Water, Land and Law CENTRALE LANDBOUWCATALOGUS 0000 0834 7383 This book is dedicated toJoe p Spiertz (1940-1999), friend and colleague, who collaborated with us in the water rights training and research project. Water, Landand Law Changing Rights to Land and Waterin Nepal Proceedings ofa workshopheld in Kathmandu, 18-20March 1998 Rajendra Pradhan, Franz von Benda-Beckmann and Keebet von Benda-Beckmann, Editors February 2000 Legal Researchand Development Forum (FREEDEAL), WageningenAgricultural University (WAU), Erasmus UniversityRotterdam (EUR) /YVN ^YV^ ^ V- '^~'3 N Pradhan, Rajendra, Franzvo n Benda-Beckmann andKeebe tvo nBenda-Beckman n (eds.)2000 . Water, landand law: Changing rightsto land and water in Nepal. Kathmand u/ Wageninge n/ Rotterdam:FREEDEAL/WAU/EUR . ISBN 99933 160 08 H b ISBN 99933 160 16 P b © FREEDEAL All rights reserved.Publishe d in2000 . •Si? Please direct all enquiries to FREEDEAL GPOBo x656 1 Anamnagar Kathmandu Nepal e-mail:freed l©freed.wlink.com.n p Cover design,layou t andformattin gb y FormatGraphi c Studio,Nepa l Printedb y Jagadamba Press,Nepa l Contents Acknowledgements ix Map of Nepal with Case Study Sites Introduction hh>Q\0:^\ * Franz vonBenda-Beckmann, Keebet vonBenda-Beckmann ^J and Rajendra Pradhan Gender and the Multiple Contingencies of Water Rights in Nepal 17 Franz von Benda-Beckmann and Keebet vonBenda-Beckmann O --1. • *• * •- Land and Water Rights in Nepal (1854-1992) 39 Rajendra Pradhan Water Rights, Law and Authority: 71 Changing Water Rights in the Bhamke Khola Basin Madhukar Adhikari and Rajendra Pradhan Land and Water Rights in Thulo Sangrumba, Ilam 101 Indra Kumar Sodemba and Rajendra Pradhan Gendered Water Rights in the Hile Khola Kulo Irrigation 129 System, Shakhejung VDC, Ilam Prabina Bajracharya Struggle for Water Rights in Thulotar Kulo: 6 L NS 147 A Historical Analysis Rabi Poudel Land, Water and Gender in Rupakot Village, Nepal 169 Charlotte vander Schaaf Gender, Land and Irrigation Management in Rajapur 195 Shuku Pun Studying Dispute Process Relating to Water Rights: 217 The Roles and Claims of Different Actors in Bhimapur Farmer Managed Irrigation System Shantam Singh Khadka Community Level Water Use Negotiation: T 249 Implications for Water Resource Management BishnuRaj Upreti Glossary 271 About the Contributors and the Contributing Institutions 275 Acknowledgements We as well as the organisations we represent wish to thank all the persons who presented papers in the workshop. A special thanks to the Chairpersons, Discussants and Commentators of the various sessions. Their comments as well as the lively discussions by other participants of the workshop contributed a lot to improving the papers published in this book. The panel discussion was also very useful. We would especially like to thank Dr. Ruth Meinzen-Dick who in addition to commenting on several papers also worked with one of the editors (Keebet von Benda-Beckmann) to summarise the key points of the workshop. We would like to thank the Ford Foundation, New Delhi office and the Head Office for so generously funding the research and training projects on water rights in Nepal as well as the publication of this book. We would especially like to thank Dr. Ujjwal Pradhan, Program Officer at the Foundation's Delhi Office, who has been a great source of support and inspiration for the water rights project, both as a Program Officer and in his personal capacity. His abiding interest in water rights and water resources management as well as in long-term research and training has been of immense help. We would also like to thank the staff of FREEDEAL for their help in organising the workshop and especially Prof. Kanak Thapa for facilitating the workshop and the publication of the book. We wish to thank Anil Raj Shrestha of Format Graphic Studio for designing the cover and the layout and Sunita Thapa for supervising the production of the book. This book is dedicated to the late Joep Spiertz, friend and colleague, who collaborated with us in the water rights project. Although he is no longer with us, we feel that the dialogue with him continues. Rajendra Pradhan, Franz von Benda-Beckmann and Keebet von Benda-Beckmann, Editors Introduction Franz vonBenda-Beckmann, Keebet vonBenda-Beckmann and Rajendra Pradhan This collection of papers is the second publication that has come out of a research project onwate rright s infarme r managed irrigation systems (FMIS).1 Someo f these systems have been constructed more than hundreds of years ago, while others areo f more recent date. Government involvement was never completely absent. Local landlords and tax collectors, who had received land grants and the permission to build irrigation systems from the local rulers in order toextrac t taxes and to expand the frontier, in fact built most of the older systems. At various stages in history, regulationsrelate dt oirrigatio nchanged. 