In seeking to start the process of exploring the interface between land tenure rights and water rights, an attempt has been made in this scoping paper to provide answers to three basic questions:
· What are land tenure rights and water rights?
· How do the respective regimes compare?
· What linkages, if any, are there between land tenure rights and water rights and, if there are none, does this matter, either in general or as regards specific aspects of the interface?
A further objective of this paper is to identify the areas in which further research is needed. Such research may in turn enable the better provision of support to countries as systems of land tenure and water rights evolve or transition in order to avoid inequitable outcomes such as the marginalisation of specific users, communities or productive sectors.
As described in Part Two, land tenure rights and water rights are both types of legal rights and as such they are capable of being asserted in court against third parties including the state. They share the same basic purposes in that they permit society to make an orderly allocation of valuable resources while at the same time conferring sufficient security on rights holders to encourage investment. And, largely for historical reasons, both types of right are heavily influenced by European concepts of land and water.
As to their subject matter, land tenure rights regulate the legal relationship between people and land. Largely as a result of the European influence a key focus of many jurisdictions is the right of private land ownership. In other jurisdictions land is held in state ownership and individuals may hold use or lease rights. Beyond such rights, land tenure regimes are concerned with a range of rights over land including rights of mortgage, servitude as well as the rights of other occupiers or users of land.
While water rights, which must be distinguished from the putative human right to water, can also be characterized as property rights since they confer on their holders the right to abstract or impound and use water in a natural source such as a river, stream, lake or aquifer, such rights are administrative rights. In contrast to land tenure regimes, under which the resource itself may privately owned, water in natural sources typically remains under state ownership or control.
A comparison between the two regimes, contained in Part Three, showed few similarities. While the provision of security is an objective of both, in contrast to land ownership rights (which are generally of unlimited duration), water rights are increasingly time limited and in any event the fluctuating (and fugitive) nature of water resources creates a fundamental physical limit to security. As regards their substance, while the conditions that apply to water rights are individually tailored to time and place (so as to take account of other rights holders and the environment), land tenure rights, and in particularly land ownership rights, are of a more generic nature. Ownership rights are subject to the fewest conditions and the conditions to which lease and land use rights may be subject are generally determined by the individual concerns of the land owner rather than any greater public good. Apart from the fact that both types of regime commonly make use of registers to record rights there are few similarities as regards registration. This is largely as a result of the planning and other administrative procedures by which water rights are allocated. In contrast to land tenure rights, water rights are only formally tradable in very few jurisdictions (and under highly regulated circumstances). Instead, the economic value of water as a resource is increasingly recognized through the use of charging mechanisms that derive from the rights themselves. This contrasts to the situation regarding land tenure rights which, with the exception of lease rights, do not depend for their continued existence on the payment of money. While international law plays a role in the administration of domestic water rights regimes concerning transboundary water resources, it plays only a very minor role as regards land tenure rights. Finally the objectives of reforms in the two sectors are quite different: while a mix of allocation efficiency/equity concerns and environmental considerations condition water rights reform, land tenure reform tends to be much more focused on socio-economic matters.
The linkages that formerly existed between the two regimes, described in Part Four, whereby water rights were essentially a subsidiary component of land tenure rights, have now largely been lost with the introduction of administrative water rights regimes. Notwithstanding a growing recognition of the importance of the relationship between land and water resources (and the need to take an integrated approach to their management and use) there are few, if any, formal links between land tenure regimes and water rights regimes. As a result, modern water law has become a distinct discipline of its own. The question asked in Part Five was whether this matters. As regards the objective of integrated management it was concluded that, as a result of the largely abstract manner in which the law conceives land tenure rights, it would not appear to matter. Instead, an understanding of the relationship between water rights regimes (and their inherent planning processes) and land use planning and permitting regimes is necessary to move toward integrated land and water management. This does not mean that land tenure rights are entirely irrelevant to the objective of promoting integrated management of land and water resources. The existence (or otherwise) of land tenure rights can have a major impact on decisions as to how land is used and further investigation into their role is warranted both in respect of projects that seek to improve land use practices within watersheds and into their potential use as a means of securing a more integrated approach, through, for example, the use of conservation servitudes.
Beyond the objective of securing a more integrated approach to the management of the two resources, on a practical level increasing pressure on water resources will have the effect of increasing the importance of water rights regimes insofar as the use of land is concerned and thus the value of land tenure rights. In jurisdictions in which modern water rights regimes function satisfactorily, particularly in developed economies, this process can be expected to take place naturally - certainly in countries where sufficient checks and balances are in place and where the application to own land or acquire a water use right is not restricted and where subsequent ownership is protected. In developing countries and economies in transition where modern water legislation either does not exist or where it is not implemented, a lack of security as regards water rights will inevitably impact negatively on the worth and security of land tenure rights and the livelihoods of those attempting productive engagement with land and water.
