1 INTRODUCTION

This paper is concerned with the interface between land tenure rights and water rights. Such rights relate to what are arguably the most important natural resources of the modern nation-state. Land, in the form of territory, is a pre-requisite for a state's existence^[1] while freshwater is a pre-requisite for life.

The relationship between these two resources is of equal significance. Water is necessary for most productive uses of land. In a growing number of countries with arid climates the main constraint to agricultural growth is the availability of water rather than land.^[2] At the same time the use of land has major impacts on both the quality and quantity of water resources. In other words, decisions regarding the use and allocation of one resource impact directly or indirectly on the use and allocation of the other. To ensure sustainability, the need for an integrated approach to the use and management of these resources is increasingly recognized.

The principal mechanism for the allocation of land and water resources is the institution of legal rights: land tenure rights and water rights. The substance of such rights and the manner in which they are allocated have major implications for the use and management of land and water resources as well as for the social and economic development of states and their citizens, with particular impacts on the livelihoods of the poor.^[3]

At the outset it is important to recognize the fundamentally important role that land tenure rights have played throughout history in the socio-economic development of states and nations, a role that they continue to play. A primary production factor, source of employment and repository of personal wealth, land performs an economic function of paramount importance. In many societies, both social status and power depended, and indeed continue to depend, on the size and structure of land holdings.^[4] What form land tenure rights should take and how those rights are or should be allocated therefore raise questions that are fundamentally political in nature. The answers to those questions, in the shape, form, content and allocation of land tenure rights, land tenure regimes and reforms to such regimes are themselves symptomatic of what are ultimately ideological expressions of the relationship between humans and the land.

For centuries lawmakers have used private property, including land, as a tool to stimulate individual enterprise and economic growth.^[5] Very often such growth has been at the expense of the poor and the landless or those rendered landless. Revolutions have been fought and political fortunes have waxed and waned over the issues of land rights and land reform. Indeed land reform, or the absence of land reform, remains an acutely sensitive political issue in many parts of the world.^[6] Following the end of the cold war, current orthodoxies, as reflected in the policies of governments and donor agencies, emphasize an increased role for private land rights, private property and the liberalization of market transactions in the land sector.

In many jurisdictions, water rights have for a long time been considered as a subsidiary component of land tenure rights, a right to use water often being dependant on the existence of a land tenure right. In contrast to land tenure rights, however, debate over water rights and their reform has tended to be less concerned with ideology than with hydrology, with hydraulic engineering than with social reform. In short, water rights have had a much lower popular profile than land tenure and land rights.

In part this is because although water is necessary for most productive uses of land,^[7] water rights are not. To take the case of agricultural land, in temperate climates sufficient moisture is provided from rainfall to permit the growth of crops and other vegetation. Irrigation is simply unnecessary thus obviating the need for water rights. As regards urban and peri-urban areas, most land is supplied with treated water through piped water supply networks. While the supplier^[8] will generally need to hold water rights in respect of any water that it abstracts from a natural source, households and commercial users connected to such a network rely on the supplier's statutory duty to provide them with wholesome water, rather than on water rights. Generally speaking, in urban and peri-urban areas water rights are of little practical concern to most water users other than the operators of market gardens^[9] and large industrial enterprises, such as factories and power stations, which may hold their own separate water rights: this is often cheaper than relying on treated drinking water from the water supply system.

However, in jurisdictions with arid climates or in times of drought and water shortage water rights rapidly climb national political and socio-economic agendas.^[10] The traditional response to water shortages has been an engineering response, through the construction of dams to store water and canals and pipelines to convey it to those places where it is needed. An increased awareness of the environmental costs of this kind of approach and a growing reluctance on the part of governments to meet the financial costs, together with the fact that in many cases the cheaper and easier schemes have been constructed, means that increased focus is being placed on the better management and allocation of available water resources.

Indeed as the world's water resources come under increased pressure, the importance of water rights is likely only to increase. Already, around one third of the world's population live in countries that suffer from moderate to high water stress. Continued population growth and the effects of climate change, a phenomenon whose eventual impacts are not yet fully understood, suggest greater pressure still: it is reckoned that the demand for water will increase by around 50 percent in the next 30 years and that around 4 billion people, one half of the world's population will live in conditions of severe water stress by 2025.^[11]

Much of this increased demand will come from irrigated agriculture which is particularly sensitive to small temperature variations. Agriculture is already the main water use sector in many countries around the world and generally the sector in connection with which most water rights are held.^[12] In many jurisdictions the economic value of land tenure rights that relate to irrigable land often depends directly on the existence of adequate water rights.^[13] At the same time, demand for water from the world's rapidly growing cities is almost certain to increase. It is common, particularly in newspapers and the popular media for discussion of this subject to be held in terms of increased scarcity of water resources and of shortages. In reality, the volume of freshwater on the planet has been remarkably constant over the millennia.^[14] Increased pressure on water resources is a result of population increases as well as economic growth. In other words much of the “scarcity” of water is socially defined^[15] and a key role is played in this process by water rights that define who has access to water - and who does not. It is against this background that water rights, and decisions about water rights, will play an increasingly important role over the coming years, a role that will invariably impact on decisions and choices concerning the use of land.

Largely as a response to increased concerns about the quality and quantity of water resources, the last thirty or so years have seen many countries undertaking substantial reforms to water sector legislation and thus to water rights. In contrast to the trend towards private ownership and private rights in the land tenure sector, reforms to water legislation have seen the assertion of state control over water resources and the introduction of complex regulatory mechanisms for the allocation of administrative water rights. Furthermore, in a number of jurisdictions, such water rights have become fully tradable and there is currently much speculation as to the extent to which this approach may be replicated elsewhere.

Yet notwithstanding the importance of land tenure rights and water rights, and the fundamental relationship between the resources to which they relate, a preliminary literature search suggests that relatively little comparative analysis has been undertaken of the two regimes and the interface, or relationship, between them.^[16]

This paper sets out to begin the process of exploring that interface. It seeks to answer a number of basic questions. First of all just what are land tenure rights and water rights? Second, how do the respective regimes compare? Third what linkages, if any, are there between land tenure rights and water rights and, if there are none, does this matter, either in general or as regards specific aspects of the interface? A key objective of the paper is to examine which aspects of the rights interface merit further research. In comparing the two regimes a final subsidiary objective of this paper is to try and identify which areas, if any, in one sector can shed light on areas for future research in the other.

This paper is based on a comparative analysis of different land tenure and water regimes around the world. In this connection it is important to note the extreme variability in land and water resources among states. Although the variability in the total land area of each state can be quickly gleaned from viewing a map of the world the variability in availability water resources is equally marked, irrespective of land area.^[17] Of course the pressures on both land and water resources can only be understood by reference to population levels and, as noted above, the total useable land area within a state's borders may often depend on the availability of water. In short, each country faces unique water issues^[18] as well as unique pressures on its land resources.