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IX. PROVISIONS CONFERRING SUBSTANTIVE LEGAL RIGHTS AND DUTIES ON PARTICIPANTS


WUOs are created to serve the interests of their participants. But what does the legislation say about the relationship between WUOs and those participants? What are the rights of the participants? And what are their duties?

Although these issues are common to all WUOs, there is a surprising degree of variety in the manner in which the legislation addresses them. In some countries the legislation leaves these matters to the governing document of each individual WUO. For example, in Mexico the law simply states that the rights and duties of members are to be described in the governing document. It does not give any guidance as to what those rights and duties should actually amount to.

The English legislation goes a little further. It provides that occupiers of land within a 'Drainage District' who are required to pay a drainage rate to a WUO are entitled to vote in elections and, provided they meet the necessary property qualifications, they are entitled to stand for office. At the same, time all such persons are required to comply with local operating rules issued by the WUO and to concede rights of access to its duly appointed officials. Apart from that the legislation says little about either rights or duties. The 'right' to benefit from land drainage activities is implicit rather than explicit.

Elsewhere, provisions on the rights and duties of WUO participants are set out more clearly in the legislation itself. This has been a particular feature of the approach taken in the legislation of the former socialist countries of Eastern Europe and Central Asia where, as mentioned, WUOs are generally a new concept and rights set out in legislation are perceived to be 'stronger' than those set out in the internal governing document. A variation on this approach is found in Albania, where the law itself says little about the rights and duties of WUO members. However, ministerial regulations specify minimum provisions to be included in WUO governing documents.

(a) Rights of WUO participants

One of the most important practical rights for participants in WUOs that operate irrigation systems is the right to a fair share of irrigation water. In Punjab Province, Pakistan, the law states that among other rights, WUO members have the right to an 'equitable share of water as per distribution criteria'. Similar provisions are contained in the laws of the Kyrgyz Republic and Romania.

Another very important right, which is also specified in the Pakistani law, is the right to elect representatives to the general assembly, to stand for election, to access all services provided by the WUO and to inspect all records held by the WUO.

In Peru the law sets out a clear list of the rights and duties of WUO participants. Among their rights, the law lists the right to speak and vote in meetings of the general assembly, the right to elect and be elected to the WUO's internal institutions (in compliance any the restrictions set out in the law) and the right to inspect all documents held by the WUO.

In Tunisia the legislation specifies that each participant has the right to be elected to the governing bodies of the WUO, to submit proposals to the general assembly, to participate in and vote at the sessions of the general assembly. As already mentioned, however, in some countries (such as the Kyrgyz Republic) the law makes it clear that the right to stand for election to one of the governing bodies of a WUO is dependent on that participant not owing any outstanding fees to the WUO.

Another important right is the right to information about the operation of the organization. This kind of right can be essential to promote transparency and to guard against corruption. For example the Bulgarian legislation confers rights of access to WUO documents on participants of the WUO as well as the right to request information on issues that concern them. Similarly in Punjab Province, Pakistan the audited accounts of each WUO must be kept in a conspicuous place at the WUO's office and must be available for inspection by participants. Similar provisions are found in the WUO legislation of Saskatchewan Province in Canada.

(b) Duties of WUO participants

The corollary of rights is duties. Again, duties are commonly spelt out in the governing documents of WUOs, but they may also be specified in the legislation. One of the main duties of WUO participants will usually be to promptly pay any fees that are due to the WUO.[117] The Peruvian legislation requires participants to regularly pay their charges and assessments. This could relate to routine operation and maintenance charges or costs of construction. In Costa Rica all costs of the construction, operation, maintenance and expansion of the infrastructure used by the WUO must be paid by participants in proportion to the shares each holds.

Another commonly stipulated duty, found for example in the Kyrgyz law, is to use water efficiently and carefully. In some countries, such as Peru, WUO participants are required to participate in the meetings and support the activities of their respective organizations. In all cases, they are required to abide by the WUO's rules whether contained in the governing document and/or operating rules.

In practice a WUO will often need to be able to gain access to the land of participants to undertake inspections and construction and/or maintenance activities such as cleaning out canals. In Pakistan, participants have the obligation to allow inspection of their lands, crops and irrigation systems. Similarly in Bulgaria, participants' duties include allowing access over their land to WUO staff for the operation and maintenance of irrigation/drainage infrastructure and allowing the WUO to use, free of charge, irrigation and drainage infrastructure on their lands.

Statutory information obligations can be of two sorts. The legislation can impose a duty on participants to provide the WUO with all the information it might need for carrying out its activities (for example in Bulgaria). Similarly, in South Africa WUOs are required to compile an 'assessment roll', which must contain information on the charges that the WUO has decided to levy, for the information of participants.

Alternatively, the legislation can also impose a duty on WUO participants to maintain confidentiality regarding information about the WUO that may have commercial value. This is the case in Germany, for example.

Finally, the legislation typically requires participants to reimburse their WUO if they damage any of the equipment or infrastructure that it owns or uses. The Costa Rican legislation provides that participants who damage infrastructure owned by a WUO must pay for its repair. They can also be subject to a fine and to suspension of the supply of water until complete repayment of the damage has been made. The same applies if a participant constructs or alters infrastructure to improve his/her water supply.

Of course, it is all very well imposing duties on WUO participants. But what is to happen if they do not comply? This issue is examined in more detail below in Part 12 on the substantive rights of WUOs.


[117] An issue considered in the next Part.

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