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2 What are land tenure rights and water rights?

First of all, land tenure rights and water rights are legal rights. As such they are capable of being asserted against the state and third parties in a court of law. In the case of a dispute, a right holder can legitimately expect a valid right to be upheld by a court and as necessary enforced through the machinery and coercive power of the state.[20] Loss of, or damage to, a land right or a water right is prima facie subject to the payment of compensation and the right to such compensation is enforceable in the courts.

Second, land tenure rights and water rights have the same basic purposes. From the perspective of society they permit the orderly allocation of valuable resources. From the perspective of the right holder, they confer the necessary security to invest in the resource or activities entailing its use. When rights are secure and tradable the holder may also be able to use them as collateral through a mortgage to raise credit.

Third, while most societies since ancient times have had their own rules concerning rights to use land and water, modern conceptions of formal land tenure rights and water rights are both overwhelmingly influenced by European conceptions of land and water as reflected through the two European legal traditions: the civil law tradition and the common law tradition.

The civil law tradition, sometimes described as the Romano-Germanic family, applies to most European countries (including the formerly socialist countries of Central and Eastern Europe), nearly all countries of Latin America, large parts of Africa, Indonesia and Japan, as well to the countries of the former Soviet Union.[21] The common law tradition emerged from the law of England. Examples of jurisdictions where the common law tradition applies include the United States, Canada, Australia, Singapore, New Zealand, India, Pakistan and the remaining African countries that are not in the civil law tradition as well as other Commonwealth countries and a number of countries in the Middle East.[22] The colonial period explains why European land and water law was ‘received’ into the legal systems of so many countries, but it is not the only reason.[23] A number of countries that were never occupied by the colonial powers looked to European and subsequently to North American law in revising or modernising their own legislation.[24]

Having considered the status, purpose and background just what are land tenure rights and water rights?

2.1 Land tenure rights

As regards the substance of land tenure rights, a definition of ‘land tenure’ proposed by FAO seems a logical place to start.[25] It is:

the relationship, whether legally or customarily defined between people, as individuals or groups, with respect to land.

The definition first suggests that land tenure rights are ‘legal rights’ that define the relationship between people, whether as individuals or groups and land. However it then goes beyond formal legal rights to include customary rights. Thus an examination of land tenure ‘rights’ that addresses only formal rights will risk omitting coverage of a large aspect of the concept of land tenure. However, rather than considering the nature of customary rights per se this paper will examine their relationship with formal land tenure rights and formal land rights administration regimes.

Another definition notes that the expression ‘land tenure’ is originally a legal term that means the right to hold land rather than the simple fact of holding it.[26] The word ‘tenure’ derives from the Latin term for ‘holding’ or possession and its use in this context derives from the English feudal period when, following their conquest of England in 1066 the Normans declared all previous land rights void and replaced them with grants from the new King.[27] As such the concept applied to the terms on which land was held, in particular the rights and duties of the holder.

In practice, a combination of private land ownership and extensive individual rights has been a cornerstone of European, North American and Australian concepts of land tenure for the last two hundred years.[28] As a result, the main focus of the European legal traditions has been on private property rights.[29] While all legal systems envisage that some land may be owned by the state, or its equivalent,[30] and many have special legal rules for such holdings,[31] the primary focus of the European traditions has been individual private land ownership.

Both of the main European legal traditions distinguish between property rights relating to land and those that relate to other goods. ‘Immovable’ property rights in the civil law tradition and ‘real’ property rights (or ‘realty’) in the common law tradition that relate to land are distinguished from ‘movable’ or ‘personal’ property, sometimes described as ‘chattels’.[32] As will be seen below, many ongoing reforms currently seek to promote the concept of private property rights, specifically rights of land ownership. But while important, ownership is not the only type of important land tenure right.

The other principal type of land holding envisaged under the European legal traditions is leasehold tenure whereby land is rented by a ‘tenant’, someone other than the owner, for a specified period, usually in return for the payment of ‘rent’. The owner may be a private land owner or the state and the rent payable can be either in money or in kind. While leases created in respect of certain types of land or premises may be subject to specific statutory provisions that restrict, for example, the level of rent that can be charged, the circumstances under which the lease can be determined or even extended,[33] the parties to a leases are otherwise free to agree on the level of rent payable[34] and indeed the term of the lease, which may last from a few weeks to a thousand years. Such an agreement, the ‘lease’ or ‘lease agreement’, will usually specify the use or uses to which the land will be put and will also specify the mutual obligations of the parties.[35] Of course the parties to a lease must also comply with any prescribed legal formalities concerning the form or content of a lease.[36]

Not all jurisdictions, however, permit the private ownership of land. For doctrinal reasons both socialist and nationalist states have often rejected the notion of private land ownership. For example, on achieving independence many African nations vested their land resources in the state or in the president. Land was ‘nationalised’ in this way to assert the power of the state over traditional chiefs and to allow the appropriation of land for development in the belief that the state would be best placed to manage and distribute land in the interests of all.[37] Under this kind of approach, individuals may typically be granted long term use rights, which usually do not attract the payment of rent, or long term leases which do. The legacy of this approach is still found in a number of African countries, such as Tanzania and Mozambique, where all land remains in state ownership, with individuals holding use rights.

