Having outlined in broad terms the nature of land tenure rights and water rights, the aim of this Part is to shed light on the rights interface through a comparison of the principal features of the two regimes. As will be seen, many of the differences arise from the obvious differences in the physical nature of the two resources: while land is fixed and immobile water is a fluctuating, fluid and ultimately fugitive resource. From a legal perspective, rights over land are far easier to conceptualise, establish and administer than rights over water.
As already mentioned, a key purpose of both land tenure rights and water rights is to confer a degree of legal security on the right holder so as to create favourable conditions for investment in the resource or activities that involve its use.[61] In this context a number of factors contribute to the relative degree of security created by a legal right, whether in respect of land or water.
A key issue is the duration of the right. At first sight the longer the duration of a right then prima facie the greater should be the degree of security. In this connection the key attribution of a right of ownership is that it is unlimited in time. Use rights created in respect of land may also be indeterminate or for a fixed term, while as already mentioned, rights created under leases are generally for a “certain” or fixed term. Nevertheless, the fact that such rights are time limited may not matter too much as far as security is concerned for as one commentator has observed, “in situations where land users and the private sector are confident that the government will honour contracts, long-term and secure lease rights that are fully transferable can become virtually indistinguishable from private ownership. For example in Israel most land is state owned and leased to farmers for terms of 49-99 years without any negative impact on the functioning of land or credit markets.”[62] The key issue would appear to be whether or not the right is likely to be respected.
As regards modern water rights, while rights of indefinite duration do exist in a number of jurisdictions, the trend is clearly towards time limited water rights. Such rights are, as described in the previous Part, use rights.[63] As will be seen, the possibility of ownership rights over flowing water has never really been considered feasible in the European water law traditions. As regards the duration of water rights, the key issue is to strike an appropriate balance between the security needed to encourage investment and the need for flexibility as regards future allocations of water. Too short a term and the right does not confer a sufficiently long period over which to recoup a return on the value of investments. Too long a period and future re-allocation of water resources is constrained.[64] Modern water rights typically last for 15-20 years in respect of ordinary activities and up to 50 or even 70 years in respect of major investments such as the construction of a new hydro-power dam.[65] Thus in Spain an administrative concession may not exceed 75 years while in Mexico they may last for between five and 50 years and in South Africa they may last for up to 40 years.
Once a water right has been issued, the holder can expect to be able to rely on that right throughout the period of its duration. While at the end of that period the right holder may have an expectation that the right will be continued, s/he has no legal guarantee in this respect. In other words no compensation is payable if a water right is not renewed, either in full or in part.[66]
Apart from the duration of the right another important aspect of security is the expectation on the part of the right holder that his or her right will be upheld against third parties, through the courts as necessary. On a practical level, as regards third parties, the situation is in many ways far easier as far as land tenure rights are concerned. The holder of a land tenure right is usually able to ascertain the identity of the person who is interfering with his or her substantive enjoyment of that right and to take legal proceedings against that person.[67] In cases involving un-identified parties, such as illegal “squatters”, court procedural rules usually enable a plaintiff to issue proceedings against “persons unknown”.
In the case of a water right, however, it can be much harder for a right holder to identify who is interfering with the flow of water and thus his or her water right.[68] Indeed it may be impossible for an individual to do this and consequently the primary responsibility for the enforcement of water rights lies with the state rather than with the right holder. This issue is considered in more detail below.
The other main possible source of insecurity as far as a land tenure or water right is concerned is the state itself. As regards land tenure rights, most jurisdictions seek to protect their citizens against arbitrary expropriation, often in constitutional provisions relating to the sanctity of private property. Article 545 of the French Civil Code, for example, provides that
No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.
The basic concept is simple. Only the State, as the guarantor of the respect of the right to property, can oblige an individual to cede or lose the ownership of his or her land tenure rights: only the public utility or interest can justify such an assault on a right that is recognized as “inviolable and sacred”.[69] While the necessary powers are generally conferred on the state to expropriate land in such circumstances, the procedures are usually tightly regulated and expropriation is subject to the payment of full compensation.[70] If agreement cannot be reached either as to the necessity of expropriation or the level of compensation to be paid, legislative provision is usually made for such issues to be resolved by the courts.
As regards water rights the situation is a little different as the rights and duties of the water administration are usually spelt out in water legislation itself. The effect is that a water administration may not re-allocate water that is subject to a water right to a third party except in circumstances specified in the applicable legislation and on payment of compensation or the provision of an equivalent volume of water from another source. Such circumstances might include force majeure or the need, in the “public interest”, to re-allocate water for some other use in accordance with the applicable basin plan, an issue that is returned to below. The effect, at the end of the day, is broadly similar: rights may not be arbitrarily suspended or re-allocated by the state.
A major difference regarding the security of land tenure rights and water rights relates to the different nature of the resources themselves. A unique feature of land as a subject of legal rights is its immovability. The volume of water in a stream or river varies naturally, however, in accordance with climatic conditions and thus the limits of legal security are reached. A water right can only be exercised to the extent that there is sufficient water present in the source, and the probability of an entitlement being met at all times and, eventually, the security and dependability of a water right will increase with flow regulation. Therefore water legislation usually makes provision for a waiver of government liability for failure to satisfy the water right holder's requirements stipulated in the instrument of the water right, and for the suspension or limitation of water rights on a stream or river in times of drought or low water flow. Such provisions are usually contained in a condition to the water right.
