations such as FEDWASUN.

34 34 Emerging water source conflict in Nepal: An analysis from water right perspective This report provides further evidence that there is an increasing demand for water despite the fact that water sources are continuing to dry up. It indicates that there is a need for further analysis to make recommendations for water source-based climate change mitigation and adaptation framework. Proposals on including the right to water in the constitution The Committee on Natural Resources, Economic Rights and Revenue Allocation proposes that an independent right to drinking water is included under fundamental rights: Every person shall, without discrimination, have the right to clean and healthy drinking water. The Committee for Fundamental Rights and Directive Principles also proposed that the right to water be included under fundamental rights within the right to health: Every citizen shall have the right to access clean (pure) drinking water and sanitation (cleanliness). (Section 20.5) There is no ambiguity in the statement that water source conflict transformation will help to protect and translate water rights into visible actions at local level. The right to water has been proposed for the draft constitution both by the Committee on Natural Resources, Economic Rights and Revenue Allocation and the Committee on Fundamental Rights and Directive Principles. Recognition of the right to water in the constitution can be seen as a crucial step guaranteeing political commitments and sector financing. Considering the increasing conflict surrounding ownership of water sources, the constitution needs to include legally binding legislation on state ownership of natural resources, as well as providing increased clarity on the priority of drinking water under the section of directive principles, polices and state responsibilities.

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36 36 Emerging water source conflict in Nepal: An analysis from water right perspective WaterAid transforms lives by improving access to safe water, hygiene and sanitation in the world s poorest communities. We work with partners and influence dicision-makers to maximise our impact. For more information, please contact: WaterAid in Nepal Kupondole, Lalitpur, Nepal GPO Box: 20214, Kathmandu, Nepal Telephone: / / Fax: [email protected]