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Luttes pour l’eau dans les Amériques

 | 
Chloé Nicolas-Artero
, 
Sébastien Velut
, 
Graciela Schneier-Madanes
, 
et al.

II- Accaparement de l’eau et dynamiques spatiales : quelles interactions ?

Chapter 6. Dispossession and the Water Law in Chile. The case of the Elqui Valley

Chloé Nicolas-Artero

Texte intégral

Introduction

  • 1 Author’s translation.

1The present chapter aims to explore the accumulation by dispossession process from the standpoint of the legal geography. It highlights the geo-legal devices that lead to water concentration and accumulation of capital by the extractive sectors. Those activities are characterized by the production of capital gain by dispossession of natural resources through political and legal means. Already in 1913, Rosa Luxemburg defined dispossession which “concerns the relations between capitalism and the non-capitalist modes of production, […] Force, fraud, oppression, looting are openly displayed without any attempt at concealment, and it requires an effort to discover within this tangle of political violence and contests of power the stern laws of the economic process”1 [Luxemburg, 1969[1913], p. 116-117]. This reflection challenges Karl Marx’s concept of primitive accumulation. According to Karl Marx, primitive accumulation constitutes the original accumulation prior to capitalism, whereas Rosa Luxemburg affirms that capitalism thrives upon non-capitalist activities.

2Nowadays, different authors are studying the persistence of these predatory practices of accumulation [Dardot & Laval, 2015; Perelman, 2000; McDonough et al., 2010]. According to David Harvey [2003], the features of primitive accumulation “remain strongly present until today in the heart of [the] historical geography of capitalism” [Harvey, 2003, p. 140]. Nevertheless, he doesn’t propose a consubstantial definition of what he calls the accumulation by dispossession process. He characterizes it by its multiples process—uprooting of peasants, proletarization, privatization of resources, biopiracy, etc.—or by its finality: “what accumulation by dispossession does is to release a set of assets (including labor power) at very low cost (and in some instances zero) cost. Overaccumulated capital can seize hold of such assets and immediately turn them to profitable use” [Harvey, 2003, p.149]. He affirms, by quoting Rosa Luxemburg, that it’s difficult to qualify precisely laws of the accumulation by dispossession process because its modus operandi is contingent and fortuitous.

3Concerning water, David Harvey alludes to laws conducting to water services privatization and water commodification: “many formerly common property resources, such as water, have been privatized (often at the World Bank insistence)” [Harvey, 2003, p. 145-146]. By limiting himself to citing these laws, David Harvey demonstrates the legal formalism and functionalism at work. He conceives law and laws as a given that looms over society and that unequivocally applies to space. The latter, in this sense, appears as a simple container or as a receptacle of human activities. Thus, law seems to be thought as a state domination tool, serving the interests of the upper classes.

4Legal geography [Blomley et al., 2001; Braverman et al., 2014] proposes a number of conceptual and methodological tools which depart from the functionalist view of law. The present paper investigates the concept of geo-legal device [Garcier, 2009a] to understand legal and spatial process of accumulation by dispossession of water in Chile. It thus extends the existing reflections on the concept of water grabbing [Mehta et al., 2012; Tetreault & McCulligh, 2018] or dispossession of water analyzed from political ecology [Prieto et al., 2019; Mena-Vasconez et al., 2018; Hendriks & Boelens, 2016; Perreault, 2012; Birkenholtz, 2016; Heynen et al., 2006]. These approaches are mainly concerned with the economic mechanisms of dispossession and particularly with the actions of transnational corporations since the 1990s. Like David Harvey’s approach, the study of the role of the State often shows a certain formalism and legal functionalism [Bourdieu, 1986] and is limited to examining the degree of legality of its interventions or the formality and applicability of laws. Moreover, authors rarely systematize the mechanisms of these dispossessions, apart from the “Echelons of rights Analisis” [Boelens, 2008], which proposes an inter-scale approach of the processes. The concept of geo-legal device “allows to analyze in the same movement legal provisions, games of actors and the space itself as it is transcribed in the law and produced by the actors” which produce space [Garcier, 2009a, p. 219]. Studying these geo-legal devices implies scrutinizing the rules, the strategies of the agents facing these rules, and the territorial framework in which these strategies are deployed (but that are also partly created by them). Rules refer to texts of law, but also to the various instruments of public action defined as “technical and social device which organizes specific social relations between the public authorities and its beneficiaries according to representations and meanings of which is leading” [Lascoumes & Le Galès, 2004, p. 17]. Strategies of agents are based on re-appropriations and productions of law made through their choices, defined by the habitus and/or their awareness of the law [Bourdieu, 1986]. In this chapter, I will focus on civil servants’ decisions when applying laws. Those decisions are embedded on specifics views on Law and space. Finally, territorial framework refers both to space mobilized by agents—either a resource space, or an object of conflict—and to space produced by the agents’ strategies and the expansion of capitalism [Lefebvre, 2000].

