The future of domestic water law: trends and developments revisited, and where reform is headed

Water Resources Allocation and Agriculture

“…Indonesia, Kenya: Dai et al, 2017;Israel, Nicaragua: Global Legal Research Center, 2013;Bangladesh, Bhutan: Hirji et al, 2018). 2 Water is still capable of being privately owned in some jurisdictions, and this occurs much more commonly for groundwater than for surface water (e.g., Austria, Japan, Portugal, some areas of the USA: OECD, 2015), but these are best considered 'isolated pockets' of water allocation regimes (Burchi, 2019).…”

“…Though it appears relatively rare, some jurisdictions are attempting to link statutory water plans with land use plans (e.g. Vietnam, Ecuador, California, USA, Japan, Zambia, Tanzania: Burchi, 2019).…”

“…farmer to farmer) (e.g. Honduras: Burchi, 2019); and others expressly ban transfers or implicitly do so by tying water rights to land (e.g. Peru, Zambia: Burchi, 2019).…”

“…This may be particularly the case in agrarian low-and middle-income countries where permit regimes 'annul' customary law and introduce a 'bias towards single water uses', rather than domestic water and subsistence agriculture, ultimately 'finishing the unfinished business of colonialism' (van Koppen, 2017). Some recent water allocation legislation deals with this by formally recognizing uses established under customary law, accompanied by mechanisms such as local accreditation measures (Bhutan), a requirement to consider traditional uses when deciding on new abstraction applications (Zambia, Namibia), or according customary rights a generic priority or equal status to 'modern' permits (Peru, Tanzania) (Burchi, 2019). If well implemented, such measures would presumably go some way to protecting traditional, small-scale agriculture from the adverse effects of newer, large-scale agricultural withdrawals.…”

Indigenous Water Rights in Comparative Law

“…9 Indigenous water rights are increasingly acknowledged in comparative and international legal documents, including recently in Principle 3 of the 2018 Brasília Declaration of Judges on Water Justice, which provides that '[I]ndigenous and tribal peoples' rights to and relationships with traditional and/or customary water resources and related ecosystems should be respected, and their free, prior, and informed consent should be required for any activities on or affecting water resources and related ecosystems'. 10 However, despite a comparative tendency towards the 'greening of water laws' around the world, 11 western laws typically still fail to recognize and provide for the full extent of Indigenous rights to water, denying Indigenous peoples both procedural rights in water planning and management frameworks, and substantive water use rights and allocations. 12 This continuing failure of law and policy is a source of ongoing trauma 27(1) The Australian Journal of Anthropology, pp.…”