Q&A: David Getches on Water Rights for Indigenous Cultures

David Getches discusses the recently released Out of the Mainstream: Water Rights, Politics and Identity, a book which he co-authored, and how modern society is affecting our water culture as well as the rights of indigenous communities around the world

Cover image courtesy of Earthscan

Welcome to Circle of Blue Radio’s Series 5 in 15, where we’re asking global thought leaders 5 questions in 15 minutes, more or less. These are experts working in journalism, science, communication design, and water. I’m J. Carl Ganter. Today’s program is underwritten by Traverse Internet Law: tech savvy lawyers, representing internet and technology companies.

Indigenous people around the world depend on water for their agriculture, their cultural traditions, and their spirituality. A new book, Out of the Mainstream: Water Rights, Politics and Identity explores this intense cultural interdependence. Circle of Blue Reporter Molly Ramsey spoke with one of the book’s authors, David Getches. He’s Dean of the University of Colorado Law School and Professor of Natural Resources Law. For the book, Getches writes on international law and the potential to secure water rights for indigenous communities.

How did this book come together? For our readers who haven’t had a chance to read it, can you provide a synopsis of the book?

David Getches: I think the prime labor for this, Rutgerd Boelens, inspired to create a project called Water Law and Indigenous Rights, acronym WALIR, and then an outgrowth of WALIR was the idea for doing an English language book that brought together the research, perspectives and ideas of the researchers who have been working in this area. It is critical to maintain the river flows or the high mountain agriculture on which the people in countries like Chile, also Peru, are dependent. That water has been targeted for development by mining interests. At the same time, the indigenous communities are struggling to maintain their identities as peoples and their ability to subsist in those areas.

How is water an organizing force for indigenous cultures?

David Getches: Indigenous people do derive their identities and continuity as a society from the ways in which they use water today. That connects them with the past and provides their subsistence today. In many instances, and Chile’s a good example, Peru to a lesser extent, the mea-liberal project of marketizing commodities and even marketizing water so that it’s treated as a commodity is in direct conflict with the way that these traditional people in the Andes have used it in the past. The idea of buying and selling water and having it be something the value of which is determined on the open market is conflict, not only with their continued ability to use the water, that’s because they can’t bid for it in the open market and outbid say a mining company who wants to buy it and it’s also in conflict with their cultural ideals that water simply isn’t a commodity. It’s something that has spiritual value.

So is this how the indigenous cultures are very much out of the mainstream from the national and international water policies that they must operate within?

David Getches: That’s exactly right, and that is the inspiration for the title. These people are seen as out of the mainstream and out of cultural norms of today in the urbanizing, more market oriented parts of society. Many of these people who wrote the water laws of places like Chile to keep away from their education is simply not the case. With the idea that water would be an ideal commodity to marketize, and they didn’t get the part about integrating those other cultural values, so it is an isolated ideal that should be pursued vigorously and unqualifiedly.

Can you talk about how one of the main challenges for policy makers Is that an order to protect the water rights of indigenous cultures, water resources must be given to the indigenous community. They need ‘to determine the rules for managing the water use system, ‘ to be able to distribute and have power over their water resources. Where is this being done effectively?

David Getches: It is being done with some success in some places. We have had some success on Indian reservations where the tribes have self-governing powers and been able to adopt their own water codes that regulate water of both native and un-native people. That has enabled them to decide when water should be left in the streams, for instance, left in the stream for fisheries and natural uses, and when water should be used for agriculture and so forth. Most of the Indian countries actually have a respect for the norms of the native people, but recognition of indigenous and peasant rights in these Latin American legal systems have diverged so that there’s no example of perfect acceptance. Nations vary in their respect for international law. To assert these international norms and treaties and so forth in that domestic court will be met with more or less success depending on how accepting the country and forums are for international law. There’s also the possibility of going to international forums and asserting these rights. That has been done in the case of land rights, and in a few examples, land rights of indigenous people.

Can you tell us a bit about that where it has been successful?

David Getches: Well, there’s been some success in Brazil, and that has required the marking out of the territories that historically belong to indigenous people so that they won’t be encroached up. There are things like that that have had some traction in Latin America. We try to argue from that vantage that perhaps there can be similar claims made concerning water rights.

Can you describe the water culture of Native Americans in the southwestern United States?

David Getches: In several areas of the United States, there are water based cultures. We find on the pueblos in New Mexico there are people who use water in a traditional way. They have adapted not only their traditional cultural norms but the norms that came from the Spanish who populated that area early on and used the asacia system. These people are brought together and they find community coherence in the annual rituals of ditch maintenance and irrigation and later the harvest of the crops. There are water based indigenous cultures in the northwest where the people are primarily fishing people and depend on clean and adequate water to ensure the return of the salmon. Entire communities are organized around the seasonal patterns of salmon return and harvest and ensure that enough salmon escape in order to spawn so that they will return again another year.

You also talk about how indigenous and rural communities preserve the environment and increase food security. What can we learn from these communities, especially in light of growing water scarcity and global climate change?

David Getches: What we have seen over time in indigenous communities is that they have learned through trial and error just how much the environment can stand. That is, they’ve developed a certain resilience that enables them to cope with years of drought and years of plenty. That means that in some years they just get by with less. It also means that their mindful of not over taxing the resources that are available. The problems that modern society is coping with today are problems of overutilization, overdependence on a scarce and sometimes diminishing supply. Their ability to live out those ethics is becoming limited by the forced over-population of those areas. They have no place else to go. The water supplies and other commodities are being depleted by the demands of the cities, so while those ethics have existed historically, it’s very difficult for them to adhere to them today. Climate change is creating a disruption of natural systems that is much more expensive than is captured in the term “global warming”. In some areas it’s warming, and in the globe as a whole, it’s warming, but there are dramatic changes in precipitation patterns, where they occur, when they occur, and these traditional practices of indigenous peoples throughout the world are disrupted, even without the pressures of population change.

What do you hope people will take away from the book?

David Getches: I would love for people to take away from the book the idea that water isn’t simply an unlimited commodity. There are values that are attached to it that become the core of entire cultures. If we all appreciate it, the life giving value of water, more, we would find a way to live more lightly on and more compatibly with the Earth.

Well, thank you very much for talking with me today.

David Getches: Thank you for the opportunity.

Thank you, Molly. Circle of Blue reporter Molly Ramsey has been speaking with David Getches. He’s dean at the University of Colorado Law School. To learn more about his work and other projects, be sure to tune in to Circle of Blue online at 99.198.125.162/~circl731.

Our theme is composed by Nedev Kahn, and Circle of Blue Radio is underwritten by Traverse Legal, PLC, internet attorneys specializing in trademark infringement litigation, copyright infringement litigation, patent litigation and patent prosecution. Join us gain for Circle of Blue Radio’s 5 in 15. I’m J. Carl Ganter.

Read an excerpt from the introductory chapter Out of the Mainstream: Water Rights, Politics and Identity, a book on the effect modern society has on water culture and indigenous communities.

Read a specific water rights case study in the Achamayo River Valley in Peru from Out of the Mainstream by downloading chapter nine on Circle of Blue.

For more Circle of Blue reports on indigenous people and the right to water, read this article on Ecuadorian protests of a water reform bill or this article on the struggle in Copenhagen during the COP15 UN Climate Conference.

Q&A: David Getches on Water Rights for
Indigenous Cultures

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