  • 2 Dwellers, peasants, and farmers disposing of less than two hectares.

5Through which geo-legal device do agents create or reclaim law and space to concentrate water by dispossessing small users?2 Based on the Elqui River Basin case study, I discuss in this chapter the hypothesis that three geo-legal devices explain the legal and spatial modalities of water accumulation by dispossession. The research methodology is based on semi-structured interviews (120) that took place between 2016 and 2018. I conducted interviews with various water users from the valley (farmers, mining companies, agro-industries, drinking water providers) all members of local water user organizations and the leaders of both Juntas de vigilancia, which are the organizations responsible for the distribution of surface water in the basin. In order to understand the construction of geo-legal devices, I interviewed civil servants responsible of applying legal norms, including those of the Superintendencia de Servicios Sanitarios (SISS), the Dirección General de Aguas (DGA), the Direccion of Obras Hidraulicas (DOH) and Servicio Agricola y Ganadero (SAG), at regional and national level. The collected information is cross-checked with interviews and data from water property records (1950 - 2016) of Conservador of Bienes Raices (CBR) Vicuña and La Serena. Participant observation of water organizations and rural villages during a nine-month field work completes these primary sources. I will show how geo-legal devices—as water concessions granted by Dirección General de Aguas, water markets and exceptional devices—entail a concentration of water rights by agro-business, real estate and mining corporations and explain the expansion of capitalism in the valley.

The Granting of Water Rights by the State: a Geo-Legal Device

6The first geo-legal device is formed by the DGA’s procedure of granting water rights. Its limitation in measuring extractive sectors’ damages to other users results in the dispossession of smaller users.

From Lack of Priority Use…

7The Chilean Water Code doesn’t recognize a priority of use in granting water rights, which means that the State doesn’t guarantee access to water as a human right. In case of a request for the same use, it cannot prioritize according to the applicant or the usefulness of the application. In fact, when someone applies to register a new right, the administrative authority, DGA, doesn’t consider intended water use. The DGA checks only whether a new user may prejudice another. If two people solicit a right on the same point, the DGA puts it to auction. So, this legal system prioritizes persons and firms with higher economic capital and leads to the ineluctable concentration of rights by the agricultural and mining corporations.

  • 3 Public register of water– Region of Coquimbo, DGA.

8In addition to the lack of priority in granting concessions, a second important characteristic is the limitation in granting a new concession law occurs only when it harms another user. These two characteristics are embedded in the principle of prior tempore, prior iure [Martin & Pinto, 2015]. In Elqui Valley, this principle has led to a concentration of water rights by agro-industries. Since 1973, the DGA has granted permits for 10.278 liters per second of groundwater, out of which 55% for agricultural uses, 10% for mining and 22% for domestic use. Concerning the surface water, the DGA granted 9.465 liters per second, out of which 93% for agricultural use, 3% for mining use and 4% for domestic use.3 The DGA has favored extractive sectors.

… to Dispossession as Punishment for Non-Regularization

9Concentration of water rights by extractive sectors is favored by the limitations of the procedure to measure prejudices on other users. In order to recognize the existence of damages, users who consider themselves prejudiced must engage costly administrative procedures. They are informed about registration of a new right near their water catchment point by reading requests for new registrations in official regional newspapers. All the inhabitants in the valley do not usually follow daily new registrations. When they feel wronged, they alert the DGA. In this case, a civil servant assesses on the spot if the user is affected. Only since 2005, water code has established that new water catchment points must be at least at 200 meters from the pre-existing ones. Before that date, the decision depended on the civil servant’s appraisal. This intransitive inscription of space-in-law [Garcier, 2009b] highlights material and spatial dimensions of water property rights definition and the importance of civil servants’ spatial interpretations.

