Stakeholder Councils and River Basin Management in Brazil

III Encontro da ANPPAS
23 a 26 de maio de 2006
Brasília-DF

Stakeholder Councils and River Basin Management in Brazil:

Democratizing Water Policy?

by

Rebecca Neaera Abers, Rosa Maria Formiga Johnsson, Beate Frank, Margaret E. Keck and Maria Carmon Lemos

Abstract

Since the 1990s, more than 100 river basin committees have been created in Brazil, following trends in other policy sectors to create stakeholder councils for public decision-making, with the participation of government, civil society and the private sector. The committees have legal attributions to negotiate conflicts, approve river basin plans, and define the prices for water charging, among others. Parallel to the creation of the committees, inter-municipal consortia have been created in some river basins, including local government, bulk water users and often civil society organizations. Unlike the committees, these are created on the initiative of their members, without formal legal attributions. This study analyzes these new forms of stakeholder participation in decision-making from the perspective of democracy. Based on a survey of 626 committee and consortia members in 18 river basins in Brazil, it presents preliminary data to evaluate the democratizing effect of stakeholder governance from two perspectives. The popular sovereignty view envisions new forms of decision-making as means for promoting greater control by socially and politically excluded groups over the state. The deliberative democracy view gives more emphasis to the creation of spaces where argument prevails and collective preferences can be formed through free discussion and debate. The paper suggest that in general, the committees and consortia seem to do better as spaces of deliberation than as mechanisms of popular control of the state. They are arenas in which socio-economic elites debate water related issues, with substantial participation of the organizations and constituencies they represent. Social inequalities among members affect, but do not jeopardize the deliberative process.

Stakeholder Councils and River Basin Management in Brazil:

Democratizing Water Policy?[i]

Rebecca Neaera Abers, Rosa Maria Formiga Johnsson, Beate Frank, Margaret E. Keck and Maria Carmon Lemos

One of the most significant institutional developments of the last twenty years has been the emergence of more flexible and participatory governance mechanisms in a wide variety of policy areas. A combination of factors, ranging from demands for greater democratization to calls for a smaller and more agile state that relies more on market mechanisms, are behind such institutional change. One aspect of this trend has been the decentralization of policy decision-making from central to local governments; another has been the proliferation of public-private partnerships; still another has been the widespread divestment by the state of direct responsibility for policy implementation either through full privatization or contracting out to private or non-profit entities. In the course of these efforts, a variety of participatory forums have developed in which the private sector, citizens groups, and representatives of state agencies work out solutions to policy problems, with varying degrees of authority over them.

Since the early 1990s, Brazil has engaged in a nation-wide, cross-sectoral experiment in stakeholder governance. National, state and municipal policies in areas such as health, social assistance, education, environment, and water management have created decentralized systems of councils across the public-private divide. They normally function on the basis of parity between state and civil society representations, engage in public dialogue about issues, and in many cases function as deliberative bodies with formal powers (Tatagiba 2002: 54-55). These councils have various kinds of decision-making powers, such as the definition of guidelines for local policies, the approval of management plans, budgetary oversight, and monitoring. In most cases, the government has no more than half the seats, and private sector and non-governmental organizations are elected to the council by other organizations in their category. Most of the several thousand stakeholder councils operating in Brazil today are organized at the municipal level, even when they are linked to national policies[ii]. Water management laws have taken a different tack, calling for the creation of committees at the river basin level, formed by representatives of municipal, state and sometimes federal government, bulk water users and civil society organizations. The laws also usually support the creation of less formal stakeholder councils, such as inter-municipal river basin consortia or waters users consortia. Municipalities, bulk water users and sometimes civil society organizations began to create such consortia in the 1980s. Although they are local initiatives that are not under the regulation of the water laws – technically non-profit organizations rather than public entities - they have come to play a central role in promoting stakeholder participation in some river basins.

Composition formulas vary, as we will see below, but in general the simple distinction between “state” and “civil society” has been broken up to recognize different levels and sectors of government, and different interests on the part of a variety of economic and social actors in civil society. Our main purpose in this paper is to explore the claim that these participatory mechanisms contribute to the democratization of decision-making. We consider their role as mechanisms for the exercise of popular sovereignty, on the one hand, and as spaces of deliberation, on the other. With regard to popular sovereignty, we ask whether stakeholder councils increase the control that society in general has over state decision-making; with regard to deliberation, we ask whether river basin committees create spaces in which the use of argument predominates as a means of coming to decisions about the public good. We argue that while these councils seem to be fulfilling their deliberative functions satisfactorily, they may still have a long way to go in substantially increasing popular sovereignty in water management.

