5 The rights interface

The picture that emerges is of two quite distinct regimes with quite separate approaches to the allocation and administration of rights over land and water resources. As outlined in the previous Part, this divergence, or more accurately the development of specific regimes for the allocation of water rights separate to land tenure rights, has taken place for perfectly rational reasons.

At the same time, however, as noted in the introduction, the resources to which the two rights regimes relate - land and water - are fundamentally inter-linked. The way in which land is used can, and often does, have a major impact on both the quality and the quantity of water resources^[132] and thus on water rights. Deforestation and poor agricultural practices on the slopes of upper watersheds are often blamed for an increased rate of run-off of surface water leading to cycles of flooding and low river flows, as well as increased sedimentation loads which can also affect such flows. In short nearly all uses of land have an impact on the hydrologic cycle of water and thus on water resources.

In recognition of the growing awareness of this inter-connection between the two resources Agenda 21, which was adopted at the United Nations Conference on the Environment and Development (UNCED) at Rio de Janeiro in 1992, stated that ‘Integrated water resources management, including the integration of land and water related aspects, should be carried out at the level of the catchment basin or sub-basin.’^[133] This call has since been echoed in an increasing number of legal and policy instruments at both national and international levels. The river basin approach to the management and development of transboundary water resources was recognised by the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses and is increasingly influential in international and regional agreements.^[134] As noted above, this approach is increasingly embraced in national water legislation and administration and the need to take an integrated approach to land and water linkages has been a frequent topic of published papers.^[135]

5.1 Formal and informal linkages

Given the importance of the relationship between land and water, what formal mechanisms exist in law to ensure a co-ordinated approach to the allocation and administration of land tenure rights and water rights? The answer, in short, is that few if any of such mechanisms exist. This is largely a result of the manner in which allocation decisions are made under the two regimes. In the land sector, as described above, the allocation and re-allocation of tenure rights has long been left to market forces in the so-called developed nations and current economic development orthodoxies see an increasing role for market transactions in developing and transition states. Also as outlined above, water rights have historically been seen as a subsidiary element of land tenure rights and as such have not merited specific consideration or a need to create specific linkages from a land tenure rights perspective.

The divergence and separation of water rights from land tenure rights through the creation of modern statutory water rights regimes has in many ways culminated in a reverse process in which land tenure rights are largely irrelevant. Modern water rights regimes are increasingly blind to the form and content of land tenure rights. It is increasingly rare for legislation to restrict the holding of water rights to land owners and frequently all that an applicant for a water right needs to show is that s/he or has access to the water source in question. Indeed modern water legislation increasingly provides for the grant of access to water resources to those who do not have direct access. The South African Water Act, for example, entitles a person who is authorised to use water to claim a ‘servitude of aqueduct’ over land belonging to another person for the purpose of abstracting or conveying water. Such a servitude may be acquired on the basis of an agreement or a court order and in accordance with ordinary land law principles a court may order the payment of compensation.^[136]

The divergence between land tenure rights and water rights is not, however, limited to the lack of formal linkages or mechanisms between the two regimes. The enactment of modern water legislation has led to the creation of water law as a distinct area of research and practice to land law.^[137]

As a result water rights are an aspect of water law and policy which is practised and studied by water lawyers and other water sector professionals, with their own concerns, text books and literature. In the same way land tenure rights remain an aspect of land law and policy a sector with its own agenda and a quite different set of professionals: land lawyers, of course, as well as surveyors and land economists in place of hydrologists, hydro-geologists and hydraulic engineers. The literature is equally distinct. As noted in the introduction, with few exceptions, the literature on land tenure rights tends to ignore literature and water rights and vice versa.

At a policy level, too, there is often an apparent disjuncture in respect of both governments and international agencies. For example the World Bank has recently published two major policy papers, one on land and land tenure,^[138] the other on water resources.^[139] Not only do they do not refer to each other, they do not even refer to the topic of the other.^[140]

The next question that arises is does this divergence between land tenure rights and water rights as regards the integrated management of land and water resources matter? Surprisingly, perhaps, the short answer is that to a large extent it does not. This in turn is largely a result of the nature of land tenure rights and in particular land ownership rights.

