Operationalising Adaptive Capacity - Climate Change and Water Governance: Adaptive Capacity in Chile and Switzerland - page 247

12.6 Synthesis: Commonalities and Linkages

Across Indicators

12.6.1 Regime

In the Chilean case, the Water Code is the prime determinant of the administration
and management of water, in its incarnation as a water right, rather than a holistic
water resource. Furthermore, the Water Code cannot be seen in isolation from the
Constitution, in which the private property of water rights are provided for (Article
19.24), guaranteeing the security of these water rights, reducing the ability of legis-
lators to significantly reform the water rights situation and remedy the over-alloca-
tion and over-exploitation of water resources in the central and northern basins of
Chile, without impinging on constitutionally protected property rights.
Moreover, regime is a particularly complicated issue in Chile because of the great
influence that the neo-liberal doctrine implemented by the Pinochet regime had and
still has on resource management across the country. The rules and regulations con-
cerning water resources should therefore not be analysed in isolation from the changes
implemented by the Pinochet regime, which continue to influence resource manage-
ment in Chile in general. Under the neo-liberal doctrine, water rights were created into
a commodity, separate from land, which could be bought and sold as any other com-
modity. After the new Constitution was crafted and passed in 1980 (the coup took
place in 1973), in quick succession, the Water Code was then passed in 1981, the
Electricity Act in 1982 and the Mining Code in 1983, each transferring power to the
private sector, and de-regulating the governance of natural resources (consumptive
water use, non-consumptive water use for energy and minerals for mining). These
framework laws have a pervasive effect on almost every aspect of water governance,
and every aspect of water resources governance impacts each of the indicators listed
in the tables above. The balancing of the exploitative focus of these new laws and
tendency to resolve conflicts in favour of stronger economic parties has received atten-
tion from other scholars researching the challenges facing water management in Chile
(Bauer 2004 ; Budds 2004 ; Carruthers 2001 ). However, this issue has limited relevance
in the Aconcagua region, and is more prevalent in the northern and southern areas of
Chile, and therefore will not be tackled in this chapter.
The results of the Regime indicators, point to a tension between the lack of for-
mality in regulating water resources and the highly formalistic centralised mode of
rule setting and policy formation.
The ability of the DGA to have a management role in a basin is extremely lim-
ited. The DGA is not allowed to interfere with any third party water rights, once
they have already been granted. During times of drought, this is expressly provided
for under Art. 314 (Water Code) that states that if a third party is affected due to
declaration of hydrological scarcity, the state is responsible for compensation. This
provision refers to the protection granted to rights holders from negative impacts of
decisions taken by the DGA during a declared drought period, specifically the per-
mission for water users to access groundwater to which they do not have permanent