While land reforms in many of the former socialist states of Eastern Europe and Central Asia have seen the introduction of freely tradable private land ownership rights, some states have taken a more cautious approach. Particularly as regards agricultural land, in some countries individuals are permitted only to hold use rights and, generally as a result of fears over land speculation and hoarding, there are restrictions on the sale or transfer of land in others even where ownership rights exist.

Even in countries that permit private land ownership, large areas of land may remain in state ownership. In some countries this is largely unproductive land; elsewhere it is, for example, forest land. Depending on the applicable legislation individuals may, or may not, be able to acquire legal rights to use such land.[38] The amount of land under state ownership varies considerably from country to country.[39]

Land tenure is, however, concerned with far more than ownership, lease and use rights. The unique and immovable nature of land means that it is frequently subject to numerous simultaneous uses, claims and legal rights. Take, for example, a single parcel of privately owned land. Part of this land may be subject to a lease. The remainder of the land may be subject to a legal charge or mortgage, whereby money is lent against the security provided by the land. An owner of an adjacent parcel of land may hold a right of way over part of the land parcel (an ‘easement’ or ‘servitude’[40]) or rights to use part of that parcel for a specific purpose, such as a right to graze livestock or to gather timber (a use right or right of usufruct). At the same the land parcel may benefit from a similar right over an adjacent parcel.[41] Unknown to the owner, a third person - a ‘squatter’ - may be in illegal and unauthorised occupation of a far corner of the land parcel. If nothing is done to remove him, after a certain period of time the squatter may eventually acquire legal rights over the land parcel, or part of it.[42] Further questions may arise as to the relationship between the formal owner of the land parcel, often a male, and other family members. What interests, if any, do women and other members of the owner’s family hold in the land?

These kinds of relationships are all the subject of land tenure legislation, regulated either in the relevant code[43], in the civil law tradition, or in the other laws and on the basis of court decisions in the countries that follow the common law tradition. One way or another, such rules and principles have generally followed the spread of European concepts of land tenure.

2.2 Water rights

Modern water rights, by contrast, are not subject to multiple subordinate rights, even though the water that is the subject such rights is quite likely to be subject to multiple uses. But what are water rights?

The first point to emphasise is that water rights, as the term is commonly understood, have nothing to do with the so-called ‘right to water’, a putative human right which is claimed to exist either as a right in itself or as an ancillary aspect of the ‘right to food’ created by article 11 of the International Covenant on Economic, Social and Cultural Rights.[44] Nor should water rights be confused with provisions contained in progressive constitutions such as the ‘right of access to water’ found in that of South Africa.[45]

Instead water rights are concerned with the removal (and subsequent use) of water from the natural environment or its use in that environment. In essence a water right is a legal right:

But water rights frequently go beyond an entitlement to a mere quantity of the simple chemical compound which is water: the flow of the water is also an important component of a water right.

A ‘natural source’ includes a stream, river or lake, a reservoir created by the damming of a river, a swamp or pond as well as groundwater from a natural spring or a well. Historically, much of the focus of water law, and thus conceptions of water rights, has been based on rights to abstract and use water from streams and rivers, more specifically from the abundant and perennial streams rivers of Europe.[46] This, as will be seen, has had, and indeed continues to have, implications for the export of European notions of water rights to countries with vastly different climatic and hydrological conditions.[47] Furthermore, while groundwater is now commonly included in water rights regimes its particular features are such that it is considered separately below.

The main uses to which water abstracted on the basis of a water right is put are agriculture (for irrigation and livestock watering), industrial uses including its use as a coolant in thermal power stations, and for urban use including for domestic drinking water, household and commercial uses. Rights to impound water are either a precursor to abstraction (for example where water is held in a reservoir prior to its use for irrigation) or relate to the use of water for hydro-power generation.