No legal right is ever absolute and rights to natural resources such as land and water are no exception. Indeed both types of right are better characterised as bundles of both rights and obligations. The metaphor's image is a bundle of sticks in which each stick in the bundle represents a different right associated with property.[71]
Of the types of right considered in this paper, ownership rights over land confer the fewest obligations on the right holder and the largest number of rights. In particular the civil law tradition follows Roman law in defining “property” including “immovable property” as the right to enjoy a thing and to dispose of it in the most absolute manner.[72] A number of countries of the former Soviet Union still penalize non-use of land even in cases where land is subject to private ownership. This is unusual and as much as anything else probably reflects a distrust of market forces and a belief that bureaucrats can exercise better judgment over the use of land than private right-holders.[73]
The common law equivalent, the freehold estate, confers almost as much freedom on the right holder to use the land that is subject to the right, not to use it, to exclude others, to sell, mortgage, charge or otherwise dispose of it free from intervention by any third party, including the state.[74]
In practice, however, a land owner usually does not enjoy total freedom as regards the use of a parcel of land. Restrictions on the type of activity for which the land may be used are increasingly found in land use planning legislation which may also restrict the right of the owner to subdivide the parcel as a precursor to sale. Public health legislation and environmental protection legislation also restrict or prevent certain activities being undertaken on a land parcel or dictate how they are to be performed.[75] And the fear of a compensation claim if the parcel is used in a manner that causes damage to the property of others may serve as a practical restraint on the type of activities undertaken.
The key issue to note, however, is that such restrictions arise out of other legislative sources and are not inherent to the bundle of rights and obligations that make up land ownership. Indeed, as will be seen below, this is one of the main differences between land ownership rights and water rights. Land tenure law generally conceives of the “bundle of sticks” that comprise land ownership in the abstract without reference to the natural features of individual land parcels.[76] Thus while some obligations are inherent in land ownership, such as the right of support of neighbouring land (which may not be removed by, for example, quarrying), and various duties relating to water, including the duty to receive drained surface flow water from upper land, these apply equally to all land parcels within the jurisdiction.
Leases, as already mentioned, are usually subject to a number of conditions relating to the use of the land and how that use is to be exercised, including a condition as to the payment of rent. Similar conditions, other than rent, are found in use rights. Such conditions are more likely to be specific to the parcel of land, but ultimately their scope and content will depend on the objectives of the owner of the land. These may range from commercial objectives, such as limiting the types of business that may be undertaken on the land parcel so that such uses do not compete with a business of the owner, to ecological objectives, such as requiring the land to be used only in a specific manner that reduces or minimises harm to the environment. Consequently both lease and use rights quite often require the land to which they relate to be used for a specific purpose. In a number of countries of the former Soviet Union, for example, use rights over agricultural land are conditional upon the right holder continuing to use the land for agricultural purposes. Similarly, a business lease of commercial premises might restrict the use to which those premises can be used for example by requiring them only to be used as offices. In such circumstances, use restrictions are an aspect of land tenure even though other restrictions may also be placed on the use of the land parcel through, for example, land use planning or environmental protection legislation.
Conditions requiring continued use of the resource are commonly found in modern water rights: failure to use the water that is subject to the right for a specified period, say three years, may lead to the right being forfeited.[77] Indeed, in those jurisdictions in which the “prior appropriation” doctrine applies (see Box B) the fact of use is not itself sufficient: the water that is subject to the right must be put to “effective and beneficial use”.
|
Box B - The Prior Appropriation Doctrine The prior appropriation doctrine was developed to serve the practical demands of nineteenth century water users in the western United States. It originated in the customs of miners on the federal public lands who accorded the best rights to those who first used water. It was later extended to farmers and other users, even on private lands. Where it applies, water rights are granted according to where a person applies a particular quantity of water to a particular beneficial use. Those rights continue as long as the beneficial use is maintained. Most appropriation jurisdictions consider water to be a public resource owned by no-one. The right of individuals to use water under the prior appropriation system is based on application of a quantity of water to a beneficial use. The traditional elements of a valid appropriation are:
The date of the appropriation determines the user's priority to use water, with the earliest user having a superior right. If water is insufficient to meet all needs, those early in time of appropriation (senior appropriators) will obtain all of their allocated water; those who appropriated later (junior appropriators) may receive only some, or none, of the water to which they have rights. All of the states in which the prior appropriation doctrine applies have statutory administrative procedures to provide an orderly method for appropriating water and regulating established water rights.[78] Some states allow appropriators the options of applying for a permit or perfecting a common law appropriation by posting notice and diverting water. More typically state law requires a permit as the exclusive means of making a valid appropriation. While the prior appropriation doctrine has its criticisms, for example it tends to discourage water saving by senior appropriators, there appears to be little desire for substantive reform.[79] |
Another key obligation, usually also contained as a condition in a water right, has traditionally been to use the water only on a specified parcel of land. Beyond these basic obligations, modern water rights are usually subject to a number of conditions of both general application to all water rights (and which are typically spelt out in the legislation) and of specific application to individual rights (which are usually spelt out in the instrument that creates the right).
Examples of the former include conditions requiring water users to return unused or excess water to the watercourse from which it was abstracted, to treat any waste water prior to its discharge, to pay charges for the use of water and so forth. Examples of the latter might include relatively specific details as to how water is to be used, measured or treated. Such conditions form an integral part of the water right itself and allow the water administration to exercise a degree of control over how the water is used. If properly applied they have the effect of making each water right separate and uniquely adapted to the resource to which it relates. In some jurisdictions the scope and content of water rights may be varied by the water administration after the right has become effective.
Finally, apart from the case mentioned above where water rights are modified or suspended through no fault of the right holder, water legislation usually also provides that water rights may be suspended or cancelled as a form of sanction in cases where the right holder fails to comply with applicable conditions contained in the water right or fails to exercise the water right, and thus use the water, over a specified (long) period. In such cases compensation is not payable.
In general terms it may be considered that the more conditions to which a right is subject the less secure it is: the greater the number of conditions, the greater chance of one being breached and the right being brought to an end. In this connection from a legal perspective the number of conditions to which the most secure water rights are subject means that they are inherently less secure than land ownership rights, although not necessarily that much less secure than lease or use rights over land.
Apart from the fact that both make use of registers in which to record rights, the administration of land rights shares little in common with the administration of water rights. In short, as a process, water rights administration is much more complex. This is because of the nature of both water resources and water rights themselves.
