Farmers' laws and irrigation : water rights and dispute management in the hills of Nepal

The title of my Thesis is "Farmers' Laws and Irrigation: Water Rights and Dispute Management in the Hills of Nepal". This is based on a research I conducted in the Thulotar Kulo irrigation system in Nepal, during 1997 and 1998. Thulotar Kulo is a farmer-managed irrigation system.Although this is a case study of a small system, attention has also been given to the wider context of Nepal in terms of the conflicts and the relationships between customary laws, state laws, and local laws that pertain to water management. The types of water rights granted to the users of an irrigation system determine user rights and obligations in water distribution, resource mobilization and participation in decision-making activities.Water rights, however, are the products of customary laws as well as the state laws which simultaneously exist. These different normative frameworks co-exist and are alternately consulted when people defend their claim to the use of a water resources. Such complex and plural forms of laws affect the property rights regimes of natural resources including water.Among the various options, negotiation and mediation are the common tools of dispute settlement in the villages. The success of these practices mainly depends on the characteristics of the negotiating and mediating parties, the types of disputes, and other social context of the existing society where the disputes have been originated and managed. These processes can be very risky for the weaker sectors of society, however. If the disputants have a simplex relationship, or the dispute is over scarce resources and negotiation or mediation is unsuccessful, disputants will usually rely on adjudication that leads to win-or-lose situation. However, not necessarily all disputes settled by whatever means are resolved for ever in practice.The current complexity of property rights definitions have been affected by various historical and contemporary governing institutions. Nepal is a small Himalayan Hindu Kingdom which has historically been ruled by many small Principalities, Shah Kings, Rana Prime Ministers, and constitutional monarchy. The first Nepalese national legal code was promulgated in 1853. This recognized a few customary practices relating to land and water management, but it was only in the 1980s that the government of Nepal adopted the policy of having people participate in all types of irrigation system development and management. Other water resource acts and regulations were promulgated in the 1990s.These circumstances invite many disputes among different groups and individual citizens of rural Nepal. Most disputes involve the access and use of natural resources and other household properties, mainly the parental property, and land and water.In Thulotar, many water management-related problems never developed into disputes. The disputing parties did not seriously perceive most of the dispute cases as well. During my research, however, I observed several disputes that were seriously presented against their opponents. The majority of the grievances and disputes in Thulotar were due to the scarcity of irrigation water. No provision of water guard during rice transplantation, absence of formally sanctioned rules about the priority of water to transplantation over irrigation and silence of rules about the need of first watering to the newly transplanted fields within a specified period of transplantation have been the main reasons for the highest frequency of water disputes. Most water scarcity grievances were transformed into volatile disputes. While most disputes were heard by the Water Users Association and the water guard, the parties of most disputes concerned were either the men, women, or children.The Thulotar irrigation system could generally be said to practice effective dispute management as not many water disputes were observed. But the lenient attitude of the Users Association in the enforcement of rules against offenders also resulted in poor management performance. They have many water-related grievances, which are not relieved. Such grievances may have suppressed and blocked farmers from participating in the development activities, especially in the decision-making.Although many authors in the fields of social science believe that a common property resource should be run in a disputeless situation, the "definition" of dispute most authors envision is an "open dispute", which is only part of a whole concept of dispute management, as indicated by this research. Based on this assumption, many farmer-managed irrigation systems in Nepal are categorized as "effective, efficient, and well-performed" irrigation systems.The findings of this research raises doubts against this claim, especially in those irrigation systems which are managed by such farmers' communities where caste-, age-, gender and religion-based normative orders dominate. There may not have been many open disputes, but are we sure that there were no other tensions and grievances? Or should we classify all irrigation systems as "effective systems" where there were no easily observable water-disputes?The assumption of classifying "an irrigation system with open disputes" under the category of "non-effective systems" may be questionable as well, as not all water disputes in an irrigation systems are necessarily detrimental and threatening to the management of those systems. Some of the social disputes also have positive impacts on the societies. In some cases, water disputes lead to the "solution of the problem" but do not necessarily "create the problem".The findings of this research may thus have implications for the present government irrigation development and management policies in Nepal. Similarly, the dispute management situations of existing systems may also need a thorough study, and farmers may likewise need the necessary training so that all farmer-managed irrigation systems may function in non-dispute or minimum-dispute situations. Although there are almost no irrigation systems without dispute problems, it is the awareness, interest, and ability of the managers of those particular systems to manage such dispute cases in a proper way in proper time. The farmers' history and contemporary water dispute management situation may need a detailed study. Every Water Users Association may have its strengths and weaknesses. Based on the findings of the research, the existing Water Users Organization may need further training for these responsibilities as well. Thus, the weaknesses would be strengthened and the strengths multiplied.Finally, I would like to point out that, although the findings of this research may have provided certain lessons in evaluating the present assumptions on the conduct of farmer-managed irrigation systems, and irrigation management policies in the Hills of Nepal, such a very specific research conducted on a very small irrigation system may not be sufficient enough to suggest its findings be directly implemented in other large scale systems. However, I am hopeful that it may work as an important piece of thought that may lead to further research and studies in the issues identified by this research.