As to their legal form, while in some jurisdictions (such as the western states of the United States of America in which the ‘prior appropriation’ doctrine applies[48]) water rights are still created by operation of law, water rights are mostly now created on the basis of a legal instrument issued by the state agency responsible for water resources management (the ‘water administration’). Such instruments are variously described in legislation as ‘licences’, ‘permissions’, ‘authorisations’, ‘consents’ and ‘concessions’.[49]

As to their substance, modern water rights are administrative use or usufructory rights. The question arises are they property rights? Arguably they are.[50] The fact that they gain their existence from an administrative or regulatory procedure does not by itself preclude them from being property rights. After all, intellectual property rights in the form of trademarks and patents are usually acquired through an administrative procedure. A full discussion of this matter is beyond the scope of this paper. The key point to note is that although water rights are now generally created under public or administrative law on the basis of statutory provisions, they have, as will be seen, many but not all of the attributes of private property rights, such as land tenure rights. Indeed without such attributes, a water rights system simply would not be able to function effectively. Before looking at these features, in comparison with land tenure rights, several observations must first be made about water rights.

First of all, statute-based modern water rights are based on the concept of the hydrologic cycle, the notion that water in its natural state is in constant motion (see Box A). The effect is that water rights, in the sense described above, cannot be issued or regulated in isolation to other activities relating to watercourses.

Box A - The hydrologic cycle and the fugitive nature of water

With the exception of so-called ‘fossil’ groundwater, described below, water is in a complex interlinked cycle of continuous movement. To start at the top of the cycle, as it were, water falls over both the sea and land as rain, hail or snow. Water evaporates from any wet surface including the sea which covers about 70% of the planet. As regards the water that falls over land, snow melt and rainwater runs off the surface into streams and rivers and thence down to the sea or some other ‘terminus’ such as an inland lake.[51]

Throughout this process some water enters into the soil where it is held as capillary water and returns directly to the atmosphere by way either of evaporation from the soil or through absorption by plants and then by transpiration.[52] Finally some water percolates down into the geological strata that are aquifers. This is mostly by rainfall excess to plant requirements. Some of this water flows slowly to springs from where it rejoins the flow of surface water, or directly back to the sea. In this connection it should be noted that most ground water sources are linked with surface water bodies above them. Some however are not. Parts of so called ‘confined’ aquifers pass beneath surface water bodies with which there is no direct physical link. Groundwater will be replenished provided the abstraction rate is not too fast.

While water may be temporarily removed from the cycle by human intervention - for the bottling of mineral water - sooner or later it is used and will flow as waste water back into a river, stream or sea.

The only real exception is so-called fossil ground water which is ancient water contained in aquifers that have no connection with surface waters. In its natural state such water is not in motion and as such is more similar to oil reserves: once extracted it will not be replaced. In some places particularly in arid regions a proportion of water contained in deeper aquifers can be thousands of years old, representing palaeo-recharge that occurred during past eras of wetter climates.

Thus a range of other activities that may have a negative impact on the quality and flow of water, and thus on existing water rights, are generally regulated either by the same water rights system, or in close co-ordination with it. These include:

The use of water, or the undertaking of any of these activities, without a formal right in circumstances where this is required, invariably constitutes an offence that may be punished in accordance with criminal or administrative law (depending on the jurisdiction). Activities that do not involve the abstraction of water from a water course, such as navigation or the impoundment of water for hydro-power generation and, in general, all in-stream uses of water resources (recreation, conservation of riverine and lacustrine wildlife habitats, fishing) are frequently described as ‘non consumptive uses’, in contrast to ‘consumptive’ uses where water is abstracted and used off-stream, with limited or no return flows returned to the water course of origin. What is clear, though, is that a river may be simultaneously subject to numerous water and related rights much in the same way that an individual parcel is, even if the rights themselves are not formally affected.

In order to be able to establish this type of administrative rights regime, it is first necessary to bring a state’s water resources within the control of the state. This is done through a variety of different legal techniques varying from a declaration of state ownership,[53] the inclusion of water within the public domain of the State,[54] vesting water resources in the President of the State on behalf of its people,[55] or bringing water resources under the superior use right of the state.[56] Usually, such state ownership or control applies to all of the water resources within a state’s territory thus including both surface water, groundwater[57] and even rainwater. In contrast to land tenure rights, notions of genuinely private ownership rights over water have therefore now largely gone from most jurisdictions.