10However, this procedure takes place only if the prejudiced user has a formal water right. That is to say the water right must be registered in his name in the property registry at the local Conservador de Bienes Raices (CBR). If it’s not the case, the new owner dispossesses him of its use, even if he has enjoyed it for a long time. Indeed, if the right is not regularized, it has no legal validity. In many cases, the underprivileged rural populations, sometimes illiterate, lose their rights because they have no knowledge about the new rules, nor the means to finance procedures with the DGA in order to regularize their rights. Water code recognizes three procedures for regularizing water titles granted or titles linked to previous use.

11The first procedure is the regularization of inherited water rights. Many people don’t do this because of its cost and time. It is enshrined in Article 2 of the transitory provisions of Book 3 of the water code. Often, for people from disadvantaged classes, the costs of these procedure would constitute a large part of their income. In addition, these procedures are perceived as complex. People undertake them only if they perceive an interest in doing so, for instance in a case of conflict or of water scarcity.

12The second procedure refers to the regularization of water rights used continuously for five years, since 1976. It is enshrined in Article 1 of the transitory provisions of Book 3 of the water code. The user who consumes water constantly, uninterruptedly and without damaging another one may request the registration of a title in his own name. This regularization is carried out by judicial means: the judge decides on the possibility of full water right. Before that, the applicant must carry out an administrative procedure with the DGA by proving that he has made uninterrupted use of water for five consecutive years. Then, a DGA civil servant verifies the claim by making field observations. This procedure reflects civil servants’ power to express and apply the law, which rely on their observations to evaluate admissibility of the application for regularization. To do this, civil servants evaluate the state of drilling and its degree of use. Then, they report material facts around drilling sites revealing the use of water for irrigated agriculture. These observations depend on the spatial perceptions of civil servants and present limits when it comes to determining uses that leaves no sign on the landscape [Brunet, 1990] such as occasional watering of animals by crianzeros or any other unproductive uses. Finally, this regularization reinforces inequalities of access to law since not all applicants have the economic capital necessary to benefit from the services of a lawyer.

13The third procedure concerns the regularization of rights granted by the Corporación de Reforma Agraria (CORA) during agrarian reforms. It is enshrined in Article 5 of the transitory provisions of Book 3 of the water code. Due to the lack of a systematic redistribution of water rights during these reforms, the Servicio Agricola Ganadero (SAG) institutional heir of CORA, realizes or modifies “Water Rights Technical Division Studies” to determine the amount of water rights titles associated with land titles. Thus, SAG carried out these studies little by little when a person informed of this procedure goes to Santiago to regularize his rights. On several occasions, civil servants from the legal unit of SAG repeated to me: “We do emergency work”. If the project is non-existent or defective, the applicant must pay the study. As a result, since the agrarian counter-reform, SAG has published 14 resolutions to create or modify these studies, but only seven of them, published between 1984 and 1987, establish a new water distribution.

  • 4 Consciousness can be defined as “all the ideas about the nature, function and operation of law held (...)

14An approach from consciousness legal studies4 [Sarat, 1990; Commaille & Lacour, 2018] highlights the dispossession process of disadvantaged populations distinguishing those who are “against the law” from those who are “with the law”, following Ewick et Silbey’s terminology [2004]. These procedures require that potential holders activate their rights through several steps in order to gain access to them.

15On one hand, upper class users who are considered to be “with the law” are favored in registering their water rights, because of their skills, knowledge and legal consciousness. They use law strategically to defend their economic interest. This position is tied to their social proximity with lawyers and members of the public office or to their capacity to pay for a lawyer. It is reinforced by a number of grant and regularization procedures that multiply their possibilities of concentrating water rights. In the valley, agro-business, mines and real estate corporations take advantage of these legal procedures.

16On the other hand, underprivileged classes, peasants or small users, are “facing the law” and subjected to it. They are dispossessed of their right to use water because they don’t possess the economic and social capital to defend their interests by using the law. Indeed, they have neither the economic and social capital nor the reflexes to carry out administrative procedures and to assume their cost, a behavior which leads to dispossession as sanction for non-regularization. In the case of water law, the social origin of individuals determines a specific position in relation to it, underlining how “the legal consciousness of ordinary citizens is not a unitary phenomenon, but must be situated in relation to particular types of laws, particular social hierarchies, and the experiences of different groups with the law” [Nielsen, 2000, p. 1055].