How then, can we expect the shape and style of the interface between land tenure and water rights to evolve in the developing world where the engagement with land and water is fundamental - in terms of health, food security and productive livelihoods? Two broad areas can be identified. First, where customary law has prevailed, the need to clarify the status of existing arrangements and guarantee their stability and transparency will be crucial to ensure that specific users and user groups are not marginalised (see section 7.1 below). Second, where there is a move away from a centrally planned economy, the need will be for progressive (more permissive) re-regulation of water use rights in support of decentralised irrigated land management (see section 7.2 below). In both cases, it could be argued that these systems will tend to converge on the developed country model in which there is ultimate separation of land tenure rights and water rights. Under such a model, the separation is assumed to free up the economic potential of land and water under an essentially permissive regime, but in fact planning controls and regulatory checks and balances ensure that the public interest is maintained and the rights of the individual user are protected. In addition, it is possible to identify a third area (see section 7.3) in which land and water will continue to be so tightly bound - the exploitation of groundwater - that separation of land tenure and water rights will be resisted. The groundwater dependant economies of the Middle East are a case in point.
In practice in many parts of the world customary or local law rules regulate the rights of individuals and communities to land and water. A question faced by formal land tenure rights regimes and water rights regimes is what, if anything, should be their relationship to such rules and if so, what form it should take. Particular difficulties are caused by the form and substance of rights created under customary law in comparison to those provided for in European-influenced formal rights regimes. A literature review suggests that far more research into customary land tenure rights has been undertaken than into customary water rights and that the failure of water legislation to positively support the interests of pastoralists may be a result of de minimis entitlements commonly found in legislation. However, with regard to the non-pastoral rural dweller, attempts are underway in a number of jurisdictions to recognize customary land tenure rights.
One key question that is commonly faced is how to address the issue of rights held by communities or groups and the degree to which this collective asset can be recognized as collateral in applying for term finance to fund small-scale water control infrastructure, for instance. Experience from the water sector in connection with the holding of water rights by water user associations, which has a long legislative tradition, indicates some of the possibilities. But this does not work both ways. The effects of conferring formal recognition of land tenure rights on customary water rights appears not to have been addressed. This highlights an avenue of applied research into customary water rights in which the precise impact of land title registration needs to be looked at from the perspective of both pastoralists and non-pastoralists and the extent to which de minimis entitlements positively support the interests of pastoralists.
While the importance of land and water to the survival strategies of the poor is clear, the relative importance of water rights as compared with land tenure rights is less well understood. Much of the literature focuses on the human right to water rather than on water rights sensu stricto. This may be because of the nature of water rights and in particular the provisions in legislation that exempt the users of smaller quantities of water from the need to hold a formal water right. Further research into the relationship between the poor and the issue of water rights is called for and in this connection a livelihoods approach may assist in identifying the key issues. Furthermore, while many land reform programmes have poverty alleviation as one of their objectives this is seldom the case for water rights reforms even though the benefits of land reform programmes may be lost if land rights are not accompanied by water rights. Nevertheless, even in cases where sector reforms are relatively contemporaneous, collaboration between reform processes is seldom found. Research into ongoing land tenure and water reform processes, particularly those underway in Southern Africa, is called for to explore how such linkages could be strengthened. It is also relevant to ask how attempts at such legal reform avoid marginalising the sectors of the populations most at risk. Guaranteed access to land and water may, in sheer practical terms, be of much higher importance to women than men in certain cultural settings and the conferring the rights in access/use to male members of a family who are never there (or who are working elsewhere) to use the right can be of limited value.
Under these circumstances it is sensible to ask how the reform of existing customary regimes can be shaped to ensure more stability and transparency to protect, equitably, the interests of low intensity users while also freeing up the value of such protected customary rights for transfer to higher value uses. This would imply a shift toward a clear separation of land tenure and water use rights, but along a path that is well informed by relevant research and tests to ensure that vulnerable sectors of society are not marginalised and customary systems of agricultural production are not compromised where they continue to provide local food security and rural livelihoods.
When we move beyond the generally low intensity customary use of water in rural settings for and scale up to land tenure and water rights within formal irrigation schemes, the impulse to de-link land tenure and water rights becomes more apparent, particularly with the demise of central planning and command and control type water administration. As many medium and large scale irrigation schemes struggle to justify themselves in economic terms, the adoption of downstream controls to supply water to land on-demand (rather than receiving water at the discretion of the water service provider) is forcing a separation of the two regimes. Water is supplied not on the basis of the landholding, but simply to the demand of the individual farmer. However, notwithstanding its huge contribution to global food security and the sheer size of investments made in the irrigation sector over the last hundred years, many irrigators lack secure rights to water, land or both. In the case of water this is largely a result of the manner in which the law conceives of water rights, namely rights to abstract water from a natural source. In the context of an irrigation scheme what is needed goes beyond a mere volume of water but a right to have a volume of water delivered at a given time by the irrigation scheme operator. The importance of rights in this context is increased by ongoing Irrigation Management Transfer programmes whereby responsibility for the operation and maintenance of irrigation schemes is transferred to irrigator run water user associations. In schemes where the water user association has access to a natural water source and can hold a water right, the transfer does not pose any practical or conceptual problems. The issue of water rights for irrigators in circumstances where water continues to be supplied by the scheme operator has thus far been largely neglected. How secure rights to water should be created and conferred on water user associations and/or individual irrigators is an area in which research is urgently required as without sufficient water security is doubtful that IMT programmes can be successful over the long term. The relevance of this issue to land tenure rights is clear: without irrigation water, land situated within irrigation schemes is often of little economic value
The insecurity of irrigators is further complicated by the fact that in many countries those who irrigate land within state funded irrigation schemes frequently enjoy insecure land tenure, often a result of deliberate policies to try and control how land is used in order to try and maximise production (and thus the return on the state's investment). Not only is a lack of land tenure security undesirable at the level of individual irrigators, in that it will discourage individual investment, it is also likely to harm the success of IMT programmes which are also a form of investment. Further research into the impacts of land tenure regimes on IMT programmes is called for together with an assessment of how an appropriate balance can be struck between the interests of the state (which may continue to finance the conveyance infrastructure supplying/draining the irrigation schemes) and individual irrigators. Another aspect of the rights interface relates to the irrigation infrastructure that is transferred to water user associations - an issue of land tenure. The form of such transfers and the rights and obligations to which they are subject can have major implications on the relative degree of security conferred on water user associations and thus the choices they make. Research into the land tenure aspects of IMT programmes is urgently called for.