2 Buti twa sno tunti lrecentl ytha tintervention s started to have amor e profound impact both technically and from an organisational pointo f view. Many ofthes e"farme r managed"irrigatio n systemshav erecentl ybee n or are in the process of being improved with the help of the government or foreign donoragencies .Suc h interventions invariably poseproblem so fredesignin g thecana l infrastructure andaccustomin gexistin gregulation san dorganisation .The yals ocreat e new problems resulting from changes in rights and obligations related to water. But whilea lo to fstudie shav elooke dint oth etechnica lchange san dproblem si nirrigatio n systems, little still is known about the processes of adjustment, accommodation and conflict management that is involved; about the transition from the old to the new organisational setting; and about the co-existence of older and newer forms of organisation, rights andobligations . Inparticula r theco-existenc e of state regulation, of local regulations and of regulations made by the intervening agencies, captured under the term "legal pluralism", has received little attention. Usually it is assumed that the introduction of new rules, whether made by state agencies or by donor organisations, leads to the disappearance of the old ones. In fact, this rarely is the case.Mor etypically , (partsof ) older andnewe rregulation s co-exist sideb ysid ei na n uneasy cohabitation, whether or not theol d regulations areofficiall y recognised.3 The first publication contains the results of thefirs t workshop held in Kathmandu in January 22- 24, 1996. See R. Pradhan et al. 1997. Most of the research projects had been sponsored by the Ford Foundation. See Pradhan in this volume. See Spiertz 1991 for the co-existence of older and newer regulations regarding subak, water management organisations in Bali. INTRODUCTION The researchers contributing to this volume come from various disciplines, including law, agronomy and social sciences. Most of them work for various Nepali research organisations such as the Legal Research and Development Forum (FREEDEAL), the Mountain Research Management Group (MRMG),an d the Institute of Agrarian and Animal Science in Rampur (IAAS).The y share an interest in conflicts and the role of law in regulating irrigation water. Some of the older participants had done fieldwork before; for others it had been their first exposure to field research and legal anthropological research approaches. Research on these plural legal structures and their relations with the actual management and use of water in irrigation issues,i n addition to the more usual techniques, requires the specific methodology that has been developed in legal anthropology. Most researchers had been trained in the anthropology of law with the assistance of Wageningen Agricultural University and Erasmus University, Rotterdam in the context of a legal anthropological research and training programme sponsored by the Ford Foundation. As part of their training the researchers reported the results of their fieldwork during aworksho p held Kathmandu in March 1998, where draft papers were discussed with more experienced national and international researchers working in the field of water studies.4 Since then the draft papers have been extensively rewritten and the results are presented in this volume.5 For some authors it is the first publication on this topic, while others have published elsewhere on their research projects. However, all papers reflect "work in progress". This introduction will discuss some of the major topics that came out of the papers presented at the workshop and the ensuing discussions. Historical dimensions of water rights Problems of irrigation management and water rights need tob e seen within the context' of, and as part of the development of the political economy of Nepal. From the early history of Nepal, in the feudal state as well as in the institutional developments after "démocratisation", there have always been direct political and economic linkages between small-scale localities and political and economic elites in the centre of the Kingdom. Starting with birta grants and tax collection, both political and economic linkages have become more complex, diversified, fragmented and contested. In particular, the earlier strong interwovenness of political and economic aspects within one relationship, between feudal lord and his dependants (i.e., the land tenure holders and tax collectors) have been dissolved, and now involve political and economic agents of different kinds. Further, there is an increasing influence of foreign and international actors,governmenta l and non-governmental agencies on Nepal's policies and programmes, and an increasing presence of such donor-run projects in small localities.A s aresult , the international political andeconomi ccontex t directly impinges Itwa s alsoth eoccasio nfo rFREEDEAL ,th emai norganise ro fth eworkshop , topresen tit swork - in-progressrepor tt oth eFor dFoundatio n andt ocommunicat eit sfinding s toNepales eirrigatio n experts. Forvariou sreasons ,fou r paperspresente d atth eworksho pcoul dno tb einclude di nthi svolume . INTRODUCTION on the ways in which irrigation systems arechanged , new institutions are set up or old ones are transformed, and on the ways in which rights and obligations concerning water become redefined.