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Botswana appeals court grants water rights to Bushmen

By Julia Zebley

[JURIST] The Botswana Court of Appeal [SAFLII database] ruled [judgment, PDF] Thursday that the indigenous Bushmen [National Geographic backgrounder], or San, can drill wells in their village in the Central Kalahari Game Reserve (CKGR) [official website], reversing a lower court ruling [JURIST report]. The court found that the Bushmen have the right to use a previous borehole, that the government must pay the Bushmen's court fees and that the government's treatment toward the Bushmen has been "degrading." Citing the Chapter 34:01 Water Act [text, PDF], the judge wrote:

In my view, it cannot be emphasized strongly enough ... that in Botswana water is at a premium. Lawful occupiers of land such as the appellants must be able to get underground water for domestic purposes, otherwise their occupation would be rendered meaningless. Indeed, I accept that this is the rationale behind s 6 of the Act. Accordingly, I have no hesitation in concluding that the appellants, being the lawful occupiers, do not require a water right for the use of Mothomelo borehole, or indeed any other current or future borehole on land in the CKGR, for domestic purposes.

A spokesperson for the Bushmen stated that they were "very happy" with the decision and hoped that "the government will now treat us with the respect we deserve." Survival International [advocacy website] also released a statement praising the decision [text]. Jeff Ramsay, an official for the Botswana Government Communications and Information System [official website], said the government will respect the decision [AP report].

The Bushmen applied for permission to use a borehole [BBC report], originally dug by diamond company De Beers [corporate website] in the 1980s, as a water well on their ancestral land located in the Kalahari desert. Judge Lashkavinder Walia originally denied [AFP report] the tribe's application, stating that they needed to specify how much water they intended to pump from the borehole in order to comply with water regulations. Tourist areas as well as diamond claims are located within miles of the game reserve, and the closest source of water for the Bushmen is 25 miles from their village. The Bushmen are considered to be the first inhabitants of southern Africa, with ancestors occupying the Kalahari Desert region for 20,000 years. The tribe was evicted from the game reserve from 1997 to 2002 and forced to reside in settlement camps. The Bushmen contended that the eviction was the result of the government attempting to make room for diamond claims and tourist areas, whereas the government cited the Bushmen's negative effect on conservation as the motivation behind the relocation. The borehole was sealed in 2002 in an additional effort to drive the tribe from the land. In 2006, the High Court ruled [JURIST report] that the government's eviction was "unlawful and unconstitutional" and allowed the Bushmen return to the area.

Full post as published by JURIST - The Paper Chase on January 27, 2011 (boomark / email).