Water and the Law
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Water and the Law

Towards Sustainability

Edited by Michael Kidd, Loretta Feris, Tumai Murombo and Alejandro Iza

Water and the Law examines the critical relationship between law and the management of water resources in the context of ensuring environmental sustainability. It highlights the central importance of integrated water resources management and cooperation in achieving sustainability. The book considers two broad themes: how law can contribute to the sustainability of water itself and how the law’s regulation of water can contribute to the sustainability of life – both human life as well as that of other species in their natural environment.
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Chapter 15: The endless struggle of indigenous peoples in protected areas – the Bushmen’s challenge for water rights in the Central Kalahari Game Reserve

Alexander Ross Paterson


In the words of the French playwright Jean Giraudoux, writing some seventy years ago, ‘water is the one substance from which the earth can conceal nothing; it sucks out its innermost secrets and brings them to our very lips’. I would argue it is similarly the one substance from which humans can conceal nothing. It has forced us, and will continue to force us, to confront the harsh realities associated with our human impacts on the Earth’s diminishing resources and to grapple with the challenge of balancing the rights and interests of different sectors of society to use and conserve these resources. The Kalahari Bushmen’s protracted struggle to secure first their land rights and secondly their water rights within the Central Kalahari Game Reserve situated in Botswana provides an excellent scenario for reflecting on these challenges. In 2006, the Bushmen succeeded in their High Court application to secure their land rights within the Reserve. Four years later the High Court rejected their application to confirm their rights to source water within the Reserve, a judgment that effectively nullified their hard-fought land rights, as without access to water their desired physical occupation was untenable. In a landmark ruling handed down by the Botswana Appeal Court in 2011, the decision of the High Court was overturned – thereby enabling the Bushmen to sink boreholes within the Reserve necessary to sustain their livelihoods within it. This latter case, Mosetlhanyane v The Attorney General (Mosetlhanyane Case (2011)) forms the focus of this chapter.

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