17More generally, these regularization procedures reveal the opposition between a legal system based on orality and modern law based on writing. The latter is essential to the recognition of property since it builds up the legitimate symbolic violence whose monopoly belongs to State [Bourdieu, 1986]. Before that, and still sometimes in certain places, orality, trust and knowledge among inhabitants are enough to allow them enjoying and proving a right of access to water. We then understand where the disadvantaged classes’ lack of regularization comes from, and why they don’t register their right even if they enjoy its use. Often, these inhabitants perform regularization only if they plan to make a profit of it or if they feel threatened by another user. In recent years, the State has encouraged these procedures, a fact which reveals a form of extension of the force of modern law to isolated regions. For instance, to qualify for irrigation improvement grants from state institutions, users must have regularized titles. In addition, the State, through the MOP, finances programs to regulate water communities and water titles, particularly during dam construction, for each user must pay a contribution. The purpose of this intervention is the payment of a contribution to the State, the increase of water control in the territory and the extension of the private water property reinforcing the water market.

Water Markets: A Geo-legal Device Favoring Dispossession of Small Users

  • 5 They are not all declared and registered in the Registers of property of the Conservador de Bienes (...)

18Water market represents a second geo-legal device that lead to concentration of water rights by agricultural, mining and real estate corporations to the detriment of small users. The water market is understood as sales of formal water titles and water volume. The latter is called by some authors as rented water titles.5 The literature has emphasized the role played by the institutions in the social construction of markets. According to the neo-institutionalist approaches [Petit, 2004; Hadjigeorgalis, 2004; Alevy et al., 2010], the legal framework is insufficient for the emergence of the market as a political and historical institution. However, the water market is not only produced by the weight of institutions. These approaches don’t sufficiently question the spatial dimension of these processes. In this chapter, we will analyze the market as a geo-legal device. This stresses both legal and spatial conditions of the water rights and water volume exchanges. These are based on the appropriation of the technical objects related to water (dams, canals, automated valves) and the appropriation, redefinition and production of local rules by agents, with the aim of making their investments profitable or survival. In this sense, market as a geo-legal device highlights the processes of dispossession of water suffered by the so-called small users.

Geo-Legal Device and Extractive Sectors’ Looting Strategies

19At first, water market is generated by a new national legal framework: the recognition of water private property and thus, the free disposal of water titles, as we see it in the water code of 1981 and the 1980 Constitution [Bauer, 2015; Vergara Blanco, 2014. These rules respond to the wish to apply the New Resource Economy in the management of the water resources [Petit 2004; Prieto, 2015]. Water property is then separated from land property. Each holder can sell, rent or buy water rights.

20Secondly, at the local level, the State, through the DOH or the DGA, funded water titling programs to strengthen legal security over water rights, which is a necessary condition for market transactions. These apply when the State intervenes materially in a territory. In Elqui, it was during the Puclaro dam construction (1993-1999). The recognition of debt from users towards the State legitimates its intervention to regularize titles.

21In addition, declarations restricting areas by the State prohibit the DGA from granting new water rights, which leads to a demand increase for market rights. Prior to these restrictions, it was less expensive to request a new water right. In Elqui Valley in the 2000s, transactions increased when the DGA declared several areas of restrictions.

22Finally, water technical objects make water transfers easier. They result from state investments which have acted as “spatial fix” [Harvey, 2003], facilitating the expansion of capitalism in the valley since the 1950s [Nicolas-Artero et al., 2018]. The re-appropriation of these technical objects and of the law by the new capitalist agents (agro-industries, mines and real estate corporations) leads to four distinct water markets. They take different characteristics according to the legal strategies and the localization of agents that produce different spaces in the area under consideration.