Nevertheless it should be noted that water legislation typically provides a range of exemptions for activities that would otherwise require a water right. Indeed sometimes such entitlements are described in legislation in terms of ‘rights’.[58] Typically, this is either done by reference to the type of activity, the volume of water used or a combination of both.[59] For example, in Spain such uses are classified as ‘common uses’ and include the use for drinking, bathing, and other domestic purposes as well as livestock watering. In Canada (Saskatchewan Province) the exemption derives from the size of the parcel to be watered, while regarding current water law reforms in England and Wales an exemption for abstractions of up to 20 cubic metres per day is proposed.[60] There is no great theoretical justification for exempting such uses from formal water rights regimes. Instead, a value judgement is made by the legislature that takes account of the increased administrative and financial burden of including such uses within the formal framework, their relative value to individual users and their overall impact on the water resources balance.

This kind of de minimis exemption has no really direct equivalent in the context of land tenure regimes. The closest equivalent is probably a temporary licence or permission to cross or travel over state owned land, such as a highway or other public place.[61] In any event such de minimis water rights are a curious type of residuary ‘right’. While they may be economically important to those who rely on them, it is hard to see how they provide much in the way of security. This issue is considered in more detail below.

[20] Including the use of state sanctioned force such as court bailiffs and ultimately fines and even imprisonment for failure to comply with court orders.
[21] Some commentators have argued that the influence of technical assistance from experts from the common law tradition (primarily the United States) has led to the creation of a new hybrid tradition within the former socialist countries. Nevertheless, the form of post-socialist law is certainly that of the civil law tradition.
[22] Some jurisdictions, such as Cameroon and South Africa, are influenced by both the civil law and common law traditions.
[23] Land and water laws were not the only areas of European law that shape modern legal systems.
[24] For example Japan’s 1896 Civil Code was heavily influenced by the German Civil Code.
[25] Food and Agriculture Organization of the United Nations Land tenure and rural development FAO Land Tenure Studies No. 3 (2002) FAO Rome at page 7.
[26] Bruce, J.W. Review of tenure terminology (1998) Tenure Brief No. 1, Land Tenure Cente, University of Wisconsin, Madison, p 1. One legacy of the Norman era is that strictly speaking all land in England and Wales is owned by the Queen, the best title that an individual can hold being the estate of the ‘fee simple absolute’. To all practical extents and purposes this is equivalent to ownership.
[27] A pattern that their English descendants would in turn repeat in later centuries.
[28] Hanstad, T ‘Land Ownership’ in Prosterman, R. & Hanstad, T. Legal Impediments to Effective Rural Land Relations in Eastern Europe and Central Asia The World Bank, Washington D.C., 1999, at page 16.
[29] As with the word ‘tenure’ some care is needed with the word ‘property’. While it is frequently used to describe a thing that it is owned - as in the expression ‘that is my property’ - from a semantic perspective property is not the actual thing that is owned but the subject of a relationship of ownership: property is the condition of being ‘proper’ to or belonging to a person or persons.
[30] For example the Crown or the Federal Government.
[31] For example a number of jurisdictions in the civil law tradition include land assets among the ‘domain’ or ‘patrimony’ of the state.
[32] In the common law a land parcel includes any buildings or structures attached to that land and they are thus included in the category or ‘real property’. Buildings and structures are similarly classed as immovable property in the civil tradition, although in some jurisdictions a building may be owned separately to the parcel of land around and below it.
[33] Examples include tenancies concluded in respect of agricultural land, business premises and certain types of housing. The objectives of such restrictions vary. As in the case of the first two categories they are often to promote business continuity at least in the case of richer countries. As regards housing, the objectives are usually social in that the restrictions seek to protect poorer tenants against richer land lords. On the other hand, such type of social protection may also be found in respect of land leased for agricultural purposes, for example in the case of ‘share-cropping’ whereby the rent is paid in kind out of the production from the land.
[34] Some rental payments are for a nominal amount, a so-called ‘pepper corn’ rent.
[35] These might include an obligation on the part of the tenant to undertake periodic repairs to a building for example. Under the common law, the most important covenant on the part of the land lord is the ‘covenant for quiet enjoyment’ whereby the tenant is, provided he pays the rent and complies with his obligations, entitled to enjoy the holding throughout the term of the tenancy without interference from the landlord.
[36] An example from the common law will suffice. A lease must be for a specified determinable period of time, even if this period is indefinitely renewable. Thus a lease ‘for the duration of the [second world] war’ was held to be void for uncertainty. LACE v CHANTLER [1944] KB 368.