A key feature of such large scale irrigation structures, as compared to small-scale low intensity customary use, is the degree to which the water can be traded within the scheme (between farmers) and without (between other economic sectors). Intra-sectoral trades may be highly informal or regulated, depending upon the number of users within the scheme or irrigation supply project and the degree of transparency that applies. However, transfers to other sectors beyond the individual scheme are normally the subject of regulation - the rare exception being Chile - and the existence of conveyance infrastructure to effect the physical transfer from irrigation scheme to urban utility, for instance. But to work effectively, both intra and inter-sectoral trades require land and water rights to be de-coupled and hence transferable. The widespread introduction of a degree of tradability as regards water rights is inevitable, not because it will lead to the creation of vibrant water markets as such, but more prosaically because it will provide a relatively less painful means of allocating water from lower value to higher value uses. Not only will this have significant impacts on existing water rights regimes, it will also have major impacts on land tenure rights and land tenure rights regimes particularly as far as valuation of such rights is concerned, the rights of mortgagees and other holders of security, the resource and revenue base of local communities and thus indirectly on land tenure rights. It may also be possible to use fully tradable water rights as a source of collateral to raise credit in which case there could be significant impacts on the manner in which water rights are recorded and registered. Further research is needed into the potential impact of tradable water rights on land tenure rights and land tenure rights regimes as well as on water rights regimes.
The management and use of groundwater raises a number of key questions about the land tenure rights/water rights interface. An increasingly important resource, groundwater is relatively vulnerable to both over-abstraction and pollution and as a result is at increasing risk in many parts of the world. Historically regulated as a specific aspect of land law, attempts to bring groundwater within the administrative water rights regimes provided for in modern water legislation have not always been successful, not only in developing countries. The perception of groundwater as a private resource or, at the opposite end of the spectrum, as an open-access resource, irrespective of the legal regime under which it is exploited, appears to be so intense that an effective de-coupling of land and water seems impossible to obtain, even if an economic rationale applies. There would therefore appear to be limited options for advancing reform and land tenure, particularly in arid and semi-arid countries where access to groundwater is the only means with which to bring land under production.
The land tenure/water rights interface operates on two main levels. At a functional level groundwater resources are vital to the use of land in many parts of the world and thus to the value and utility of the tenure rights that relate to that land. Continued unsustainable use leading to the overdraft of aquifers will thus have negative impacts on land tenure rights. At a conceptual level the direct relationship between land that is subject to tenure rights and the groundwater beneath it suggests it may be worth examining whether existing difficulties in trying to regulate groundwater with a similar basic regulatory approach as that used for surface water might not be better resolved, in part or in whole by taking greater account of the interest of holders of land tenure rights. Further research is necessary into the use of land tenure-based approaches to the management of groundwater such as experience with groundwater districts, a form of water user association and other land and community-based approaches to groundwater management.
In conclusion, the interface between land tenure and water rights takes on a number of guises, fuzzy with respect to customary law, overly rigid in the case of large scale irrigation development and tightly bound in the case of groundwater. These clusters may be just one way of looking at the interface. No doubt other clusters can be teased out from the literature. However, from the perspective of FAO, which is generally seeking to assist developing countries effect equitable and productive transitions in rural development and food security, they offer a first-pass typology which can be expanded or even revised.
The key question that remains is that with the gradual conversion of water rights into the public domain, does the adoption of an essentially European model of separated land tenure and water rights regimes becomes the ultimate solution toward which the various interface clusters converge? While the resistance from the groundwater dependant economies can be expected to remain, the trend toward separation is apparent from customary and centrally planned regimes. Whether this is a good thing or a bad thing is not at issue. What is of concern is that countries attempting land and water reforms are well informed and are helped along a path that avoids the pitfalls of socio-economic and environmental marginalisation. This initial research has attempted to bring several, otherwise, disparate threads of research together to examine an interface that is, by turn, vague, transient, jagged and rigid; and then argues for more clarity, stability and flexibility. It is not asking for the moon.