ABSTRACT

Capacity for negotiation can and should be improved, building on experience and techniques from participatory irrigation management and alternative dispute resolution. Reforming water rights should be approached as a negotiated process, in contexts such as development projects, formalizing rights, basin management, or intersectoral transfer. Research is needed to better understand multiple, conflicting claims to water, and the problems and opportunities for improving water allocation.

INTRODUCTION

The preceding chapters have shown a variety of ways in which rights to water are negotiated and renegotiated in response to increasing competition. They illustrate the pluralism of contesting claims, among irrigators, between those using water in different sectors, and between local or customary rights and national law. Disputants shop among different forums in pursuit of solutions which will best serve their interests. Agency procedures shape how diverse concerns can be heard and integrated into decisions regarding water allocation. If supportive conditions and institutions are available, then negotiation among stakeholders can contribute to more equitable and efficient solutions to water conflicts.

This concluding chapter explores implications for practice, policy and research. One of the lessons of this book is that contexts are different, and uniform prescriptions will not fit well anywhere. This chapter does not attempt to provide detailed guidelines, but rather suggests directions for negotiating water rights in different contexts, and offers references to further resources. The first section reviews ways to improve capacity to negotiate water allocation. The following sections discuss issues for research and action in four key contexts: renegotiating rights during project intervention, formalizing water tenure, developing basin governance institutions, and coping with demands for intersectoral transfer.

IMPROVING NEGOTIATION

Most disputes about water are not resolved by courts, nor by technocrats. They are worked out by the parties involved, sometimes with the help of outsiders. A persistent theme in this book and in much of the literature on water conflicts concerns the advantages of agreements negotiated among disputants, rather than decisions imposed by a court, agency or other outside source. This allows participants to use their own detailed knowledge and creativity to craft solutions suited to their particular concerns, not just formal criteria accepted in law or recognized by outside officials. For example, in Burkina Faso (Chapter 3), local forums were adapted to explicitly include women producers, whom project officials had initially excluded; in Kirindi Oya (Chapter 4) introduction of a ‘late Maha crop’ created new flexibility to adjust seasonal water allocation to actual rainfall.

Substantial opportunities exist for improving the processes through which negotiations occur, by improving agency procedures, enhancing the negotiating capacity of water user associations, agencies and other stakeholder organizations, and providing third-party assistance for conflicts which disputants have been unable to solve by themselves. Negotiated approaches use and enhance the social capital of organizations and networks in civil society.

Scoping

Questions such as: who are the stakeholders, which forums are appropriate, how should issues be framed and how to best facilitate negotiation, can be the agenda of an initial participatory scoping process devoted to assessing the issues and stakeholders involved. Where this prepares for subsequent negotiation, it forms a distinct stage of prenegotiation. Prenegotiation may be particularly important where there are large cultural differences, little mutual understanding and no shared agenda (Rothman 1995).

Barbara van Koppen’s study of rice valley improvement in Burkina Faso in Chapter 3 showed both what could happen when primary stakeholders, women cultivating rice, were ignored. Assessment of who the main stakeholders are should clarify who has the greatest interest in solving a particular problem, and who might block a solution unless they have been involved in forming a consensus.

Current thinking tends to focus on watersheds as ‘natural’ units. However, problems and solutions may cover a ‘problemshed’ with a different geographic scale and different scope of participants. Water scarcity may only be critical in a particular sub-basin. In some areas, such as Java, irrigation development has created complex hydrological linkages moving water back and forth across ‘natural’ basin boundaries. People outside a watershed may have strong concerns, for example about recreation and environmental issues, which need to be represented if an acceptable solution is to be formulated.

The cases in this book support the argument that in almost all cases water rights already exist, in some form or other. Local water rights may be informal. Legal pluralism may be explicitly recognized in law to some degree. Furthermore, different laws may be inconsistent, and different agencies may have conflicting interpretations of the same set of laws. In almost all cases there are claimants who need to be heard, whether based on their formal legal standing, customary rights, or for the pragmatic reason that seeking their consent is likely to work better than trying to ignore or override their claims.

How stakeholders will be represented is a key question in preparing for negotiation. Organization of water user associations has created groups which may be able to represent farmers. Federations, such as discussed in Chapter 11, can bring together different WUAs, while still allowing those at the local level to have their voice heard. Efforts to organize negotiation are likely to bear more fruit where negotiation will respond to urgent threats already recognized by farmers, and offer, not imposition of one-sided sacrifices or mitigation of losses, but the prospect of genuine gains for farmers.

Increasing demand from different water users enlarges the scope of those concerned. Local uses for domestic water, livestock and other nonirrigation needs require stronger efforts to involve women and other stakeholders, besides the male irrigators who are typically the focus of irrigation organization (Meinzen-Dick 1997). Negotiations between different users in a basin become multiparty, with heterogeneous participants. Negotiations bring together strangers, people who may have had little or no previous contact. Cultural differences may complicate negotiation (Faure and Rubin 1995). Small scale cultivators in upper watersheds may differ ethnically from more commercialized farmers in lowland areas. Government bureaucrats, from irrigation agencies or water supply utilities, have to expose their discussions to farmers and local leaders, as well as industrialists from the private sector. Capacity to identify and involve stakeholders is critical for creating the conditions for effective negotiation.

