A Meandering Jurisprudence of the Court – The Evolving Case Law Related to Water
Introduction Courts have for many years engaged closely with a variety of water law issues. The spectrum ranges from discussion of the fundamental right to water to irrigation and issues of water pollution. The judiciary has played an important role in adjudicating disputes on the basis of existing legal principles and statutes as well as in developing water law and water-related legal principles. Since the early 1990s, two significant changes have taken place in the water sector. These fall squarely in the context of the overall process of economic reforms and direct links between reforms in the water sector and economic reforms can be identified. Firstly, at the policy level a series of ‘water sector reforms’ have been introduced to restructure in particular the governance of the water sector with particular emphasis on the management of water. This includes, in particular, proposals to restrict the role that the government plays in managing water resources and institutional reorganisation from the local to the state level. These reforms are in line with the broader economic reforms that have swept through the country since the early 1990s. Secondly, over the past decade, an attempt has been made to entrench water sector reforms through the introduction of a series of water law reforms (Cullet, 2010:38) Most of these new laws are based on the principles of water sector reforms and seek to ensure the viability of reforms beyond project-specific interventions. These reforms have quick-started a process that will likely lead to an overhaul of water law in coming years. Over the past two decades, the response of the courts to the unfolding changes has not been linear. Indeed, the case law illustrates that courts have given completely different responses to the issues they were asked to address in different contexts and there is thus no single trend that can be identified. This chapter seeks to highlight some of the salient trends of the case law since the early 1990s in the context of water-related cases through the analysis of a limited number of selected cases. The case law reviewed here is neither limited to issues that can be strictly defined as issues of water law nor including all relevant water-related issues since water can be a factor in numerous situations in an indirect manner.