Measurement is a good place to start. To be effective both land tenure rights and water rights must be capable of accurate delineation or measurement in order to answer the question of precisely what, or how much, is the subject of the right. In the case of land tenure rights this is, relatively speaking, a much easier task. Apart from being immobile, a land parcel can often be described with some certainty by reference to its physical features, which may include boundary fences and marks. Greater certainty can be provided through the use of a plan and a formal survey. The location of the land parcel can be further clarified by reference to an existing survey map or through the use of satellite technology. Once recorded, apart from unusual natural phenomena such as earthquakes,[80] the boundaries of a land parcel are likely to be altered only by human intervention, such an encroachment by the holder of a neighbouring parcel.
Measurement in the context of water rights is a much more complex matter. First of all, as already mentioned, the level and flow of water varies in most watercourses primarily as a result of climatic factors. The first task for a water administration is to monitor the level and flow of waters throughout the length of a watercourse as this will have impacts on both the quality of water and the amount that can be abstracted or otherwise used pursuant to water rights. This requires the costly installation and operation of measuring equipment and, if the river or stream in question is fed from glaciers or snowfields, it may also be necessary to monitor conditions in the high mountains.
The measurement of water rights themselves is also a relative complex matter requiring continued activity. If the flow of water in a watercourse is regulated (by a dam or a weir) a water right typically specifies the volume of water that may be abstracted and/or used. If it is not, then the right will specify a fraction of the flow that may be abstracted by reference to the overall flow rate of the watercourse. In the Australian states of Victoria, New South Wales and Queensland, for example, annual allocations are announced each year as a proportion of the entitlement of each water right. This varies from year to year depending on the availability of water resources. While each right holder will usually be required to maintain a record of the volume of water used or abstracted as a condition of his/her water right, the accuracy of such records must be routinely verified by the water administration, through physical inspections. Particularly in times of drought, when pressure on water resources is likely to be at its highest, the temptation to “cheat”, to abstract more than permitted by the water right, or any restriction placed upon it, is likely to be at its greatest.
But the quantity of water in a watercourse is not the only matter that requires constant measurement. Since time immemorial humans have disposed of wastes to rivers and streams, with or without treatment, and while increasingly regulated the practice continues. Solid and liquid wastes from urban sewerage systems, from factories and other pollutants from surface water run-off (particularly fertilizers and pesticides) contribute to reduce the level of water quality in rivers, streams and groundwater formations, and thus the quality of water that is subject to water rights.
The continued monitoring of water quality, as well as enforcement and remedial action when statutory water quality standards are breached, are therefore also necessary tasks for a water administration in ensuring that effect is given to the substantive content of water rights.[81]
In short, apart from the need for constant measurement and monitoring activity, the picture that emerges is that, in contrast to land tenure rights, water rights are dependent on the active management of the resource. Furthermore, the trend as regards water administration institutions is increasingly towards taking a drainage basin approach. In other words water is managed by reference to the shape or form of the land that forms the catchment of a major river, and its tributaries, from the upper watersheds down to the sea, or other final “terminus” (such as a lake). This approach is entirely logical from a hydrological perspective given that surface water within the basin will naturally flow in a common direction towards that terminus. But it means that water resources management is undertaken over what can be a very large land area, one that often does not accord with administrative boundaries, and can thus become a rather complex and expensive process.
The complexity can be usefully shown by the statutory procedures whereby water rights are allocated and reviewed. Such procedures, which are usually spelt out in primary legislation amplified as necessary by regulations, typically provide for:
· the making of a written application accompanied by specified documentation (such as a plan) and, depending on the size and nature of the proposed use, an environmental impact assessment;
· an inspection by the water administration;
· the publication of the application in a local or national newspaper;
· a period during which objections may be filed by third parties (such as existing water users who may fear that their rights will be adversely affected by the proposed use as well as environmental non-government organizations);
· a review of the application by the water administration, which may include the holding of a public hearing if appropriate; and
· a decision.
The question arises as to the basis on which such decisions are to be made: how are water rights allocated?[82] To ensure that such decisions are not made on an arbitrary basis by the water administration, modern water legislation typically requires the use of one or more mechanisms to promote rational and effective decision making. Of these the most important is probably planning. The legislation of a number of jurisdictions requires the preparation and periodic revision of river basin plans. In France, for example, the 1992 Water Act introduced a complex water resources planning system based on General Water Plans (Schémas directeurs d'aménagement de gestion des eaux) covering one or more basins and Detailed Water Plans (Schémas d'aménagement et de gestion des eaux) covering one or more sub-basins (or an aquifer).[83] Typically, the legislation also specifies the minimum content such plans.[84] The purpose of such plans goes beyond the simple allocation of water rights. They may set out development and management priorities and increasingly a key concern is to strike an appropriate balance between the needs of societies to use water and the protection of the environment. To what extent do such plans take account of land use and land tenure? The short answer is that land tenure is not usually a consideration, although the uses of land within a river basin are considered, primarily as regards their impacts on water quality but also as regards their potential impacts on water demand.
Nevertheless, such plans do generally set out priorities for the use of water. This is required, for example, by the Spanish Water Law (as amended) which states that priorities are to be determined in the relevant “Basin Hydrological Plan”. However, in the absence of such a plan, the priorities should be: 1) drinking water supply; 2) irrigation of land and agricultural uses; 3) industrial uses for electricity production; 4) other industrial uses; 5) aquaculture; 6) recreational uses; 7) navigation and water transportation; and 8) other uses.[85] In the event that two applicants are competing for the same water resources, the water administration is bound to have regard to and apply the relevant priorities for water use.
In order to ensure support for such types of plan, as well as to ensure that key interests are not omitted during the course of their preparation, modern water legislation typically provides for the creation of various basin or sub-basin level fora, such as basin councils or committees, in which stakeholders can participate in their development and or review. Sometimes such bodies hold additional functions such as determining applications for particular categories of water right.