23At the mouth of Elqui River, real estate corporations and water private company Aguas del Valle S.A. create a permanent market which contributes to the urban sprawl of La Serena-Coquimbo conurbation. Main buyers of water rights on a permanent market are firms linked to the real estate business. Former landowners, peasants or holders of water titles ceded by the State before the first water code (1951), called “mercedes de agua”, sell their water rights. There are often “derechos de papel” that aren’t used because of land use changes provoked by the urbanization that makes irrigation canals unusable [Bauer, 2015]. Real estate corporations then transfer their water rights to private corporations in exchange for an extension of water and sanitation network to peripheries where real estate construction projects are located.

24Downstream from the Puclaro damn, the formation of an informal temporary market, or Spot Market [Hadjigeorgalis, 2004] contributes to commercial agriculture development. Water right holders rent it to another user informally. The new water right tenant has a right to use water for a limited period. These transactions take place mainly among agricultural entrepreneurs who have benefited from the consolidation of irrigation canals and the installation of automated valves which facilitate the transfer of water volumes. They reveal the existence of informal legal arrangements between farmers sharing a section of the common canal, particularly in Pan de Azucar and La Compañia areas, where the expansion of the agriculture has been achieved through a canal extension. As a result, entrepreneurs adjust their quadrennial crops based on seasonal forecasts, sale prices and domestic market demand.

  • 6 Interview, commercial de Netafim, La Serena, 2018.
  • 7 Organization in charge of water surface distribution in the basin.

25The expansion of San Geronimo and Teck de Andacollo mining projects, located downstream of the dam, is based on a temporary market. These corporations use the services of the Israeli company Netafim to achieve water savings through technical innovation in their productive process. This allows corporations to rent their unused rights on temporary markets to avoid payment of the fine for non-use of water.6 For these agents, water becomes a financial asset placed on the market to increase its profitability. In addition, San Geronimo Mine, like Aguas del Valle S.A., signed an agreement with Junta de vigilancia del Rio Elqui  7 to purchase water volumes in exchange of their participation in the reimbursement of the dam. In this sense, the Junta acts as a private water bank, as “a central institution that acts as a clearinghouse for users who wish to purchase or sell” [Hadjigeorgalis, 2009, p. 52]. These conventions reveal the production of local rules facilitating water purchases.

Sale of Water Rights by the Disadvantaged Population Under Economic Constraints

26The consultation of property registers on CBR water reveals that most of formal transactions are between small water rights holders. They are physical persons who exchange fractions of water stocks. These are meant for plot irrigation, vegetable gardens or recreational and landscape use for tourism. Transactions take place between holders from less renovated canals—located mainly upstream of the dam—since this reduces transaction costs (change of capture point, absence of automated valves).

27Sales of water are part of a survival strategy for agents who use their rights as an active portfolio. They sell them according to their economic and social needs. Gains are used to pay for health, housing, schooling, or debt. The president of the Junta de vigilancia of Estero River exemplified their motivations:

  • 8 Interview with manager of Junta de vigilancia del Estero Derecho.

"Because of necessity and because: ‘well I have three shares and, damn it, I need money and I’m selling one! ’ […] You see! ‘I sell a share, damn it, because I have to buy a car!’ Or ‘I have to do it because, and damn, I’m in trouble, so good, I propose it and I get it!" 8

28This situation cannot be understood without considering the national economic context since the 1973 coup, and the subsequent privatization of basic services, as well as household indebtedness [Moulian, 2002]. Small holders enter the water market under economic constraints. It represents a form of dispossession of their water rights which benefits agro-industrial, real estate or mining corporations or other small users.

  • 9 The desmarque represents a percentage of water distribution calculated based on the average flow of (...)

29The purchase of fractions of stocks by other small users is part of a wish to acquire water rights to secure their water access. Often, these purchases represent a derisory amount of water. This may be explained by a misunderstanding about the correspondence between the unit of measurement imposed by the State and the Junta de vigilancia—liters per second—and the unit of measure used in water round of canals—in number of hours or in cuadras [Boelens, 2009]. These purchases highlight also the despair of inhabitants facing low water flow due to the application of desmarque,9 water thefts, or losses by infiltration or evaporation. In addition, acquisition of rights increases the possibility of households to get into debt with banks as evidenced by the register of water mortgages at CBR (see Figure 1). Water rights are transformed in bank guarantee since their value exceeds that of land or property.

