The Challenge of Sustainability
New Horizons in Environmental and Energy Law series
Chapter 16: Water Rights as Regulatory Instruments
THE SOURCES OF WATER RIGHTS The community through its institutions is responsible for the way in which water resources are managed. But the community and each individual member of it are the beneficiaries of the way the water resources are managed. The function of the law is to promote and protect not only the public interest but also the interests of each and every member of the relevant society. These interests may differ; they may conflict; but it is the function of the law to accommodate them. The public interest is promoted and protected in accordance with constitutional arrangements, strategies, policies, the development and operation of planned infrastructure, the implementation of planning arrangements and the enforcement of legal rules. But how are the interests of individual members of society protected? The simple answer is by the recognition, creation and protection of rights. But rights perform different functions within the legal system. Our attention turns now to a review of the way water rights are continuing to play a significant role as instruments for water resources governance. The focus is not on the rights of the state or of the public sector but on those of persons – individual or corporate – in the private sector: in other words those who use or benefit from the use of the water in question. This includes – rather paradoxically – water rights designed to protect ecological values. The role played by water rights recognises the wide variety of interests in water and water resources. The interest may...
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