Rights, Interests and the Water
Resource – Crossing the
Rubicon?
Karen Morrow
Introduction – Water Rights Contexts
• A long history – but a weak pedigree?
• A unique (and stressed) resource with multiple
uses prompting a myriad of potential claims,
including:
• Water and property law
• Water and environmental law
• Water and human rights law
Contexts II – Emerging Issues
– The ‘Right to Water’ debate in international
human rights law
• The new(ish) thinking - water law and planetary
boundaries
• Safe global boundary for
blue water consumption
4000km3/year – already
in excess of 3000km3/year
The Common Law - Riparian
Rights – Extraction
• Riparian rights – an adjunct to property (land)
law – with ultimately problematic implications
– Extraction, the orthodox view: Lord Cairn’s statement
in Swindon Waterworks Co. Ltd v Wilts & Berks Canal
Navigation Co Ltd L.R. 7 H.L. 697 at 703 approved
by the House of Lords (notably in Lord Macnaghten’s
obiter dictum) in McCartney v Lough Swilly Railway
Co. Ltd [1904] AC 301 at 307
Riparian Rights (ii)
Extraction
Three possibilities:
• Ordinary or primary purposes (domestic, cattle);
• Extraordinary or secondary purposes provided they
were:
– reasonable;
– connected with the riparian land; and
– the water was restored to the watercourse ‘substantially
undiminished in volume and unaltered in character’; and
• Purposes foreign to or unconnected with the riparian
tenement
The Agricultural and Industrial
Revolutions and Water Rights
• Common law limitations on riparian extraction rights – a question of
fact and interpretation see Rugby Joint Water Board v Walters
[1967] Ch 397;
• Statutory limitations on riparian extraction rights: Ettrick Trout
Company Ltd v Secretary
of State for the Environment and
the NRA [1995] Env LR 269;
Cargill v Gotts [1981] 1 WLR 441;
• Current thinking: the Water Bill 2012
and (some way) beyond
Private Rights – Pollution I
• The basic principle:
Young & Co. v Bankier Distillery Co. [1893] AC 691
• Private Nuisance (and the Rule in Rylands v
Fletcher):
Cambridge Water (CW) v Eastern Counties Leather
(ECL) [1994] 1 All ER 53;
Transco Plc v Stockport Metropolitan Borough Council
[2004] 2 AC 1.
• Human Rights Act Claims:
Marcic v Thames Water Utilities [2003] UKHL 66;
Dobson and Others v TWU Limited [2009] EWCA Civ 28.
Private Rights - Pollution
• The relationship between regulation
and private rights in nuisance
– Barr v Biffa Waste Services Ltd [2012] EWCA
Civ 312 per Carnwath LJ:
‘The common law of nuisance has co-existed with statutory
controls, albeit less sophisticated, since the 19th century. There
is no principle that the common law should "march with" a
statutory scheme covering similar subject-matter. Short of
express or implied statutory authority to commit a nuisance ... ,
there is no basis, in principle or authority, for using such a
statutory scheme to cut down private law rights.’
A (much) more radical approach
– Wild Law
• Rights for Nature?
Ecuador’s provision for the rights of nature in its 2008
constitution; Bolivia’s passing in 2010 of a Law of the
Rights of Mother Earth
• Rights for Rivers?
Legal identity for the
Whanganui River,
New Zealand (2012)
Conclusion
• Alea iacat est?/ The die is cast? (attributed
by Suetonius to Julius Caesar in his Lives
of the Twelve Caesars as his army
crossed the Rubicon)
• The point of no return?
• Not yet ... but soon.