Other mechanisms that assist in preventing arbitrary decision making in the context of the allocation of water rights include:
· the setting of statutory minimum flow requirements for rivers from which no derogation is permitted;
· the establishment of water “reserves”, whereby specified volumes of water are set aside for priority purposes, including environmental needs;
· the creation of so-called “in-stream rights” whereby a notional water right is created and held in trust by the state so as to reserve the water that is subject to that right for environmental purposes;
· the requirement for an environmental impact assessment; and
· the satisfaction of a test of public welfare.[86]
Once allocated, details of water rights are usually recorded in official registers maintained by the water administration and it is the register, not the individual document held by the right holder, that is conclusive as to the existence and scope of each water right.
It is at this point, as mentioned at the beginning of this section, that the main point of similarity with land tenure administration is reached. In most jurisdictions, in order to have legal effect, land tenure rights, or more specifically “real” or “immovable” property rights, are subject to registration. In other words, apart from ownership rights, various other types of land tenure right, including leases, use rights, charges and mortgages only have legal effect once they are registered.[87]
The main task of a land tenure rights administration is to operate a country's land registration system. Such a system can be conceived of as comprising three main elements: (a) the land registration records; (b) the institutions (often called “registries”) responsible for managing those records; and (c) the rules that specify how the system should operate. It also needs to deal with any later changes to that information, such as: (a) changes to the parcel, by, for example, subdivision or combination; (b) the transfer of rights, by sale, inheritance, reversion to the state, etc.; and (c) the addition of new rights or encumbrances that relate to the parcel such as charges, mortgages, etc. The aim of an efficient and up to date land registration system is to make it possible to tell at any time who has what rights to any registered parcel of land.
Although there are many different types of land registration systems in operation around the world, a distinction is sometimes made between a “deeds registration system” and a “title registration system”.
In a deeds registration system, what is recorded are documents evidencing transactions in land. For example, the buyer of a piece of property would record the deed he or she received for the land in a government deeds registry. In a well-run, widely-used deeds system, a search of these records should provide quite accurate and complete information. However, it remains the case that a deeds system is a system for registering documents, not for registering title to land. Thus the records do not offer any guarantee of the legal status of a particular piece of property. In other words, a deed does not by itself prove who holds a land tenure right but only records an isolated transaction. Many deeds systems are not compulsory, meaning that they may not present a complete picture because parties to a transaction may decide not to register the documents. In addition, although there are exceptions, deed registration systems have traditionally not been tied to cadastral or parcel maps. Thus, information is arranged according to the names of buyers and sellers, rather than according to a particular parcel of land. This makes it more difficult for users trying to learn the current legal status of any parcel.
In a title registration system, the unit of registration is the land itself, not a deed. Each parcel in a title registry is identified on a map, and a “register” or parcel record for that parcel is prepared. That register will theoretically contain all relevant current legal information about: (i) the location and size of the parcel (including a reference to the registry map); (ii) the persons who hold legal interests in that parcel; and (iii) the nature of the legal interests held. When land is “brought into” a registration system, a determination is made as to each of the three foregoing items and the information is written in the parcel register. Thereafter, each transaction or other event that changes any of those items is shown on the same document. This ensures that there is a comprehensive and up-to-date record of the legal interests in a piece of land set forth in one document. Unlike a deeds system, a title registration system purports to offer a “snapshot” of the current legal status of a piece of land, with no need to “go behind” the register and examine the entire transactional history of that land.
In practice, there are many variations of these two approaches, to the extent that it is sometimes difficult to distinguish between them. For example, in some title registration systems, such as those of Estonia and Germany, the record of land parcels is physically separate to the register of legal rights, the former being maintained by the land registry, the latter by the court. Furthermore, in a number of countries, including England and some US states, large areas of land remain unregistered. Instead title is proved on the basis of deeds that typically show a good “root of title” stretching back to more than 15 years before.[88]
In short, except during periods of systematic compulsory registration of land, as undertaken during certain types of land or agrarian reform, the administration of land tenure rights is, in contrast to water rights administration, largely a passive affair in that register entries are made following the conclusion of transactions involving right holders. Nevertheless, although the process of land tenure rights administration appears to be simpler than that of water rights administration,[89] the sheer number of land tenure rights that are subject to registration and re-registration means that in practice a land tenure administration is more costly to fund than a water rights administration in the same country. Having said that, in developed countries land tenure registration systems are usually self-financing through the payment by rights holders of registration fees. Problems can arise, however, in developing countries where the volume of transactions is low making it difficult for registration systems to be self-financing.
Finally, one area in which there is a major divergence of approach regarding the tasks of the relevant administration body concerns enforcement. In addition to monitoring the use of water and the volumes used and abstracted by water rights holders, a water administration need to have the necessary powers to enter land to undertake inspections, to require the provision of information and to take enforcement action, including prosecutions, against those who illegally use water without a necessary water right (or who fail to comply with conditions contained in water right). This usually entails the provision in legislation for the appointment of “inspection officers”, a category that may involve those officials involved in environmental protection tasks as well as the police. While an individual might take action against a user immediately upstream who has taken “his” water, in practice most enforcement action regarding water rights is taken by the water administration.
No equivalent enforcement measures are necessary or provided for by land tenure legislation: responsibility for dealing with breaches of land tenure rights lies with the right holder and usually no-one else.
In recognition of the economic value of water, there is a general trend in water legislation to introduce charging mechanisms for water abstraction and use and to tie these to the water rights. A number of different criteria for setting the rate of charges are specified in water legislation.
These include:
· the volume of water abstracted, the area in which it is used and the source from where the abstraction takes place;[90]
· the volume of water abstracted;[91]
· the kind of use to which the water is put and the source of the abstraction;[92]
· the type of source from which the water is abstracted;[93]
· the “profit” made by the water user from his or her use of the water;[94]
· the administrative costs of the water rights administration relating to the issue and management of water rights;[95] and
· the kind of use to which the abstracted water is put.[96]
Prompt payment of such charges is usually a condition of a water right and non-compliance with such a condition may lead to the right being suspended or cancelled. The payment of fees or charges may also be prescribed in connection with applications to the water administration for new water rights or the modification of existing rights.