To that end, we report preliminary descriptive results from a survey of 646 members of 18 such councils (14 river basin committees and 4 consortia) in various parts of Brazil, carried out by the Watermark Project in 2004.[iii] The survey was intended in part to test hypotheses derived from baseline studies of 23 river basin councils done by project participants in 2001-2002 (Formiga Johnsson and Lopes 2003), and in part to gather information about the members of these councils, their relationships to their communities and to other members, and aspects of the councils’ operation. The selection of the 14 committees was based on a sample frame of all the committees that had been functioning in Brazil for at least 2 years in 2003 (including 64 committees).[iv] Since similar information was unavailable for river basin consortia, we selected four that previous research told us represented very different organizational models and that were located in different regions of the country. In each council under study, all full members (membros titulares) were selected to be interviewed, substituted by their alternates when unavailable. Thus, for each sample, we effectively conducted a census of members (86% of members or their alternates were interviewed)[v]. In two councils, Itajai and CEIVAP, we also interviewed all members of the technical commissions and working groups of the committees. The selection of councils, however, cannot be considered a representative sample of river basin councils in Brazil, since it merely “resembles” the universe. Comparative statistical analysis of the committees is also limited by the low degrees of freedom, since both the universe and the number of councils selected is small. The preliminary results presented here thus are extremely cautious in making inferences about river basin councils in general. Our purpose is to establish some provisional conclusions for further research.

I. Democracy and water reform in Brazil

Brazil adopted new legislation governing water management in most states and at the federal level during the 1990s, with the first law passed in 1991 in São Paulo. The federal water resources law followed suit in 1997. The laws mandated integrated management for multiple uses of water, to take place at the river basin level, and shared among multiple public and private interests, via participatory basin committees and executive agencies. In principle, these were to be financed by the implementation of a bulk water charges system for users (e.g. industry, agriculture, sanitation companies, etc.). Legislation enabling other aspects of the new system, such as the National Water Agency, followed upon these first steps. The reformed system remains complex. River basins vary enormously in scale, and can involve up to three levels of democratically elected government (federal, state, and municipal), each of which exercises power in areas linked to water management either directly or indirectly. Although similar in intent and overall function, different states and the federal system adopt different models for the composition and specific role of stakeholder councils, and for how bulk water charging was to be implemented.

Several factors impelled Brazil’s water management reform (see, for example Formiga Johnsson et al. 2006, Abers and Keck 2005, Formiga Johnsson 1998). First, water experts in Brazil and internationally came to see traditional management systems as both overly centralized at the top, and too fragmented among different government agencies, with the private sector, civil society and local government largely excluded from decision-making. Hydroelectric energy production was accorded far greater priority than other uses, downplaying the needs of sanitation, agriculture, and other areas. With the growth of cities and of export agriculture, these sectors demanded more voice. In the international technical circles where Brazil’s highly trained water resource engineers participated, an emerging Integrated Water Resources Management (IWRM) approach (Conca, 2005; GWP, 2000) called for decentralized, participatory management for multiple uses, influencing the debate in Brazil. The French experience in water management, that included river-basin level management and user participation in a water pricing system, was particularly influential in Brazil, reinforced by bi-lateral cooperation projects between the two countries.

At the same time, “new public management” approaches to governance called for a more flexible bureaucracy, transfer of state responsibilities to private and non-governmental organizations, and replacement of “command and control” regulations with economic incentives designed to promote more rational behavior by market actors (Osborne and Gaebler 1992). These ideas became influential in Brazil as part of a broader “state reform” initiative during President Fernando Henrique Cardoso’s first term in office (1994-1998), a period of massive privatization of state enterprises, decentralization (Arretche, 2000) and legislation authorizing the transfer of public management to non-state sectors (Bresser Pereira, 1996).

Finally, for those pressing the democratization agenda in the aftermath of the highly centralized military regime that ended in 1985, decentralized, participatory approaches to public deliberation seemed to offer the most potential for bypassing entrenched interests. By the end of 1980s, the belief that those affected by policies (stakeholders) should have more access to decision-making was well disseminated, explaining why legislation in so many policy sectors incorporated stakeholder participation. In this context, stakeholder councils represented a step forward in the democratization process, and not simply a mechanism for “good” (effective) government (Carvalho and Teixeira, 2000).

The actual creation of river basin committees has been somewhat erratic. About one hundred committees have been created under varying state legislations including 5 federal committees (dealing with river basins that cross several states, or along national boundaries). They differ with respect to their compositions, their powers, their effectiveness, their internal dynamics, and even the reason they were created, since some resulted from mobilizations of local groups and others were created first “on paper” by government agencies, with mobilization occurring (or not occurring) only afterwards (Abers and Jorge, 2005). Some river basins have experimented with other forms of stakeholder management (in a few cases predating the new water laws), most notably the creation of consortia of municipalities, water users and sometimes civil society organizations that voluntarily collaborate around water management efforts. Each consortium has its own, internally defined structure and objectives, without attributions or compositions defined by legislation. Under these conditions of great diversity, it has been difficult for observers to make generalizations about the “success” of these new stakeholder institutions, or even the criteria for defining success. Rather than entering that debate here, we limit ourselves to a consideration of claims that such councils make decision-making more democratic, or at the very least, more open to widespread participation in the definition of policy goals.