Figure 1. Sales and mortgages of water rights in the Elqui Valley between 1950 and 2016

Figure 1. Sales and mortgages of water rights in the Elqui Valley between 1950 and 2016

Source: Chloé Nicolas-Artero, 2020. Conservador de Bienes Raices Vicuña et La Serena

Geo-legal Device for Water Granting in Exceptional Context

30The law recognizes two exceptional procedures: an article of the Water Code added in 2005 and the Water Shortage Decree, establishing a state of emergency in water matters. These exceptions facilitate water grabbing for agricultural, mining and real estate companies.

Reappropriation of a Law by the Dominant Group

  • 10 Transitional Articles 4 and 5 of Book X, Water Code 1981.
  • 11 Comments on the law 20.411 of December 18, 2009 which modifies these transitional articles.

31Since 2005, two transitional articles of the Water Code10 have created an exception to regulate customary water rights. These articles are intended to facilitate the recognition of water rights to users who cannot regularize their titles. However, firms have diverted the law to register new rights. Indeed, these articles made it possible to simplify the two normal procedures for the regularization of water rights for customary domestic and/or subsistence purposes, which are enshrined in Article 2 of the Water Code. Small farmers, indigenous communities, farmers and drinking water committees did not have the legal and financial conditions to register and regulate their water rights in the normal way. This was particularly related to the fact that the DGA declared restriction areas in most watersheds, which limited the recognition of rights. Those articles allow the DGA to register the water rights of such users in an exceptional procedure. For this, they had to submit their applications for a period of six months after the promulgation of the law. The DGA extended this period for another six months and in that time, it received more than 55.600 requests.11

  • 12 Law 20.411 of December 18, 2009.

32While these articles aimed to recognize the right of water to the poorest, top users, including agribusiness companies, have filed applications. This demonstrates the strategic appropriation of the law by the ruling groups in order to monopolize water rights. To avoid this, in 2009, a new law12 changed the conditions for applying to this exceptional procedure. It defines and limits rights recognition areas to all users except “small agricultural producers”, “peasants” and “indigenous communities”. This makes it indirectly possible to exclude applications from extractive companies. The actors’ play around these articles shows how an exception to the water code, developed to facilitate the procedures for regulating the water rights of disadvantaged social groups, is re-appropriated by capitalist firms to concentrate water.

The exceptional Devices Of The DGA Produce Real Estate Speculation

33The last geo-legal device emerged when executive power issued a “Water Drought Decree”, inscribed in Article 7 of the Water Code, which establishes a state of exception [Agamben, 2003]. Procedural norms of water code no longer apply, and administrative authorities get an extensive power. In the Elqui Valley, the first decree was enacted in 1990 and then replicated again in 2014. The DGA has extended the decrees six times after an initial period of six months, due to the absence of any limit in the law. In this way, DGA civil servants were given a lot of power that could be dangerous [Martín & Pinto, 2015]. The decree makes the acceleration of certain procedures regarding granting and characterization of water rights possible, for instance changes in drilling points. It establishes a geo-legal device for granting and modifying legal characteristics of water rights in an exceptional context (cf. paper by Liber Martín in this volume). Swiftness in procedure is linked to an arbitrary decision which no longer complies with normal conditions defined in the water code. Therefore, decision power is based on the criteria applied by the civil servants acting on behalf of the State [Bourdieu, 1990]. In this exceptional context, even more than in a normal context, civil servants are creators of law, because through their choices they dictate water law [Hoekema, 1994]. Thus, they may favor some users, a fact which raises questions of inequality before the law [Martín & Pinto, 2015].

34In the Elqui Valley, the state of exception allows the private provider, Aguas del Valle S.A., to concentrate water rights and expand its distribution networks. The DGA authorizes drilling points modification in order to overcome the water law limits. Indeed, exception is understandable only in relation to the crisis of the norm. In this case, there are the code’s shortcomings in distribution in ordinary drought situation by the application of a proportional distribution or water rounds. In the Elqui Valley, water user organizations apply those two instruments on a daily basis. Despite this, private providers don’t have enough water resources to fulfill the growing urban water demand. The lack of priority of use for domestic consumption reinforces this problem. Thus, only an exceptional situation can address this disbalance. This was the case in the Athens crisis studied by Kaika [2003]. According to his observations, “the fusion of a political crisis with a natural crisis, accentuated by a powerful public rhetoric casting nature as a source of crisis, that facilitated the almost uncontested implementation of a number of ‘Emergency Acts’ of questionable soundness and transparency” [Kaika, 2003, p. 927].