[37] Quan, J, ‘Land Tenure, Economic Growth in Sub-Saharan Africa’ in Toulmin, C. & Quan, J. (eds) Evolving land rights, policy and tenure in Africa DFID/IIED/NRI London 2000, at page 33.
[38] Forest legislation may in particular restrict or prohibit the acquisition of land tenure rights within forest areas.
[39] In the United States, for example, although most land in most states is privately owned, in the Western states the Federal Government owns approximately half of all land, with individual states themselves owning a smaller but not insignificant share. The Federal Government owns more than half the land of the states of Alaska, Idaho, Nevada, Oregon and Utah). Huffman, J.L. ‘Land Ownership and Environmental Regulation’ 25 Ecology Law Quarterly 591 (1999) pages 593 and 597.
[40] These terms are largely synonymous: the former being used in the common law tradition and the latter in the civil law tradition.
[41] Strictly speaking, of course, it is the land owner who enjoys such a right. Such a right is not personal to him but incidental to his ownership. In the language of the civil law tradition, the parcel of land that is subject to such a ‘servitude’ is said to be ‘burdened’ by it, to the ‘benefit’ of the other parcel. The common law talks in terms of ‘dominant tenements’, which benefit from easements that negatively affect the ‘servient tenement’.
[42] Indeed a further layer of complexity may be found in common law jurisdictions by reason of the concept of the trust, whereby the legal owner of an asset, such as land or a land right, may hold that resource in trust for the benefit of another person. The interest of the latter, an ‘equitable interest’ may have important implications on how a formal land tenure right is exercised.
[43] In the French Civil Code, for example, life interests (usufruit) are addressed in articles 578-624, the occupation of land (usage et habitation) in articles 625-636, easements (servitudes) in articles 637-710, pledges (nantissement or antichrèse) in articles 2071-2091 and acquisitive prescription or squatters rights (la prèscription) in articles 2219-2283.
[44] Article 11 of the International Covenant on Economic, Social and Cultural Rights, provides that everyone has a right to an adequate standard of living for himself and his family including adequate food, clothing and housing. The ‘Right to water’ was developed in General Comment 15 on the Covenant by the Committee on Economic, Social and Cultural Rights. Such ‘General Comments’ constitute authoritative interpretations of the provisions of the Covenant to clarify the normative contents of rights, States parties’ and other actors’ obligations, violations and implementation of the rights at national level. Food and Agriculture Organization of the United Nations Agriculture, Food and Water FAO, Rome (2003), Annex One.
[45] Article 24.
[46] For practical reasons water in streams and rivers has tended to play a more important role than water in lakes and ponds as far as water rights are concerned as the gradient of flowing water makes it easier and cheaper to abstract. Water from a lake or pond must generally be pumped as the surrounding land will usually be above the level of the lake surface.
[47] For example, apart from the rivers that form part of its northern, southern and north eastern borders, Namibia has only temporary rivers which may only last a few hours or days following periods of intense rainfall.
[48] See discussion in Part Five below.
[49] From a general legal perspective such terms are synonymous. Having said that, in those cases where the word ‘concession’ is used in water legislation this generally relates to cases where a particularly long term of use is envisaged. The word ‘concession’ is in any event a somewhat slippery term with several different meanings some of which are also used in the water sector. For example a person may hold a ‘concession’, in the sense of an exclusive right, to operate a pop-corn stand in cinema. Similarly, following the so-called French model, a private water supply company may hold a concession, in the sense of an exclusive right, to operate an urban water supply network. In a sense a water right that is described as a concession confers an exclusive right on the holder to use a given volume of water at a given location, but then this can said of any water right.
[50] Joseph Sax, in the context of American water rights, is of no doubt that they are property rights even when created by permit. Sax, J.L. ‘The Constitution, Property Rights and the Future of Water Law’ 61 University of Colorado Law Review 257 (1990).
[51] Water evaporates from any surface.
[52] McCaffrey, S., op cit, at page 23.
[53] As in Albania’s Water Law of 1995.
[54] As in Argentina’s Civil Code of 1869.
[55] As in Ghana’s Water Resources Commission Act of 1996 and in Zimbabwe’s Water Act of 1998.
[56] As in Uganda’s 1995 Water Resources Act and Victoria’s Water Act of 1989.
[57] Although Spain’s recent water legislation omits fossil groundwater.
[58] Article 13 of the Albanian Water Law, for example, provides that ‘Everyone has the right to use surface water resources freely for drinking and other domestic necessities and for livestock watering without exceeding its use beyond individual and household needs...’.
[59] Nevertheless water legislation usually provides that such ‘free uses’ of water may also be subject to restriction in times of drought.
[60] In the draft Water Bill that is currently subject to consultation. Similarly, agricultural irrigation is exempt from permit requirements in Kentucky and Maryland (up to 10,000 gallons a day) Getches, D.H, Water Law in a Nutshell West Publishing, St. Paul, Minn (1997) at page 57.
[61] Such a right would not, however, be characterised as a land tenure right.

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