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.