Similarly, as regards land tenure rights, the process of registration in a land register usually entails the payment of a fee to the relevant land registry, in addition to applicable legal fees such as the costs of notarisation as well as any tax payable on the transaction itself (such as a transfer tax or stamp duty). Whether or not land tenure rights attract other types of payments by the right holder will depend on the nature of the right. As described above, holders of leasehold rights are usually required to pay rent to the land owner. The holders of use rights may be required to pay charges to the owner of the land. On the other hand ownership of land does not of itself require payment of any type of fee.
However in the case of ownership rights, while the right itself does not attract a payment liability as a matter of tenure, the tenure itself may be subject to the payment of a tax, specifically a land tax. Indeed such an obligation may not be restricted to the owners of land and may include the holders of other types of land right. Generally speaking, such land taxes are recoverable at the local level by local and municipal governments.[97]
Non-payment of such taxes may ultimately lead to the loss of a land right, but only if the entity to which the money is owed chooses to enforce the liability against the land right as opposed to any other property held by the right holder. In other words, non payment of land tax does not usually directly affect land rights in the same way that non-payment of water charges can lead directly to the suspension or cancellation of water rights.
Land tenure rights, and their administration, are largely unaffected by international law. States have, in accordance with principles of customary international law, as (re-stated in Principle 21 of the Rio Declaration), sovereignty over the natural resources within their territory in accordance with their own development policies. This includes the land within their borders. As such states are effectively free to determine both how the land within their borders is to be allocated and under what type of tenure regime.[98] The relatively few “soft law” obligations undertaken by states in the context of international agreements do not greatly impact on this basic position.[99]
In contrast, water rights and water rights regimes are often strongly influenced by international law in so far as they relate to the use of the water of transboundary watercourses. This is not an insignificant issue: almost half of the earth's land surface lies within international river basins and some 263 rivers cross international borders. To be more specific, international law does not regulate the content of water rights or water rights regimes,[100] but it does restrict how states allocate the water of transboundary watercourses within their borders. For notwithstanding the content of Principle 21 of the Rio Declaration, states do not have absolute sovereignty over the waters of such rivers within their borders. In practice many of these rivers are subject to bilateral and multilateral agreements concerning the use and allocation of their waters as well as their protection from pollution. In the absence of such an agreement, and pending the entry to force of the only global instrument to address this issue, the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, it is necessary to look to customary international law. In outline, states have the right to the reasonable and equitable use of the waters of a transboundary watercourse coupled with the duty not to cause significant harm to other states through which that watercourse passes.
What this means in practice, as far as water rights are concerned, is that first of all there are limits on the amount of water within a state’s borders that can be subject to water rights relating to a transboundary watercourse as well as, potentially, the types of use to which that water may be put. Secondly, in the already complex process of administering water rights at the national level, the international dimension cannot be neglected in the case of transboundary watercourses. As regards land use and land tenure rights, another effect may also be to constrain the use of otherwise productive land, simply because water that is otherwise physically available for use on that land, for irrigation for example, may not be used because of obligations under international law.
The reason why a land tenure administration can focus purely on the issue of rights registration is that in most jurisdictions land tenure rights are either inalienable, meaning that they are not capable of being transferred, or because land rights transactions are determined privately primarily through market forces. In other words land rights are sold, traded, gifted or mortgaged at the private discretion of the right holder. Following the end of the cold war and as a result of globalization and increased policy support for market based solutions, tradable rights are in many ways becoming the orthodoxy as far as land tenure is concerned. In addition to promoting the freedom of choice and initiative of land rights holders, land rights are seen by many as the optimal means of promoting the efficient use of land resources.[101] Another important role of markets is that they permit land assets to be used as collateral to raise credit.[102]
While a variety of legal rules may control how land rights are to be purchased and sold, for example the formalities of the relevant documentation as well as the procedures for title registration, land tenure legislation is by and large extremely permissive as regards the scope and content of land transactions, particularly as far as land ownership rights are concerned. This is not to suggest that unregulated or lightly regulated land rights markets exist everywhere. Particularly in former socialist countries, where concepts of individual rights to land, whether in ownership or use are still relatively novel, both deliberate, in the sense of policy driven, and accidental formal impediments to the creation of land markets remain.[103] And as will be seen below, ongoing reforms seek to remove such impediments and secure a future for market transactions.
This situation contrasts quite strongly with that of water rights. Trade in water rights per se is much rarer and of comparatively recent origin. Indeed, many jurisdictions do not permit the trade in water rights separately to the land to which they have been issued for. Where it exists, the trade in water rights tends to be quite regulated. Individual transactions are generally subject to the prior approval of the water administration. This is primarily to protect against adverse impacts on third parties, specifically other water rights holders, and on the environment.[104] For example, in the American state of Colorado, all transactions involving water rights are embedded in a legal and administrative structure that carefully regulates external effects. Each district has its own specialist Water Court and the office of State Engineer investigate all of the technical aspects of proposed transactions.[105]
Only in Chile has an unregulated water rights market existed since 1981. For their supporters, tradable water rights offer a number of claimed advantages. Apart from ensuring a more economically efficient allocation in place of the planned approach of most water rights regimes, tradable water rights are also seen as a relatively painless means of re-allocating water rights, and thus water, from less to more economically productive uses.
Why, it may therefore be asked, is the trade in water rights not more widely practised? The answer is found in the title to this paper: the land/water rights interface. In short, notwithstanding the different approaches of land tenure rights and water rights regimes, water rights have generally been tied to a parcel of land. In many jurisdictions the only way to transfer a water right is to transfer the parcel of land to which it is attached. As discussed in more detail below, the implications of completely separating water rights from land tenure rights have potential implications for both types of right. But even in those jurisdictions where the unregulated trade in water rights is permitted there have been relatively few transactions as a result of physical limitations. In other words amendments to legislation to permit trading in water rights will not automatically result in such trades taking place.