  • 13 Interview, civil servant of SISS, Santiago, 2017.

35The state of emergency makes it easier for providers to extend networks with the perforation of new wells after having obtained an authorization for modifying drilling points. As explained by SISS’s civil servant: “They build wells like crazy people, and they draw water and extract without right!”13

36In many cases, the water provider carries out drilling without authorization. Faced with reiteration of this phenomenon, the DGA asked SISS to evaluate the real provider needs and to assess if drilling responds to a growth in water demand. The civil servant of SISS, former employee of Aguas del Valle, explains:

  • 14 Ibid.

"Sometimes I make observations and so… But I will not say: ‘no po, you know no!’. That is a human right, for me it’s a human right to water, it’s not something that is bought or… It is basic to take care of it! So, now if Aguas del Valle has had a history of how, it has exploited many sources with rights in process and does nothing to regularize."14

37Thus, in an exceptional situation, civil servants from SISS have a discretionary power to authorize extraction without rights or drilling points modifications. Civil servants, for reasons of so-called ethics and social responsibility, but also of class solidarity with their former colleagues, give these authorizations to guarantee the human right to water.

38However, a spatial approach highlights how the extension of the water distribution network allows real estate speculation. That’s why real estate firms plan with the water company to extend its distribution network towards the periphery where their projects are located. While attending a meeting of the Camara Chilena de Construcción de Coquimbo, I understood the strategy of real estate corporations:

  • 15 Field notebook notes, 2017.

"New residential projects are feasible only if they are connected to the water network. But often they are outside the corporation’s area concession. If Aguas del Valle S.A wants to expand its networks, it must comply with Article 52bis of D.F.L. MOP Nº382/88, which requires its seeking prior authorization from SISS. SISS grants it only if the provider has new rights to meet the future demand of the population. This situation explains arrangements between the provider and real estate corporations. Before requesting extension of the network to SISS, Aguas del Valle S.A asks corporations to provide water rights, presented as a guarantee to meet the increase in demand. After the authorization of SISS, Aguas del Valle requests to the DGA a modification of drilling points."15

39Thus, real estate corporations and the provider distort law in an exceptional context in order to concentrate water rights and to speculate on the real estate market. This exceptional procedure explains why real estate corporations seek to acquire water rights in the basin. Nevertheless, this solution responds to a partly fictitious demand for water, linked to the supply of a real estate bubble detached from real demand for housing and water. These arrangements highlight the geo-legal device in exceptional context that promotes water concentration by real estate corporations and the provider to reinforce real estate development. By favoring these agents, the state of exception perpetuates financial capitalism, since its mining capital and pension investment funds to supply La Serena-Coquimbo’s real estate sector [Rehner & Rodríguez-Leiva, 2017].

Conclusion

40This chapter offers a contribution to the reflection on accumulation by dispossession from a geographic perspective. Accumulation by dispossession is different from the primitive accumulation defined by Karl Marx. However, it is not based only on the absorption of non-capitalism sectors as proposed by Rosa Luxembourg. To go along with what David Harvey says, I maintain that the appropriation of space is central to this process. Nevertheless, in this chapter, I propose a consubstantial definition of accumulation by dispossession. This process is fundamentally based on the re-appropriation of law and space by the dominant groups, namely the firms supported by civil servants. The dispossession of dominated groups occurs because of unequal access to resources and legal skills, as well as a different consciousness of the law. These unequal relations with the law are based on an unequal society and reproduce it, thus supporting the circulation of capital.

41More precisely, this chapter systematized the way in which water law established by the State is re-appropriated locally in order to favor the concentration of water by extractive sectors. It uses the concept of geo-legal device to scrutinize the processes of accumulation by dispossession of the water. Through the observation of this “law in action” at the State level, it highlights the ways in which extractive corporations concentrate water: through its commercial acquisition or its forced grabbing. Three geo-legal devices are covered: the granting of water rights by the state, the water market, and the water granting in exceptional context. This geo-legal and historical approach highlights the continuities and breaks in the instruments of public action of water and their spatial repercussions.

