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LAND & WATER: the RIGHTS DIVERGENCE Hodgson

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LAND & WATER: the RIGHTS DIVERGENCE Hodgson LAND & WATER: THE RIGHTS DIVERGENCE Hodgson, Stephen, Environmental Lawyer [email protected] Paper prepared for presentation at the “2019 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 25-29, 2019 Copyright 2019 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies. Abstract Ensuring secure access to both land and water is key to the eradication of rural poverty and increased agricultural production. Historically the main legal traditions conceived of water rights as a component of land tenure rights. This land-based approach is no longer workable and many countries have legislated to establish permit-based water rights as part of reforms to implement integrated water resources management (IWRM), now the dominant paradigm for the water sector. The result though is a significant divergence between land and water in terms of language, conceptual approaches and basic understanding reflected by the fact that water was omitted from the Voluntary Guidelines on the Governance of Tenure. This poses particular challenges as regards irrigation, ‘land and water grabbing’, groundwater and customary law. The concept of water tenure being investigated by FAO may at least start the process of providing a common tenure-based language for practitioners while climate change will only make it more urgent to address the consequences of this divergence. 1 Introduction Ensuring secure access to both land and water is key both to the eradication of rural poverty and increased agricultural production. There is a clear linkage between poverty and lack of access to land and water, with the poorest having the least access to land and water and consequently ‘locked in a poverty trap of small farms with poor-quality soils and high vulnerability to land degradation and climatic uncertainly' (FAO, 2011). At the same time, with global population growth projections of two to three billion people over the next 40 years coupled with changing diets, irrigation will be crucial to meeting the 70 % increase in food demand foreseen by 2050 (UN WATER, 2012). As resources, land and water are, of course, of the most fundamental importance to the economy, to society, to states, to people, to life itself. And as resources, they are linked at a fundamental level: the availability of water, from one source or another, is necessary for most productive uses of land, with the availability of water rather than land increasingly the main constraint to agricultural growth (FAO, 2004) and a key driver of land values (see, for example, USDA, 2017). At the same time, activities undertaken on land have a direct impact on both the availability of water resources water in terms both of quantity, streamflow impacts as a result of deforestation and quality as result of pollution from human activities undertaken on land (including industry but also sanitation). Given the clear inter-linkages between land and water it might therefore seem reasonable to assume a high degree of coordination between the allocation of rights to land and water resources and the content or substance of such rights. And historically speaking this was, in a sense, the case. In many jurisdictions, formal water rights were a subsidiary component of land tenure rights, a right to use water resources often being dependant on the existence of a land tenure right. Customary tenure regimes also tend address land, water and other natural resources holistically within a normative framework of ‘local law’. Now, however, the reality is that the legal and policy mechanisms for the governance of land and water rights are increasingly divergent. In part this divergence results from the inadequacies of the traditional land-water linkage in the face of increased pressure on water resources as a result of both population 1 growth and climate change. Already around two billion people live in areas of ‘water scarcity’1 while by 2050 global water demand is expected to increase by 55% (UNESCO, 2014). The result, though, is that water and land, or more specifically land tenure and water rights, are the subject of separate disciplines, analysed and written about by different experts in separate books and journals, presented at separate conferences using different vocabularies, terms and concepts by separate economists and separate lawyers. Separate proposals are submitted to different policy makers in separate ministries addressed in separate policies and legislation. Today’s water session is a welcome exception although I would point out that following the land conference this week, next week is the World Bank’s Water Week with an entirely separate cast of actors… So, what? could be the response. The resources themselves are quite different, one fixed and immobile the other fluid and fugitive, and so it is quite natural that they are addressed in a different way. And, of course, in a sense this is true. The divergence has, as will be seen, taken place for rational reasons. Moreover, in part this situation is understandable simply in terms of the scale of the challenges faced by both sectors, driven in part by population growth. As regards land tenure alone, the scale of issues is immense ranging from fundamental questions as to whether the ownership of agricultural land should be even be permitted (as in the case of Ukraine), dealing with slums and informal settlements, land redistribution how to complete the recognition of customary tenure (as in the case of say Malawi), how to promote good governance, how to recognise the interests of pastoralists, safeguard the interests of women through to what might seem to outsiders to be quite arcane trivial matters, such as the issue of ground rents on long leases for new dwellings in the UK, but which are of fundamental importance to those concerned and have a strong political resonance for decision makers. In terms of water resources sector, equally difficult challenges arise, some of which will be discussed below. A further issue relates the specific nature of water rights. Unlike the emerging ‘human right to water’, which everyone holds simply by virtue of their humanity, water rights tend to be of primary concern to rural populations. The 54% of the world’s population who live in the world’s urban areas (UN, 2014) generally only have an indirect relationship with water resources: for more than half of the world’s population water arrives through a tap or pump (WHO-UNICEF, 2017) and food is purchased rather than grown. This makes it easier for urban dwellers to ignore the issue of who has legal rights to abstract 1 Which can be understood as the point at which the aggregate impact of all users impinges on the supply or quality of water under prevailing institutional arrangements to the extent that the demand by all sectors, including the environment cannot be fully satisfied (FAO, 2007). and divert from rivers, streams and other natural sources, but it is not an issue that can be ignored indefinitely. With rapidly growing urban populations, more and more pressure is placed on existing water supply infrastructure: one in four cities worldwide already experiences water insecurity (World Bank, 2016). Major world cities are facing increasingly severe water supply problems. The traditional response to increased water demand is to build more reservoirs and/or to abstract more water from rivers. However, cities are finding that potential reservoir sites have been used up and water contained in rivers is polluted. And even if the food of urban dwellers bought rather than self-grown, the question still arises: where will it come from? Agriculture is already by far the largest water use sector, accounting for 70 percent of global water withdrawals, most of which is used for irrigation (FAO Aquastat). How to meet the 70% increasing in food demand by 2050 mentioned in the first paragraph? And, of course, these challenges take place against the background of climate change which will in turn have significant impacts on both land and water resources. We come back to the point that these are two fundamental and closely linked resources. If we are not careful though we risk sleep walking into serious problems. Without a common vocabulary we risk losing the possibility even to communicate. In other words, land tenure and water rights really are of relevance to everyone. Building on, and updating, an earlier FAO study (FAO, Land and Water the Rights Interface, (2004), FAO, Rome), the aim of this paper is to trace how water rights have diverted from land tenure rights, to identify the implications of this divergence and to seek to identify possible new approaches and areas for intervention so as to promote policy coherence. It is set out in five parts including this introduction. In part two the historical linkage between land tenure rights and water rights is set out while the process of divergence is described in part three. Some practical implications of the land tenure/water rights divergence are considered in part four while preliminary conclusions are drawn in part five which also briefly describes a potentially promising new approach that may seek, if not to stem the divergence, provide the basis for a common land-water vocabulary. 2 The historical linkage between land tenure rights and water rights Since ancient times, societies have conferred enforceable rights to use, access, own or otherwise hold land and water resources. Such rights generally serve the same basic purposes: they permit the orderly allocation of valuable resources while at the same time conferring upon the holder the necessary security to invest in the resource or activities entailing its use. In many parts of the world, particularly in rural areas, long-standing rules of customary or local law still determine land and water rights.
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