The reform of land tenure rights and water rights presents a common legal challenge for states. Any change in legislation that has the effect of modifying, restricting or even terminating such rights will be prima facie liable to the payment of compensation. Consequently the legality of reforms to either land tenure or water rights risk legal challenge: the legality of the abolition of private waters in the 1985 Spanish Water Law was, for example, subject to an unsuccessful challenge to the Constitutional Court.[106]
However, the objectives of reforms to land tenure rights and water rights are generally quite different.
As regards water rights, the main drivers for reform have related to concerns about the sufficiency of water resources having regard to existing water rights and current and planned uses of water, as well as land. Very often the basis for water law reform is quite technically biased in favour of the complex disciplines that make up water resources management. The effects include the introduction of new water rights regimes to replace those based on “private waters” and riparian rights.
Over recent years concerns over the effects of large scale water abstractions on the environment have played an increasingly important role in water sector reforms that seek to promote the sustainable management and use of water resources. In this connection, key objectives for water management, which have been influential in guiding the shape of water sector reforms, including reforms to water rights, are the so-called “Dublin Principles”. An attempt to concisely state the main issues and thrust of water management[107] they provide that:
· Freshwater is a finite and vulnerable resource, essential to sustain life, development and the environment;
· Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels;
· Women play a central part in the provision, management, and safeguarding of water;
· Water has an economic value in all its competing uses, and should be recognized as an economic good.
These principles are sufficiently vague to allow widespread agreement while leaving their substantive content, in respect of which there may be wide disagreement, un-stated. In practice, while the first two principles have had some indirect effect on water rights reform, the central role of women remains largely unrecognized as far as water rights regimes are concerned. The fourth principle, in many ways the most controversial, is reflected in the introduction of charges for the use of water that is subject to water rights, described above, and also in the ongoing debate about tradable water rights.
A key objective of water rights reforms in many countries has been to bring water under state ownership or control, as described above, and to regularize existing uses of water by bringing them within a newly introduced administrative water rights regime. Experience of this process shows the importance of developing sufficient administrative capacity, of encouraging existing water users to regularize their water entitlements through the use of incentives as opposed to the threat of sanctions, and of granting generous time deadlines for this as well as the need for extensive public awareness campaigns.[108]
Generally speaking, water rights reforms have had fewer re-distributive or socio-economic objectives than reforms to land tenure rights. An exception is South Africa whose recently enacted Water Act seeks to implement the two key principles of the 1997 National Water Policy, “sustainability” and “equity”. With 83 percent of agricultural land previously in the hands of white farmers, and the majority of water for irrigated agriculture also controlled by them through the white-dominated irrigation boards, land tenure reform and water reform are both necessary to right the injustices of the apartheid era.[109]
One of the key features of the Water Act was the abolition of riparian rights[110] and its replacement with a modern administrative water rights regime. The implications of pro-poor water sector reform are considered in more detail below. However, notwithstanding this achievement, the fact remains that until substantive land reform takes place that also confers de facto access to water sources to non-white farmers, water rights reform risks having only a limited impact regarding the socio-economic objectives of the reforms.
By way of contrast to reforms in the water sector, socio-economic considerations have been much to the fore in land tenure reforms[111] although the precise objectives of reform have varied over time as well as the mechanisms for achieving these. Indeed land tenure reform arguably has a longer and more complex history than water rights reform (see Box C).
Governments typically have a number of objectives for land reform programmes.[112] These may include one or more of the following:
poverty alleviation through land re-distribution;
the
recognition of customary or indigenous rights;
strengthening land rights
security;
the removal of impediments to land markets;
social objectives
that seek to strengthen the rights of less advantaged sections of society such
as women, racial groups and sharecroppers;
the promotion of foreign
investment in land;
the promotion of economic development and agricultural
growth.
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Box BC - Trends in Land Reform Modern concepts of agrarian and land reform probably have their most direct heritage in the agrarian transformation that began in Denmark in the late 1700. Building on the ideas that were emerging especially in Britain but also in France and Germany, reformers such as the Counts of Bernstorff and Reventlow initiated a programme of consolidating their peasants’ fields, introducing new technology and selling the land to their peasants. Important for our current purpose is the observation that the framers of this reform also recognized that peasants turned land owners stood little chance of success without institutional reforms. Thus inter alia legal reforms were implemented. The Russian revolution and a range of nationalist/populist regimes between World Wars 1 and 2 moved the ideology of agrarian reform in the Western world from a liberal economic process to a state-engineered way to redistribute land and achieve equity in rural areas. Most of the land reforms in Latin America, Asia and the Near East were derived from this model. By the mid 1960s there was a general consensus that land reforms were an important measure to achieve equity and economic growth in rural areas. In the 1970s and 1980s the agricultural policies of many countries, particularly in the developing world, were mainly characterized by special agricultural programmes such as price controls, subsidized agricultural services and inputs, state intervention and regulations to protect domestic markets and land immobility through agrarian reform regulations which intimidated investments. Such programme proved to be unsustainable. The current period, following the collapse of the Berlin Wall has seen a return full circle with the marketplace being considered to be the ultimate distributor of land. Coupled with the adoption of structural adjustment measures, and in the context of political and economic liberalization following the collapse of the “statist”, centrally planned and socialist political economy at the end of the 1980s, the role of the state is being redefined so as to create a comprehensive institutional network that ensures rights and security. Source: Herrera, A., Riddell, J. and Toselli, P. 1997. Recent FAO experiences in land reform and land tenure, FAO, Rome |
While the more famous land reforms undertaken in the decades after World War II (in jurisdictions such as Japan, Korea, Taiwan, Brazil and elsewhere in Latin America, India etc) have generally focussed primarily on re-distributive issues[113], the era of radical re-distributive land reforms is largely over. Instead the current focus on market oriented land policies means that while the demand for re-distributive land reform is still present in many countries, “market friendly” solutions are being sought.