42The analysis of these geo-legal devices reveals the state in action by studying the “law in action”, applied by the decisions of civil servants. In this sense, legal geography provides the methodological and conceptual tools to examine the role of the state in the process of water accumulation by dispossession. The existing literature has often characterized the stratagems of transnational corporations in the water accumulation. In these processes, the study of the role of the state has been limited to the analysis of neoliberal laws that facilitate the concentration of water through privatization or commodification of resources. For others, weak states or institutionalized corruption explain this phenomenon. These researches tend to conceive the Law and the laws, set by the State, as overarching facts applied unequivocally and homogeneously to spaces and places. The former appears, in this sense, as a simple container or receptacle of human activities. The Law seems to be only thought of as a State tool of domination in the interests of the dominant classes.

43The concept of geo-legal device facilitates the comprehension of water accumulation by dispossession processes by taking distance from a legal formalism often present in critical approaches. It highlights, first, civil servants’ power and their spatial perceptions in these processes (assessment of prejudice, authorizations in context of exception). These also cannot be understood without integrating Chilean society’s economic and social inequalities in the analysis. Indeed, inequality in access to and consciousness of law, as well as the economic precariousness of inhabitants, explain water dispossession (absence of regularization, sales of water by small users). Finally, the geo-legal device concept highlights the collusion between civil servants and entrepreneurs to develop water concentration strategies. Their decisions are favorable to the extractive sector, which involve the material appropriation of technical objects, the production and distortion of rules, and a rhetoric if justification used in the name of the human right to water access.

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Notes

1 Author’s translation.

2 Dwellers, peasants, and farmers disposing of less than two hectares.

3 Public register of water– Region of Coquimbo, DGA.

4 Consciousness can be defined as “all the ideas about the nature, function and operation of law held by anyone in society at a given time” [Sarat, 1990, p. 34]. For authors who belong to this current, the term consciousness can be substituted by ideology. “Consciousness and ideology are used instead of attitudes because speaking about attitudes toward or about law suggests a radical individuation, a picture of persons influenced by a variety of actors, thinking, choosing, deciding autonomously how and what to think” [Ibid, p. 34].

5 They are not all declared and registered in the Registers of property of the Conservador de Bienes Raices.

6 Interview, commercial de Netafim, La Serena, 2018.

7 Organization in charge of water surface distribution in the basin.

8 Interview with manager of Junta de vigilancia del Estero Derecho.

9 The desmarque represents a percentage of water distribution calculated based on the average flow of the river defined from projections over four years. By applying this measure to the amount of water associated with each right, the flow of the channels is reduced. Because of their length and their earth cladding, water infiltrates and becomes insufficient to satisfy the needs of all users, especially those located at the ends of the canals.

10 Transitional Articles 4 and 5 of Book X, Water Code 1981.

11 Comments on the law 20.411 of December 18, 2009 which modifies these transitional articles.

12 Law 20.411 of December 18, 2009.

13 Interview, civil servant of SISS, Santiago, 2017.

14 Ibid.

15 Field notebook notes, 2017.

Table des illustrations

Titre Figure 1. Sales and mortgages of water rights in the Elqui Valley between 1950 and 2016
Crédits Source: Chloé Nicolas-Artero, 2020. Conservador de Bienes Raices Vicuña et La Serena
URL http://books.openedition.org/iheal/docannexe/image/10180/img-1.jpg
Fichier image/jpeg, 144k

Auteur

Chloé Nicolas-Artero is PhD in geography. She defended her PhD thesis at the Sorbonne Nouvelle University (Creda - UMR 7227). Since 2016 she has been teaching geography at the Institut des hautes études de l'Amérique Latine. In 2021, she began a postdoctoral fellowship at the Center for Climate and Resilience Research in Santiago de Chile (CR2, ANID/FONDAP/15110009). Her research focuses on the relations between law, water and the production of space. She recently published the following articles "Ensuring Access to Water in an Emergency Context: Towards an Overexploitation and Contamination of Water Resources?" (Social & Legal Studies, 2021) and "La construcción social del mercado de aguas en Chile: un enfoque desde la geografía legal" (Revista de Geografía Norte Grande, 2021). She received funding from CR2, ANID/FONDAP/15110009 to complete the publication of this book.

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