Convening Forums

Earlier chapters illustrated negotiating forums, ranging from informal interaction among users, the silent dialogue of opening and closing outlets, to court proceedings and formal meetings between bureaucrats and farmers. Convening stakeholders is one of the options with the greatest potential for improving water allocation. As earlier chapters have shown, disputants choose between various forums for pursuing their interests in disputes. New forums create new possibilities.

For participation in irrigation design, having a series of meetings has been critical for going beyond a simple one or two-way exchange of information to broad participation, joint problem solving and consensus. The basic workshop structure of small group discussions and plenary sessions can be productive with all kinds of participants. A stakeholder workshop could last for a single day, or a participatory planning process could cover a series of meetings over many months. Conducting such activities requires preparation and skills in facilitation. Watershed management efforts in the United States have found it useful to appoint a coordinator for those tasks (Natural Resources Law Center 1996). The payoff lies in more directly enabling stakeholders to share their perspectives, assess their own problems, and build institutional capacity.

Ad hoc groups, such as a task force with members from different stakeholder groups, may help formulate options for solving water resource problems. Citizen’s advisory panels (CAPs) have served in other fields as a structure for systematic consultation. Involvement of senior managers who are willing to listen and respond is usually crucial for such CAPs to be effective (Cohen 1997). Depending on the purpose, relying on the initiative of volunteers may suffice, or members may be nominated by various stakeholder groups. A panel or other forum might be convened and given authority by an official agency , but also could be initiated by a university, nongovernment organization or local citizens group.

Facilitating Negotiation

Informal mediation of various sorts is common. Friends, neighbors, and religious leaders can help, particularly when conditions become so hostile that direct discussion between the disputants is not productive. Mediators do not have power to make and enforce decisions, but instead try to ease communication and facilitate agreement. Mediators can offer different perspectives and help to suggest new options for solutions. They can convene meetings, identify needs for technical analysis and otherwise aid dispute resolution. Professional mediators may be useful, particularly if conflicts are intense and specialized facilitation skills are needed.

Experience in promoting participation in irrigation shows the value of community organizers who facilitate local participation (Manor, Patamatamkul and Olin 1990). The difficulties of irrigation agencies in funding and institutionalizing positions for irrigation organizers (Bruns 1993) suggests the priority should be on building the capacity of community organizations, agency staff and other stakeholders to negotiate, rather than relying primarily on external facilitators. Experienced farmer leaders and other resource people may be recruited to act as advisors or consultants (N. Pradhan and Yoder 1989; U. Pradhan 1994). Where there are substantial needs, training programs can provide a systematic approach to improving the capacity of participants to deal with water allocation and rights.

Alternative dispute resolution (ADR) techniques open many options besides seeking solutions from a court or other external authority. Negotiated approaches have been applied to many water conflicts in the western United States, particularly for Native American water rights (see Checchio and Colby 1993, Folk-Williams 1988 among others). However, ‘[t]here has been almost no systematic application of dispute resolution principles to water conflicts in Asia and the Near East’ (Bingham, Wolf and Wohlgenant, 1994, vii; see also Stanbury and Lynott, 1993; Dinar and Loehman, 1995, and, for a dissenting emphasis on the uniqueness of conflict resolution in different domains, Dunlop, 1995). Action research would be useful in applying these techniques in developing countries, and documenting the effects of cultural or other contextual factors, along with the outcomes.

Interest-based negotiation can help shift the focus away from fixed bargaining positions, toward a creative search for solutions that satisfy underlying interests (Fisher and Ury 1991; Fisher and Brown 1988; Fisher, Kopelman and Schneider 1994; Fisher and Ertel 1995). Focusing on problems, not personalities, can offer more space for finding solutions. Power is not only a matter of wealth and authority, instead power for each party depends crucially on their best available alternative to a negotiated agreement. Reframing problems in new, mutually acceptable terms is often a key to generating creative solutions. Disputants can craft mutually beneficial ‘win-win’ solutions (Reck and Long 1985), escaping the assumption that conflict is a zero-sum situation where whatever one side wins must come from what the other sides loses. Interest-based negotiation is one of several systematic approaches to negotiation which may be introduced through facilitators, training and other means (Nierenberg 1981; Karrass 1992; Edelman and Crain 1993; Lewicki, Hiam and Olander 1996).