The essential point to note is that the law tends to conceive of land tenure rights in general, and land ownership rights in particular, in the abstract, with no regard to the location or natural features of the land parcel to which they relate. Freyfogle observes that the law conceives of the ‘hypothetical ‘Blackacre’ and the abstract bundle or rights that its owner possessed’.^[141] In other words the bundle of sticks that comprise the ownership rights over a parcel of land in the middle of a large city are identical to those of a parcel of land in the middle of the countryside. In thinking this way the law generally pays little attention to the land itself, as if the natural features of a land parcel have no impact on the owner’s land use options.^[142] The use of a particular parcel of leasehold may be subject to restrictions that take account of its natural features, but that is at the private discretion of the land owner. As regards state owned land, the state in theory at least has the potential role to influence the way the land is used. Huffman describes how by the late 1990s the management of federal lands in the United States had gradually shifted to focus on environmental preservation.^[143]

By way of contrast, water legislation typically requires each water right to be specifically adapted to time and place through the use of general conditions, that might apply nationally or within a given river basin, as well as of specific conditions unique to that water right. In this manner, the potential impact of that water right on other water uses as well as on land resources and other environmental goods can be taken into account. Some commentators detect a move towards an acknowledgement that land ownership rights should somehow depend on the natural features of the land parcel owned.^[144] But this will be a slow and evolutionary process.

Instead as regards the objective of promoting a more integrated approach to the allocation and management of land and water resources it is necessary to look beyond land tenure rights and examine the relationship between water rights regimes and the legislation that regulates land use planning and permitting.

5.2 Planning the uses of land and water

The relationship between water rights regimes and land use planning regimes raises a number of important questions. Key among these are the jurisdictional scope of the regimes and the question of priority.

While plans and important water resources management decisions are typically made at the basin level, land use planning and decision making take place at both regional and local levels, within administrative boundaries. Such boundaries often do not accord with the boundaries of river basins or sub-basins.^[145] And, in practice the distinction between water resources planning and land use planning breaks down. All uses of land have water resources implications and vice versa. Because water is a basic human need, any land development for agricultural, residential, industrial, commercial or recreational purposes involves a diversion of water of suitable quality. Changes in the water regime - for example the construction of an impoundment for water supply, flood control and recreational purposes - have profound implications for land use in areas within the impoundment’s zone of influence.^[146] Another issue is how to bring groundwater into the equation. Changes in land can have significant effects on infiltration rates through the soil surface, on the water retention capability of soils, on sub-surface transmissibility, and thus on the production effect of rainfall.^[147] Yet even if linked, the boundaries of aquifers frequently do not follow those of surface water basins, let alone those of the administrative sub-divisions of a state.

Another issue is which planning process should have priority, land or water? The European Community Water Framework Directive requires the preparation of ‘river basin management plans’ by the member states. Proposals to implement this duty in England and Wales require the relevant land use planning authorities merely to have regard to these plans. Scottish legislation, however, requires planning authorities to exercise designated functions ‘so as to secure compliance with the requirements of the Directive’ and thus the relevant river basin management plans. Furthermore, Scottish Ministers have made it clear that river basin management plans will over-ride land use plans.^[148] This, too, is an area that has benefited from relatively little in the way of research. A key problem is that in many countries land use planning regimes outside urban areas are weak, un-enforced or both.

An alternative, more ambitious, and in many ways more holistic approach is taken by New Zealand’s Natural Resource Management Act of 1991. The purpose of the act is to ‘promote the sustainable management of physical and natural resources’. It provides for the issue of resource consents on the basis of outcomes from a comprehensive multi-layered planning process. Such consents are necessary for the use of inter alia both water and land. But to what extent has this regime been effective and is it replicable elsewhere, particularly in developing countries? These are some of the issues that require further research.

5.3 The interface: the role and importance of land tenure rights

This does not, however, mean that land tenure rights should be disregarded entirely in seeking to improve integrated planning management of land and water resources. For a start tenure forms the basis from which land uses can be undertaken. Thus the rights of actors in land use planning will depend on their land tenure rights. Furthermore, the land/water interface is increasingly the subject of research and development projects that seek to recognise and build on land water linkages by making co-ordinated management interventions to both land and water resources. Such projects, commonly called ‘watershed management projects’ typically work with communities in both the upper catchments as well as those in the valley below to reduce erosion, prevent salinization and promote groundwater recharge.

What such projects generally do not do is to address issues of land tenure and water rights. This would in many ways appear to be serious omission as far as sustainability is concerned as often those who are the recipients of project assistance, for example people living on forest or marginal land in the upper catchments, have little or no security of tenure.^[149] In the absence of secure tenure is it realistic to expect people to modify their conduct regarding the use of land with no immediate benefit to them? Apart from that those in the valley below, who benefit as water users from the management interventions may themselves hold only precarious water rights. The key difficulty, though, is just how to confer security, through the grant of land tenure rights and water rights, on such persons in order to meet such relatively narrow environmental objectives. The problem of conferring security is compounded by the fact that land reform programmes are often not designed to resolve the kind of environmental issues that such land/water linkages raise. In this connection further research into land tenure issues in connection with improved watershed management is called for.