Except in cases where land reform takes place in a revolutionary context involving massive political upheaval, compensation must otherwise be paid to those who own the land that is subject to redistribution. A variety of “market friendly” land reform programmes are currently being promoted by the World Bank particularly in Brazil and South Africa. In the past such approaches have rarely succeeded in transferring much of a country's land, or have done so extremely slowly because of a lack of political commitment to provide the funding necessary to compensate land owners.[114]
What is striking is just how different the objectives of land tenure reform are to water rights reform. While some land reform programmes may have secondary environmental benefits, such as reducing the population pressure on fragile land areas, the concerns of water rights reform, scarcity and sustainability, are quite absent from the land reform debate.[115]
In part this may explain why land tenure reforms and water rights reforms are so often ill-coordinated. Land and water reforms are currently ongoing in a number of Southern African countries, often with little co-ordination or consideration of their eventual mutual outcomes. The reasons for this lack of co-ordination are explored in more detail below.
Although land tenure rights regimes and water rights regimes share a number of similar basic purposes and features, the rights themselves and the basis on which they are allocated and administered are substantively quite different. The role of international law and markets and the objectives of sector reforms are other key areas of difference. This, as is described in the next Part, is in quite stark contrast to the historically close relationship between land tenure rights and water rights in many jurisdictions.
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[61] Such investments may be
financial but also include investments in time and labour. [62] Deininger, K. 2003. Land Policies for Growth and Poverty Reduction, a World Bank Policy Research Report, The World Bank, Washington D.C., p. 54. [63] In Texas, for example, administrative water rights are not time limited and nor are those introduced in England and Wales following the entry into force of the Water Resources Act of 1963. [64] If, for example, 100 year water rights were to be introduced then the benefits of time limited rights would be largely lost: no re-allocation of water subject to such rights could take place until the end of that period without the payment of compensation. [65] This is because it usually takes longer to make a return on larger water sector investments. [66] Generally a water administration is bound to act in a fair manner and will usually, all else being equal, try to ensure that existing rights holders can continue their use of water even if at a lesser amount. [67] A possible exception relates to the effects of air pollution although the interference is not strictly speaking with the legal substance of the right. [68] Not always of course. The impact on existing right holders of the construction upstream of, say, a major new dam would be quite evident. [69] Conseil d’Etat. 1999. L’Utilité Publique Aujourd’Hui, La Documentation française, Paris, p. 15. [70] But not always. Australian States (as distinct from the Commonwealth) have no constitutional obligation to pay compensation for the compulsory acquisition of private property. Clark, S.D. 1999. Reforming South African Water Legislation: Australian Examples, in Issues in water law reform FAO Legislative Study No. 67, 1999, Rome, p. 7. [71] Arnold, C.A. 2002. The Reconstitution of Property: Property as a Web of Interests, 26 Harvard Environmental Law Review 281, p. 284. Arnold goes on to argue that the bundle metaphor is in fact inadequate and that consideration should be given to its replacement with an alternative: “the web of interests”. [72] The dominium of Roman law comprised both the legal title and the right of actual enjoyment. In other words dominium regarded as conceptually inseparable the owner’s right to use, dispose of and exclude others from his property. Article 544 of the French Civil Code reflects this approach: “Ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.” [73] Giovarelli, R. Land Use Regulation in Prosterman, R. & Hanstad, T., op cit., p. 83. [74] However, many early New England towns had laws forcing the owners of town lots to build on them or lose them. Hart, J.F. cited in Freyfogle, E.T. 1996. Ethics, Community and Private Land, 23 Ecology Law Quarterly 631, p. 640. [75] Typically by requiring specified activities to be undertaken only on the basis of a permit which in turn contains conditions. [76] Freyfogle, E.T. The Particulars of Owning, op cit., p. 585. [77] For example, the German Water Law as amended on 23 September 1986 and the Spanish Water Law of 1985 (as amended). The issue of continued use arguably marks the borderline between the characterisation of water rights as rights over a commodity or rights over a “public good”. One of the very few places in which the former characterisation holds is Chile, where, as described in more detail below, water rights are fully tradable. [78] Getches, D., op cit., p. 74. [79] A full discussion of the doctrine is beyond the scope of this paper. See further Tarlock, A.D. 2001. The Future of Prior Appropriation in the New West, 41 Natural Resources Journal 769. [80] Given the subject matter of this paper, two other examples of natural alterations to the boundaries of land parcels deserve mention. These are cases where sediment builds on the banks of rivers to extend the area of riparian land parcels and where rivers themselves alter course. Such issues are typically addressed in land legislation. Article 556 of the French Civil Code provides, for example, that deposits and accretions which gather successively and imperceptibly on the banks of a river or stream are called alluvion and that such alluvion benefits the riparian owner, whether it be a question of a river or of a stream. Article 559 provides that where a river or stream, “removes by a sudden drift a considerable and recognizable part of a riparian field and carries it towards a lower field or to the opposite bank, the owner of the part removed may claim his property; but he is compelled to file his claim within one year: after that period, it will no longer be admissible, unless the owner of the field to which the part removed has been joined has not yet taken possession of it.” Both articles apply irrespective of whether or not the river or stream in question is navigable or floatable a distinction that is considered in more detail below. In the case of alluvion on a navigable/floatable river or stream the riparian land owner may be required to leave a footpath or towpath in accordance with applicable regulations. [81] The quality of water in a watercourse is also affected by the quantity as one of the key attributes of water, and the reason why societies continue to dispose of wastes to watercourses, is its ability to dilute pollutants and ultimately to regenerate itself. [82] In addition in the states of the western United States where the prior appropriation doctrine controls, continued beneficial use of appropriated water is a condition of the continued existence of a water right. See Part Five below. [83] FAO. 2002. Law and Sustainable development since Rio: Legal trends in agriculture and natural resource management. Legislative