Arbitration is a more effective and attractive option where the legal system provides power to enforce arbitrator’s judgments. Where courts are inaccessible or distrusted, local leaders, religious figures, government administrators and others may play quasi-judicial roles as arbitrators, making decisions even if they are not formally empowered to act as judges (Engel 1978). In the same way that litigants may prefer to settle out of court, a parallel dynamic may work in a quasi-judicial context. Stakeholders in a water conflict may prefer to negotiate their own solution rather than having one imposed by a government authority. Such negotiations occur ‘in the shadow of the law’ (Mnookin and Kornhauser 1979, cited in Gilson and Mnookin 1994). They are often heavily influenced by how laws define the situation, and by the potential for authorities to help enforce an agreement. As with ‘settling out of court,’ the threat that the authority will impose a decision nobody likes, if disputants cannot agree among themselves, may provide a crucial impetus to formulating a negotiated solution.

Fact-Finding

A key technique in promoting productive negotiation is to get the parties involved in identifying which facts they can agree on. This highlights areas of agreement and conflict. It may reveal where further technical analysis would be welcomed. Experience with participation in irrigation design has shown that the changes important to farmers are often very minor from a technical point of view, for example adjusting a canal alignment to run along a property boundary or siting a structure a few meters up or downstream. In other cases, information on how much water is available with what reliability is critical. Clarifying the technical questions at issue may similarly help to simplify finding solutions to water allocation conflicts in at least some cases.

Technical knowledge is an important collective good which may not be adequately produced unless there is government intervention or successful cooperation among users to sponsor relevant research (as seen in Guillet’s case from Spain). In Chapter 4, Brewer argued that the main role played by the irrigation agency was as a source of technical advice. In his study of groundwater management in southern California, Blomquist (1992) concluded that technical analysis by the state government made a crucial contribution to the success of user efforts to manage the groundwater resource.

The case study by Northern New Mexico Legal services showed how fact-finding can include a variety of sources of information such as oral histories and archival research to identify historical water rights. Analysis of the relative opportunity costs of water for farmers and other users may clarify the potential space for satisfactory win-win agreements. Analysis of return flows may delimit how much water remains available for transfer without impacting third parties. Simulation models can synthesize complicated information about the hydrological interrelationships for use by agencies, or others, such as a stakeholder advisory panel. Alternative scenarios can be modeled, while recognizing the limitations of simulation and the need for judgments which go beyond technical considerations.

Where disputants distrust agency expertise, it may be essential to provide them with the resources needed to recruit their own experts, hold meetings and otherwise prepare themselves to negotiate. This means putting money in their hands. Participation in irrigation management has often relied on uncompensated efforts of local leaders. While such voluntary efforts may still be crucial for larger problems, there is also a greater need for specialized expertise. If local organizations lack the financial capacity to hire experts themselves, then providing funding for fact-finding and other activities may be essential to make negotiation possible.

Implementing Agreements

In traditional irrigation systems it is common to find that downstream users can only enforce their ‘water rights’ by sending people to close and guard each and every gate or outlet between their fields and the headworks. Implementation arrangements need to be considered from the beginning of negotiation. In Chapter 7, Pradhan and Pradhan illuminated the variety of stratagems the farmers of Yampa Phant used in their quest to acquire water and legitimate water rights. This kind of contested context is where implementation usually occurs.

The transfer of authority to sanction violators is one of the characteristics which distinguishes genuine empowerment for local resource governance from more diffuse ‘participation.’ Consensus may be essential for reaching agreement, but settlements which rely only on consensus for enforcement may be fragile. Implementation is often a continuing process of negotiation, albeit one where the range of disagreement has been narrowed.

Devising agreements which can be implemented is the crux of successful negotiation. Although irrigation schemes and watersheds commonly have very different boundaries than administrative units, agreement of administrative authorities is likely to be essential to mobilizing resources and enforcing agreements. Brewer’s analysis of seasonal allocation in Sri Lanka identified several characteristics which contributed to creating workable agreements: simplicity, flexibility, expert advice and a forum with stakeholder participation and authority. In disputes about Native American water rights in the western United States, negotiation has provided a valuable alternative to litigation. However, agreements have depended heavily on the willingness of the federal government to fund new supplies or other compensation (McCool 1993; Folk-Williams 1988).

Limits of Negotiation

Experience during irrigation construction has shown that even when thorough efforts are made to ensure full participation during design, some people still are left out, or choose not to take part. However, once construction starts, some of them become concerned, once they see that things are really happening and their interests are affected. Realistically, negotiated approaches to water allocation need to accept the incompleteness of participation, and the likelihood that new claims will be raised later on.

Negotiation cannot solve every problem. If some disputants believe they will be better off suing in court, directly influencing decision-makers, or otherwise pursuing non-negotiated solutions, then it may not even be possible to ‘bring everyone to the table.’ Negotiation is likely to be most relevant when parties are willing to listen to each other and make tradeoffs among multiple goals (Shabman and Cox 1995). As discussed earlier, various methods can help facilitate negotiation and overcome obstacles (see also Ury 1991; Arrow et al. 1995; Susskind 1996), but they will not always succeed. Negotiation is not the only choice, but it is an option that should be available in various negotiating contexts, such as the four contexts discussed in the following sections of this chapter.

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