For a start land tenure mechanisms, such as environmental easements or servitudes, whereby restrictions are placed on the use of land in the upper watershed for the benefit of land or buildings or even cities downstream, could conceivably play an important role in creating upstream-downstream linkages within river basins. Further investigation into the acquisition by New York City of such easements over land in the Catskill Mountains may reveal useful mechanisms that could be replicated elsewhere.^[150]

Wetlands, which are at the physical interface of land and water, play a vital role in maintaining water quality and water flows. In many countries, wetlands and their resources are classified as state property and water legislation often fail to provide security of tenure and access for local or indigenous peoples, even in areas where traditional land management has shaped and conserved high levels of biodiversity.^[151] As such this issue represents another aspect of the relationship between land tenure rights and water rights. In practice the banks and shores of rivers and lakes are home to a wide range of social and economic activities as well as a range of valuable eco-systems. Too often the bank or shore acts as the boundary between land tenure rights regimes and water rights regimes making it difficult to determine just which set of legal rules apply particularly in the context of flood plains.^[152] As described above, the construction (and use) of structures on land adjacent to water courses is usually subject to regulation under an applicable water rights regime even though such land may be subject to formal or customary land tenure rights. All around the world constructions and activities take place on the banks and shores of rivers and other water courses with little regard to either land tenure rights or water rights regimes. Further research into this aspect of the physical land/water interface is called for.

Beyond the objective of promoting integrated use and management of land and water resources, on a practical level the linkages between land tenure rights regimes and water rights regimes will probably only become stronger. Continuing pressure on water resources means that the importance of water rights is likely to increase not only in the abstract but also by reference to the tenure rights that relate to the land on which water will be used, whether for industrial, urban or agricultural purposes. Apart from the impacts of climate change, noted above, it is estimated that some 14 percent more water will be necessary for food production to meet the needs of the growing world population.^[153] At the same time, however, population growth coupled with migration from rural areas is likely to increase the water demands of the major urban centres, the citizens of which will in turn need to be fed.

In other words water rights are going to become increasingly important both in general and in connection with the use of land and thus the exercise of land tenure rights. This is not to suggest that they will eclipse land tenure rights in importance or in number but increasingly the key to realising the value of land will depend on the existence and availability of water rights. In other words, the availability of water rights will become increasingly important to the value of land tenure rights. Those advising on or researching land tenure rights will need to take greater account of the water rights regimes.

In those jurisdictions where they are implemented modern water rights regimes enable society to make rational decisions regarding the allocation and use of water and to provide secure rights for water users. There are clear and workable mechanisms in place. And, as alluded to earlier, the availability of water rights is bound to impact favourably on the social and economic worth of landed property rights.

Conversely, in those jurisdictions mostly in developing countries and those in transition, that lack modern legislation on water rights or where the legislation exists on the statute book but is not effectively implemented the rights interface will manifested in a way that a general lack of secure water rights may negatively impact on land tenure rights discouraging investment in land by both rich and poor or their survival. Indeed while rich and poor may compete over the use of land resources, such struggles are generally resolved one way or the other relatively definitively (often it seems with the poor being expelled from the land). Competition over water can be equally fierce. At the local level people get killed fighting over water often because of its impact on their use of land. But conflict is not confined to the local disputes. Competition for water may take place between any two points within a river basin or aquifer and between different actors: a major multi-national corporation currently stands accused of putting thousands of South Indian farmers out of work through its use of the water that feeds their wells.^[154]

As described above modern water rights regimes are relatively complex and costly to implement. Developing and transition states frequently struggle to effectively monitor the state of water resources, usually a pre-requisite for the implementation of an effective water rights regime. Some have questioned the transferability of modern water management approaches, including water rights regimes and the river basin approach to water resources management, which have also been largely from developed countries to developing countries.^[155] On the other hand, as described in Part Three, simple water allocation rules such as those that relate to land tenure holdings are insufficient to deal with the range and variety of demands on water resources. In many ways the real issue here may be just how to successfully develop and implement water management regimes for developing countries, a question that is beyond the scope of this paper. But the simple point remains that the non-implementation of water rights regimes will impact on land tenure rights.

In this connection the lack of dialogue is disconcerting although in many ways quite understandable. For those working on design or reform of water rights regimes it is easier to treat either land or the water as ‘the other’ and, as already noted, the banks or shores of a watercourse becomes a jurisdictional limit, a conceptual barrier between land tenure rights and water rights regimes. At the very least a degree of dialogue is called for between those who work with land tenure rights and those who work with water rights particularly as regards the provision of technical assistance. Otherwise, given the fundamental linkages between land and water, there is a real risk that inappropriate advice will be given.^[156]

Beyond this general perspective there are a number of key aspects of the land tenure/water rights interface that raise significant questions about the nature of land tenure rights, water rights and their relationship. These are the irrigation sector, the management of groundwater, the role of customary law, the impact of tradable water rights regimes and the relationship between the two regimes and attempts to alleviate poverty. These aspects of the rights interface are considered in the next Part.