Study No. 73, Rome, p. 152. Other countries whose legislation requires the preparation of such plans includes Spain 1985, Italy 1989, Morocco 1995, South Africa 1998, Uganda 1995, South Australia (Australia) 1997 and Texas (USA) 1997. Furthermore, the European Community Framework Water Directive means that the preparation and periodic review of River Basin Management Plans is mandatory for EU member states. [84] For example the minimum contents of Spain’s National Water Plan are specified in the law: - Measures necessary for the co-ordination of the basin plans. - Preferred option to possible alternatives re the above - Plans and conditions for inter-basin transfer - Any foreseen changes in the uses of the resource which may affect existing uses for the supply of towns or irrigation. [85] Article 65 Water Law as amended. In some jurisdictions priorities themselves are set out in water legislation. The problem with that approach is its inflexibility: changes in perceptions of priority cannot be accommodated without a change to the law. It is to be noted that such priorities often reflect socio-political as opposed to strictly economic objectives. [86] This test is commonly required by legislation in connection with applications for permits for water rights under the prior appropriation in the western United States. It is the second test to be applied, the first being whether or not there is sufficient un-appropriated water. Getches, op cit., p. 141. [87] In the common law such instruments may, however, have effect in equity but the scope and form such equitable rights is beyond the scope of this paper. [88] In England and Wales between 35 percent and 50 percent of the land area, some 13 million acres in all is not, and has never been, recorded at the land registry. Cahill, K. Plots of Money, The Guardian Wednesday 20 August 2003. It should be noted that title evidenced in this way is considered to be as good as title evidenced through the land registry records. Unregistered title is not defective title per se. [89] This is probably something of an illusion given the technical aspects of land registration. [90] France and Arizona in the United States of America. [91] Victoria, Australia. [92] Germany. [93] The Netherlands. [94] Spain. [95] England and Wales. [96] Italy and Mexico. [97] Herrera, A., Riddell, J. & Toselli, P. Recent FAO experiences in land reform and land tenure, FAO Rome, p. 57. [98] Exceptions include specific commitments under international law, for example as to the use of part of their territory as a diplomatic mission or a military base by a foreign power or the obligations of the member states of the European Union towards the nationals of other member states. See further Hodgson, S., Cullinan, C. & Campbell, K. 1999. Land Ownership & Foreigners: A Comparative Analysis of Regulatory Approaches to the Acquisition and Use of Land By Foreigners, FAO Legal Papers Online, FAO, Rome, www.fao.org/Legal/default.htm, pp. 3 and 4. [99] For example, the wording of article 14 of the 1989 International Labour Convention No. 169, does not create particularly strong obligations: the collective, “rights of ownership and possession [of indigenous peoples] over the lands which they traditionally occupy shall be recognized”. Governments are required to “take steps as necessary to identify” these lands and to “guarantee effective protection” of the recognized rights”. But in any event, given that international interests are not seriously threatened by a breach of this type of commitment, what compliance action if any could realistically be expected in the event of such a breach? [100] To the extent that treaties of the European Communities create specific obligations under international law among the member states, an exception to this statement is provided by the EC Water Framework Directive (Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy OJ L 327/1 of 22 December 2000) which requires the prior authorization of water abstraction or impoundment (art. 11). [101] It is, however, to be noted that attempts to convert land from one type of use, such as agriculture, to a more profitable use, such as for housing or commercial use, will generally be subject to land use planning restrictions. [102] If the land cannot be sold, the creditor cannot realise the value of the land through a sale thus recover the loan and outstanding interest. [103] See, for example, Prosterman, R. & Hanstad, T. 1999. Legal Impediments to Effective Rural Land Relations in Eastern Europe and Central Asia The World Bank, Washington D.C. [104] Examples of jurisdictions that permit some trade in water rights include Spain, Alberta (Canada), the Philippines, Queensland, South Australia and Victoria (Australia) and Mexico. [105] Perry, C.J., Rock, M. & Seckler, D. 1997. Water as an Economic Good: A solution or a problem? Research Report 14, International Irrigation Management Institute, Colombo, p. 15. [106] In a similar vein the water administration of England and Wales (the Environment Agency) recently received legal advice to the effect that attempts to time limit the statutory water rights of unlimited duration introduced with the 1963 Water Resources Act would breach human rights legislation. Legal advice alters Agency abstraction policy, The ENDS Report No. 322, November 2001. [107] Solanes, M. & Gonzalez-Villareal, F. 1999. The Dublin Principles for Water as Reflected in a Comparative Assessment of Institutional and Legal Arrangements for Water Resources Management, TAC Background Paper No. 3, Global Water Partnership Technical Advisory Committee, p. 6. [108] Garduño-Velasco, H. 2001. Water Rights Administration: Experience, Issues and Guidelines FAO Legislative Study No. 70, FAO, Rome. [109] Kirsten, J., Perret, S. & Van Zyl, J. 2000. Land Reform and the New Water Management Context in South Africa: Principles, Progress and Issues, Paper prepared for a seminar of the Natural Resources Management Cluster and Land Policy Thematic Group, The World Bank, Washington DC, 27 September 2000. [110] See Part Four below. [111] Some commentators differentiate between land reform, land tenure reform and agrarian reform. The first type, land reform, is said to relate to the physical re-distribution of land, while land tenure reform is said to be concerned only with modifications to the tenure regime under which land is held without affecting the physical size of land held under such a regime. Agrarian reform on the other hand is said to focus more on the means of agricultural production which include but are not limited to land. [112] It is to be emphasized that on-going land reforms are not limited to developing countries and states in transition. Recent reforms in England and Wales, for example, in the form of the Commonhold and Leasehold Reform Act 2002, will see major changes in the manner in which leasehold residential property is both held and managed. [113] FAO. 2002. Law and Sustainable development since Rio: Legal trends in agriculture and natural resource management, op cit., p. 233. [114] Deininger, K. 2003. Land Policies for Growth and Poverty Reduction, a World Bank Policy Research Report, The World Bank, Washington D.C., p. 16. [115] De facto changes in tenurial relations have also occurred due to conservation programmes including the establishment of protected areas (national parks and reserves) as a result of which local people have been displaced or have had their resource restricted. Quan, op cit., p. 33. |
