Balancing Structural Con fl icts Across Scales to Develop and Mobilise Adaptive Capacity - Climate Change and Water Governance: Adaptive Capacity in Chile and Switzerland - page 303

adaptive capacity with 'regulated flexibility' through local preparedness and
planning, while providing the necessary support, guidance, and resources at higher
scales represents a challenging but initial step in the right direction to address the
trade-offs in developing reactive and proactive adaptive capacity.
An area that policy and law makers should focus on is the challenge of how to
best utilise legal provisions and regulations to guide and encourage adaptive behav-
iour without handcuffing water managers and stakeholders to codified rules which
may be out of date in future years. In pursuit of this goal, more attention could be
paid to how best to utilise elements of procedural law that provide structure while
building in flexible instruments that provide a timeframe and process for review and
the establishment of new goals that fit the present day reality, rather than the reality
when the law was origionally crafted and passed.
In the Swiss case, the implementation plan of the TRC has provided for a period
of review every 10-20 years, to ensure that the plan is constantly updated to be
appropriate to the best available science. Lessons could be drawn from the provi-
sions in the implementation plan that provide for this type of structured process of
review in areas of contract and administrative law that govern hydropower conces-
sions and irrigation prioritisation. Furthermore, lessons could be drawn for the
Chilean case, where the rule of the Water Code and supposed legal certainty pertain-
ing to water rights are major challenges for adaptation in the water governance
system.
Legislation and property rights concerning water resources could be subject to
provisions that allow for 10 year review processes of the underlying data upon
which the assumptions for the validity of those provisions are made. While this still
allows for goals and normative principles to be set in stable legal structures, since
stationarity of the system cannot be assumed, greater flexibility for experimentation
at lower governance levels could be provided for by enhancing the networks that
already are in place (Cosens 2010 ). Establishing or strengthening the requisite insti-
tutional channels (formal forums and planning processes and informal networks
with multi-purpose incentives) for collaborating amongst stakeholders and facilitat-
ing information exchange could also help address this particular challenge.
Both the cases highlight the challenges of integrating shifting hydrogical base-
lines into substantive law. Autonomy and strong property rights at the user level
(Chile) or local level (Switzerland) can fragment adaptive responses, and present a
major barrier to proactive and integrated planning and management of water
resources for more complex challenges. However, referring back to Part I, jurists
have highlighted that rights are an area of the law constantly re-negotiated and sub-
ject to cultural frames of reference. The Chilean water rights system has itself
changed twice in the twentieth century. While this in itself has left the system quite
broken and unclear, it does suggest that the current impasse over the Water Code
and associated protection of constitutional water rights might not be as fixed and
impenetrable as has been assumed.
Competing interests and non-integrated priority setting are two of the biggest
challenges in developing more transformative and sustainable adaptive solutions in
both cases. In order to balance competing interests at different political levels and