| Summary: |
Groundwater law has been structured around a direct relationship between access to land and control over groundwater since the middle of the nineteenth century. The premises for the existing legal framework are not suited to today’s conditions. The present rules governing groundwater use essentially assume that it is a private resource whereas groundwater is today the most widely used source of water for realising the fundamental right to water and is therefore the most common source of water for the majority of people. Further, the present rules are based on an understanding of regulation based around individual plots of land whereas groundwater needs to be regulated at the level of the aquifer. In addition, the present rules are structured around use whereas today it is protection of groundwater at aquifer level that should be the first priority of the legal framework. In this context, it is urgent to rethink groundwater law to recognise the nature of groundwater as a commons, to put protection at the very centre of the regulatory regime, to ensure that it is regulated firstly at the local level because it is used locally and to ensure that the regulatory regime effectively contributes to the realisation of the fundamental right to water. These principles are partly enshrined in the Groundwater (Sustainable Management) Bill, 2017, which provides an appropriate template to rethink groundwater law for the 2020s.
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