II. Councils as Mechanisms of Popular Sovereignty

The argument that stakeholder councils contribute to giving excluded social groups more control over public decision-making runs along the following lines. Representative democracy and the bureaucratic state tend reinforce the power of elites and technocrats, while excluding a wide variety of social actors from the process. The Parliament and the Bureaucracy do not effectively represent the people’s will.[vi] For this reason, a more robust democracy requires mechanisms of direct participation capable of including these actors in decision-making. Much of the literature on “direct participation” emphasizes the importance of getting all citizens more involved in public decision-making, for three general reasons: participation promotes the self development of individuals as politically efficacious citizens (Pateman, 1970; MacPherson, 1977); participation increases citizens’ control over the state and protects them from the tyranny of elites and bureaucracy (Gutman, 1980:178); and finally participation is an inherent right that is necessary if individuals in a democratic society are to have “equal dignity” (Ibid:180).

At the same time, however, the literature on participatory democracy recognizes that it is impracticable to ask that all people participate in all forms of decision-making, especially where decisions go beyond the scope of local communities. Diverse mechanisms to circumvent this practical problem have been proposed, such as complex pyramidal systems of delegation from the local community to higher levels (ideas which inspired for example the original structure of the Brazilian Workers’ Party), systems of rotation, functional representation, etc..[vii]

In Brazil, stakeholder councils have been one of the most common manifestations of this desire to operationalize direct participation in public decision-making without attempting to include every citizen in every decision. Some authors locate the origins of the “council” concept in the history of worker’s struggles, especially in Gramsci’s ideas about “council communism” in which, through a bottom up system of delegation, local groups are connected to higher levels of decision-making.[viii] Popular movements that emerged in the late 1970s and early 1980s often organized informally, bringing together groups of neighborhoods, activist organizations, etc. into broader decision-making organizations called councils. With the transition to democracy, social movements vigorously lobbied for the creation of various kinds of councils in the 1986-87 debates around the drafting of a new constitution; the resulting document, promulgated in 1988, contained several articles stipulating the creation of participatory systems.

In practice, the actual structure of these councils bears little resemblance to their popular origins and socialist ideals (Tatagiba, 2002:54-55); councils are normally created at municipal levels or above, and are not part of a system of delegation going down to neighborhood or workplace. Further, representatives of popular movements are normally a minority in such councils. Ultimately this kind of structure – in which different social sectors are “represented” by a small number of organizations – appears on the surface to have more in common with European neo-corporatist forms of interest intermediation (Keck 2003; Teixeira 2000, 3), in which representatives of societal interests speak for and are accountable to clearly defined memberships organizations, and are able to make authoritative agreements with equally empowered representatives of relevant governmental or private actors. Although it is well known that the kind of organizational structures that are necessary to back up neo-corporatist decision-making do not exist in Brazil (Werneck Vianna, 1998), most Brazilian analyses of the council experiences begin by positing that in their optimal form, these bodies should promote popular sovereignty over the state, what is often referred to as “controle social” or social control of the state, by giving organized civil society greater access to state decision-making. As Orlando Santos Jr. (2003, 37) notes:

(… ) the councils are predicated on four principles: (i) in the representativeness of the institutions of the government at the executive level, that is, in the dynamics of the representative democracy process itself; (ii) in the level of commitment from the government toward these interactive channels between state and society; (iii) in the organization of society in civic associations so as to guarantee a semi-direct representation in the council’s composition; and; (iv) in the representation and autonomy of these organizations vis-a-vis the government (our translation).

The two most common critiques in the growing empirical literature on councils point out that they do not really have power over state decision-making, and that they cannot really be said to represent society, either because their compositions are skewed towards elites or because civil society is too weakly organized to monitor the actions of its supposed representatives. For both of these reasons, they fail to promote the ideal of popular sovereignty.[ix] Some analysts locate the causes of these weaknesses in deep social structures of inequality, that impede the development of legitimate organizations of interest representation (Werneck Vianna, 1998); thus it is no surprise that representatives on stakeholder councils sometimes lack “authenticity”. Further, state technical organs formally responsible for decision making in the council’s policy arenas often resist the notion of opening up decision-making to what they consider the unqualified masses (Lemos and Oliveira 2004). Despite these problems, much of the literature on stakeholder councils still evaluates them from the expectation of popular control of the state and we will follow suit in this paper although some of the authors have challenged those assumptions elsewhere (Keck, 2003; Abers and Keck, 2005). The question of whether stakeholder councils promote popular sovereignty and the accountability of the state to society leads us to three sets of questions for evaluating River Basin Stakeholder Councils, revolving around three aspects of sovereignty. If councils promote sovereignty, then they must include individuals from normally excluded groups (often called descriptive representation) (Mansbridge 2000), that is, they should reflect the actual composition of society. These members should be accountable to broader constituencies (what we call accountability). Finally, the councils should have real influence over public decision-making (what we call influence).